Criminal Law

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in (...) the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws in action.

In this short essay, I suggest a few specific ways in which criminal law exceptionalism has shaped the theory and practice of criminal law. First, criminal law exceptionalism isolates criminal theory from legal theory more generally, with the result that criminal theorists often miss insights from other legal fields. Relatedly but more broadly, criminal law exceptionalism can make sociology, psychology, history, and political theory invisible or seemingly irrelevant to criminal theory. Together, these two forms of scholarly insularity put criminal theory (...) into a silo in which the political, social, and historical contexts of actual criminal legal practices disappear from view. Ultimately, the siloed thinking of criminal law exceptionalism makes it difficult or impossible to contemplate a world without criminal law. Thus criminal law exceptionalism does its ideological work: it produces and reinforces the belief that criminal law is indispensable, a belief that in turn motivates policy choices and informs legal practices. (shrink)

The paper defends an interactive theory of the distinctiveness of criminal law. It argues that criminal law’s distinctive behavior can be connected to the interaction between five traits: it is an institutional practice administered by a large and special bureaucracy, playing a substantial role in authorizing the use of coercive police force, leading to a harsh sanctioning regime linked, at least in part, with core wrongs and notions of personal responsibility. Although none of these features is exclusive to criminal law, (...) their interaction leads to modes of behavior that set it apart from other institutions. The paper argues that putting attention on the effects of this interaction provides us with powerful tools to both understand and asses the value and problems of criminal law. (shrink)

Law-enforcement agencies are increasingly able to leverage crime statistics to make risk predictions for particular individuals, employing a form of inference some condemn as violating the right to be "treated as an individual". I suggest that the right encodes agents' entitlement to fair distribution of the burdens and benefits of the rule of law. Rather than precluding statistical prediction, it requires that citizens be able to anticipate which variables will be used as predictors, and act intentionally to avoid them. Furthermore, (...) it condemns reliance on various indexes of distributive injustice, or unchosen properties, as evidence of law-breaking. (shrink)

This is a review of Larry Alexander and Kim Ferzan’s Reflections on Crime and Culpability, a sequel to the authors’ Crime and Culpability. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing legal (...) theory, some of which are explored in this essay. (shrink)

Courts established over a century ago that a corporation, like an individual, should be held criminally responsible for its misconduct. Nevertheless, the practice still faces steep resistance rooted in skeptical worries about both the possibility of, and the purpose behind, holding collectives accountable. My dissertation refutes both skeptical worries—and, in doing so, brings together diametrically opposed approaches to corporate regulation. Chapter I situates the project in its historical context. Regulation of commercial activity originally occurred through corporate law: states looked inside (...) the corporation to oversee its structure, purpose, and even day-to-day managerial decisions. The development of corporate-criminal liability reflects first corporate law’s inability to regulate sophisticated commercial entities and second the inadequacy of the conception of personhood this strategy presupposed. Chapter II draws on contemporary scholarship to offer a pragmatic conception of personhood, one consistent with the nascent conception courts developed to justify the expansion of criminal liability to corporations. On this account, corporations can satisfy stringent prerequisites for legal personhood—in particular, criminal law’s mens rea requirements. The second half of the dissertation reimagines corporate law as a tool for improving criminal punishment, rather than as a standalone, alternative approach to corporate regulation. Chapter III defends the use of criminal fines against complaints that fines merely harm innocent individuals, and further demonstrates that the State could better deter corporations while minimizing harm to innocents through corporate-law reforms that encourage those inside the corporation to voluntarily shift the distribution of harm towards culpable members. Chapter IV goes further to use corporate-law reform as punishment in and of itself. Among other things, standard objections to reform fall away when relocated from the ordinary commercial context to the rarefied space of criminal punishment. Meanwhile, corporate-reform-as-punishment expresses penological justifications traditionally inapplicable to corporations because of the lack of suitable alternatives to punishments like imprisonment. Incorporating corporate-law reform into our criminal practices thus expands the range of justifications for punishing corporations. (shrink)

The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.

This article considers the four eyewitness threshold for zinā’ in Islamic criminal law. In some Muslim-majority countries where zinā’ remains an offence, judiciaries have by-passed the threshold by accepting singular confessions from male fornicators or, otherwise, inferring fornication from pregnancy outside of marriage. As a result, a disproportionate number of women have been prosecuted, convicted, and even punished for zinā’. I assert that the four-eyewitness threshold allows for an alternative way to view zinā’ that can result in a different set (...) of consequences. If the threshold is taken seriously such that it becomes the only evidentiary basis upon which a zinā’ conviction can be entered, it will create an effective or de facto exemption where alleged perpetrators can never be convicted, except in the rarest cases where four independent eyewitnesses can be corralled. If adopted, this approach would provide a principled basis to reject opportunistic confessions that deflect punishment to accused female fornicators. And as an ‘internal’ solution that arises within the framework of the sharī’a, a de facto exemption approach is more likely to be perceived as legitimate when compared with proposed solutions that find their basis in international human rights legal instruments. (shrink)

A correction to this paper has been published: https://doi.org/10.1007/s10551-021-04827-y.

Alex Sarch’s recent book, Criminally Ignorant: Why the Law Pretends We Know What We Don’t is a wonderfully rich work.1 Sarch provides and defends an explanatorily powerful theory of criminal culpab...

Journal of Applied Philosophy, EarlyView.

A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or ‘tracing’ approach, i.e. an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it can’t account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it can’t account for why, when considering whether a defendant is negligent, what counts as a risk should be (...) assessed relative to the defendant’s evidence. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of (...) incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

The law values fairness, proportionality, and predictability. Accordingly, in the context of criminal law, punishments should be carefully calibrated to reflect the harm caused by an offense and the culpability of the offender. Yet, while this would suggest the dominance of “smooth” input/output relationships—for example, such that a minuscule increase in culpability would result in a correspondingly small increase in punishment—in fact, the law is laden with “bumpy” input/output relationships. Indeed, a minuscule change in input may result in a drastic (...) change in output, creating significant discontinuities. Leading scholars have argued that smooth input/output relationships, which feature careful gradation and calibration, better accord with dominant theories of punishment than do bumpy relationships, which lack fine-tuning. Accepting as a starting premise that smooth input/ output relationships are to be preferred in the criminal law, this Article focuses on the significant doctrinal and practical impediments to smoothing out these relationships. This analysis reveals challenges to smoothing out relationships between inputs and outputs, as well as the difficulties associated with addressing discontinuous relationships among inputs and outputs. Specifically, it exposes the law’s classification of inputs and outputs itself as contestable and responsible for a range of hard-to-resolve discontinuities. In doing so, this Article begins the task of laying the groundwork for further analysis and possible reforms. (shrink)

The aim of the article is to analyze the processes of anti-democratization as a violation of the idea of the rule of law in the context of changes and directions of criminal policy and criminal justice system, on the example of Polish legislation. Activity of the legislator in the field of criminal law was confronted with the liberal-democratic philosophy of criminal law, which searches for the justification for punitive repression in a social consensus, fair procedures for reaching an agreement, and (...) democratic mechanisms, while maintaining the ideals of social and axiological pluralism. These are the limits of the recognition of criminal law as just. Anti-democratization means that limits are exceeded, which constitutes a precedent and a challenge for the contemporary philosophy of criminal law. (shrink)

Philosophical debates on punishment mainly - and exhaustively - revolve around the traditional dipole “retribution - deterrence”; or, lately, seek for some alternative counterproposal. In all sides of the debates, Kant is standardly depicted as the advocate of a traditional, outmost punitive theory of justice; the kind of heritage modern-day “retributivists” seek to reassess, while “preventive” or “restorative” justice defenders aim to abandon. In the present paper, we intend to scrutinize Kant’s own views on crime and punishment, as an integral (...) part of his overall legal-practical philosophy; and, by doing so, to address that Kant is not at all the blind retributivist the above theorists perceive; what is more, he sets a philosophical framework that is able to overcome the flaws of all three, standard conceptions of criminal justice. Finally, in the light of the above, we bring forth the aspects of this Kantian framework, that are useful in assessing current legal systems and required legal reforms. (shrink)

The will theory of rights has so far been considered incapable of accounting for individual rights in criminal law. Adherents of the theory, therefore, defend the claim that criminal law does not assign rights to individuals. In this article I argue that criminal law in fact does assign rights to individuals and that the will theory of rights may enhance our understanding of these rights. I admit that if the theory is understood as a descriptive account, it cannot encompass rights (...) conferred by criminal law. If the theory, however, is understood as a normative theory, it can be applied to an analysis and assessment of criminal legal rules and restrictions. The aim of this article is first, to outline how a normative account of the theory is applicable for a justification of the criminal legal protection of individual entitlements. Second, the major implications of the approach are outlined. The normative will theory on the one hand includes a volenti non fit iniuria principle. On the other hand, it provides support for an idea of punishment as restitution. (shrink)

English abstract: On last day of the year 1999, Russia has entered another era of despotism, that of Vladimir Putin. During his reign, the Putin‘s clan has undermined and infiltrated the mass media, the parliament and the judicial system. Deliberate violation of basic citizen‘s rights, compulsory acquisition of property, government-funded racket, misuse of mass media to scarify and to disinform the peoples belong to the diabolic methods of self-constituted disposers. All this lawlessness has led to exorbitant corruption, mass poverty, economic (...) stagnation, and escalation of crimes. The actual manuscript investigates the roots of Putinism putting the person of Vladimir Putin in the focus of investigation. -/- Russian abstract: В 1999 году, в последний день столетия и тысячелетия, Россия вступила в новую эру деспотизма, эру Владимира Путина. В продолжение его правления, клан Путина коррумпировал и инфильтрировал средства массовой информации, парламент, правовую систему. Умышленное нарушение основных гражданских прав, конфискация собственности, государственный рэкет, злоупотребление средств массовой информации с целью запугивания и дезинформации населения стали дьявольскими методами самоназванных правителей. Всё это привело к безмерной продажности, массовой бедности, экономической стагнации и взрыву преступности. Данный манускрипт исследует корни Путинизма, помещая личность Владимира Путина в центр исследования. (shrink)

Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder’s cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to (...) evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind norms, teleological directives, (...) rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

The exhibition by the Whitney Museum of American Art of a painting of the lynched Emmett Till by a white woman artist in its Biennial survey exhibition in 2017 caused a controversy that went to the heart of the contemporary art world in the United States. There was a demand made by a group, writing on behalf of artists of color that the painting be removed and destroyed. That demand gave birth to an intensive and very public conversation among important (...) critics, members of academia, and artists. What is the role of identity in art creation and exhibition? Implicitly, what is the role of gatekeepers who can influence the direction of the art market through promoting the work of some artists and not others? What are the obligations of major institutions in shaping public opinion? I seek to test the public responses to the painting and its challengers against what can be seen with sustained observation in the painting itself. Do the issues inhere in the painting or was the painting captured for an external conversation? I hope that this is an example of what evidence that kind of observation can provide—a matter of interest not just in the discourses of art but also of evidence in the context of the law. (shrink)

Because Arthur ‘Weegee’ Fellig’s crime scene photographs have become the standard for visually representing crime scenes in popular culture, this paper examines the extra-legal lives of two of his images, both of which were produced at the site of a gangster’s death in 1936. To decode the crime scene photograph is to interrogate the ways in which we make sense of crime through seeing and narrating. To that end, this paper charts how these two crime images were contextualized first in (...) a tabloid narrative that invited viewer identification with the law enforcer, and later in Weegee’s own autobiographical narrative as a hardboiled photographer. In contrast to these human ways of seeing and narrating, the images are then examined through computer vision. By moving across these different ways of human and nonhuman seeing, we are arrested anew by the crime scene photograph as different narrators make clear, often for different audiences, who and what it is that we are looking at. Our visual point of focus, in turn, tells us how we engage with crime images at the mediated intersection of law and popular culture; it reveals how viewers identify with the law as a result of an image’s visual structure, as well as through representational exchanges that blur the edges between fact and fiction. (shrink)

Our understanding of folk and scientific psychology often informs the law’s conclusions regarding questions about the voluntariness of a defendant’s action. The field of psychology plays a direct role in the law’s conclusions about a defendant’s guilt, innocence, and term of incarceration. However, physical sciences such as neuroscience increasingly deny the intuitions behind psychology. This paper examines contemporary biases against the autonomy of psychology and responds with considerations that cast doubt upon the legitimacy of those biases. The upshot is that (...) if reasonable doubt is established regarding whether psychology’s role in the law should be displaced, then there is room for future work to be done with respect to the truth of psychology’s conclusions about criminal responsibility. (shrink)

Retributivism is one of the most prevalent theories in contemporary penal theory. However, despite its popularity it is frequently argued that too little attention has been paid to the implications of retributivism for prison management and prison life, including prison visits and furlough. More so, it has been questioned both whether the various forms of retributivism found in the philosophical literature on criminal punishment have anything to say about what prison life ought to be like and whether they are able (...) to criticize deeply contested rules and practices, such as those that deny inmates contact with family-members for the sake of prison discipline. In this paper, we argue that prison visits and furlough have a crucial role in a prison system based on retributivist principles. In particular, we argue that the communicative theory of punishment has important theoretical resources for proving a strong and compelling rationale for both furlough and visitation on retributivist grounds. Besides exploring this rationale, we also discuss the practical implications of this view for the penal policy. (shrink)

In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes and two fine monographs by Farmer and Tadros. It will shape the field for decades to come; and it has (...) decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility. (shrink)

The individualist nature of much contemporary just war theory means that we often discuss cases with single attackers. But even if war is best understood in this individualist way, in war combatants often have to make decisions about how to distribute harms among a plurality of aggressors: they must decide whom and how many to harm, and how much to harm them. In this paper, I look at simultaneous multiple aggressor cases in which more than one distribution of harm among (...) aggressors is available. I show how such cases pose deep questions concerning the nature, role, and scope of the necessity principle, and its relationship to both liability and narrow proportionality. I argue that a hitherto unrecognised measure – ‘narrow proportionality shortfall’ – and its distribution is relevant in choosing how to distribute harms across aggressors. I then extend this analysis to show how this may help us with a puzzle concerning sequential attacks. (shrink)

This essay offers a new way to conceptualize the “police violence against Blacks” phenomenon. I argue that we should see the situation as an instance of what Thomas Hobbes called the state of nature, that is, a state without effective law. This understanding of the phenomenon stands in sharp contrast to that offered by Professor Michelle Alexander in her book The New Jim Crow. Alexander sees the phenomenon as a continuation of centuries-old patterns of state-backed anti-Black racism. My account is (...) that police are not under control of the state in their interactions with Blacks. (shrink)

Crime takes its toll on any community. Crime does not always make a criminal. Therefore, punishment, once served, should be adequate for reconciliation and not deprive a person of life, liberty, and a remunerable career. Taking an honest look at the system is taking an even more honest look at the self and how it treats other people.

The evolution of the understanding of evidence-based proof and decision processes in the law, especially criminal law, and standards of proof in this area, has a long-standing and controversial history. Competing accounts cause the legal scholarship to engage in critical and thoughtful exchanges. Some of the divergent views reflect different methodological perspectives similarly recognized in other fields, such as applied psychology and economy, and the broader interdisciplinary research fields of judgment and decision-making, system analysis and decision science. One such methodological (...) perspective asserts that accounts of juridical proof should provide a description and explanation of how the legal system actually works as a whole. Other—more mathematical and analytical accounts—concentrate on how, ideally, legal decision-making under uncertainty ought to be made in order be considered sensible. This paper focuses on the relative plausibility account advocated by Professors Allen and Pardo as an example of the former perspective. Its logical structure and argumentative implications are analysed using elements of decision theory, which is the prime representative of the latter, more mathematical approach to legal proof. Using formal diagrammatic schemes to depict the structural relationships between the core elements of the two accounts, it is demonstrated in what sense they can be considered logically related and congruent. The demonstration shows that the principal disagreements among the proponents of the two examined theories derive from differences in the criteria used to judge the adequacy of competing accounts of legal decision-making, and the level of formalization of the bases of decisions in each candidate account. This structural analysis supports the view that adherence to one or the other of the examined perspectives does not imply a contradiction, but reflects the coverage of different aspects of the same overall decision architecture. Using decision-theoretic notions, our analyses also provide a way to explain RP decisions through an explicit criterion, thus providing a reply to the recurrent critique that RP theory lacks specific means to justify its decisional framework. (shrink)

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks (...) being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem. (shrink)

This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly introduces each of the papers that comprise the Special Issue.