Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of the latter, (...) two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (shrink)

This paper tries to explain against the backdrop of the history of German criminal theory why and in which way the fault elements are seen differently in Germany and in Anglo-American countries. It shows how Feuerbach’s psychological model of guilt convinced Feuerbach’s German contemporaries in the 19th century that the suppression of the actual will to violate a criminal prohibition must be the reason for punishment. For such deterrence theory, direct intention is the central criterion of imputation. There is no (...) room for extensions like indirect intention. The resulting gap was filled by representatives of the will theory who created dolus eventualis as a criterion of imputation. The paper then concentrates on the gradual change which dolus eventualis has undergone due to the development of a ‘normative’ concept of guilt, i.e. a perception of guilt as a failure to live up to certain expected standards. It is outlined how the normative concept of guilt has facilitated Welzel’s decision to transplant dolus from the guilt level to the level of definitional elements. Transferring dolus to the definitional level led to a further change from a primarily voluntative to a cognitive content of the notion. It became appropriate to view dolus eventualis as acceptance of the prohibited state of affairs. For reasons of clarification the terms dolus eventualis and recklessness are compared in an annex to the paper. (shrink)

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those (...) norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)

In the court of law, a person can be punished for attempting to commit a crime. An open issue in the study of Artificial Intelligence and Law is whether the law of attempts could be formally modelled. There are distinct legal rules for determining attempted crime whereas the last-act rule (also called proximity rule) represents the strictest approach. In this paper, we provide a formal model of the last-act rule using structured argumentation.

In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan, Chiao, Walen ]. We then turn to some (...) influential theories that articulate a direct role for intentions [e.g., Duff, Husak ]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing. (shrink)

I defend the principle that a person is blameworthy for her action only if that action was morally wrong. But what should we say about an agent who does the right thing based on bad motives? I present three types of cases that have these features. In each, I argue, the agent is not culpable for her action; however, she violates the norm of moral responsibility, and thus acts in a morally irresponsible way. This analysis, I show, has several virtues. (...) It also has important theoretical ramifications: it allows for a more nuanced approach to moral luck and paves the way for an unexplored line of defense in favor of a particular norm of moral responsibility. (shrink)

It has often been suggested that people’s ordinary capacities for understanding the world make use of much the same methods one might find in a formal scientific investigation. A series of recent experimental results offer a challenge to this widely-held view, suggesting that people’s moral judgments can actually influence the intuitions they hold both in folk psychology and in causal cognition. The present target article distinguishes two basic approaches to explaining such effects. One approach would be to say that the (...) relevant competencies are entirely non-moral but that some additional factor (conversational pragmatics, performance error, etc.) then interferes and allows people’s moral judgments to affect their intuitions. Another approach would be to say that moral considerations truly do figure in workings of the competencies themselves. It is argued that the data available now favor the second of these approaches over the first. (shrink)

Uno de los temas centrales de la teoría penal contemporánea es la discusión a favor y en contra de la punición igualada de tentativas y delitos consumados. Este problema es comúnmente analizado desde la perspectiva de la suerte. La meta de los defensores de la punición igualada es erradicar a la suerte de los juicios de responsabilidad penal. Para hacerlo, antes deben diferenciar entre la suerte que afecta los resultados de las acciones y otras clases de suerte involucradas. Rivera López (...) trató de justificar tal límite en el campo de la moral, y si sus ideas pudieran trasladarse al reino del derecho penal podrían ser de gran ayuda para los partidarios de la punición igualada. Aquí trato de plantear algunas observaciones críticas a sus tesis y mostrar que, en última instancia, ellas no pueden dar apoyo a la postulación subjetivista. (shrink)

A critical discussion of Gideon Yaffe's "guiding commitment" account of attempts, with special reference to attempts in the criminal law.

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

Knobe's laudable conclusion that we make sense of our social world based on moral considerations requires a development account of human thought and a theoretical framework. We outline a view that such a moral framework must be rooted in social interaction.

This is a study of possession offences, with the focus on those intended to penalise the risk of a serious harm. Offences of this kind are examined in the light of basic doctrines of the criminal law, and in the light of the proper limits of endangerment offences. They are found wanting in both respects, and are also found to pose particular sentencing problems. The conclusion is that many risk-based possession offences are unfair, save those that require proof of a (...) further intent or those aimed at a failure properly to safeguard a dangerous object. (shrink)