This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)

This article explores the formal and functional characteristics of narratives of ‘good’ and ‘bad’ deaths as they were told by 13 UK-based hospice managers in the course of semi-structured interviews. The interviewees’ responses include a variety of remarkably consistent ‘narratives of successful/frustrated intervention’, which exhibit distinctive formal characteristics in terms of the starting point and core of the action, the choice of personal pronouns and metaphors, and the ways in which positive and negative evaluation is expressed. In functional terms, the (...) hospice managers’ narratives play an important role in representing and constructing their professional views, challenges and identities. Overall, the narratives argue for the role of hospices and professional hospice staff in facilitating a ‘good’ death, and, by presenting a relatively unified view, may potentially preclude alternative perspectives. (shrink)

Many philosophers think that punishment is intentionally harmful and that this makes it especially hard to morally justify. Explanations for the latter intuition often say questionable things about the moral significance of the intent to harm. I argue that there’s a better way to explain this intuition.

Con objeto de establecer las bases de un castigo penal justo, H.L.A. Hart propone una visión alternativa a las versiones tradicionales. El planteamiento de Hart muestra que los enfoques principales no han superado problemas de incuestionable importancia: la justificación moral del castigo penal y su aplicación justa. En este sentido, el trabajo de Hart se sitúa entre el consecuencialismo y el retribucionismo. De esta manera, si un castigo está justificado debe tener buenas consecuencias para la sociedad castigando sólo a quien (...) lo merece. Finalmente, la propuesta de Hart conectará con su concepción del Derecho dando a los individuos las capacidades de guiar su propia vida con previsión, confianza, seguridad y libertad. In order to establish the basis of a fair criminal punishment, H.L.A. Hart proposes an alternative view to the traditional versions. Hart’s approach shows that the main approaches have not overcome problems of unquestionable importance: the moral justification of criminal punishment and its fair application. In this sense, Hart’s work is between consequentialism and retributivism. In this way if a punishment is to be justified must have good consequences on society punishing only those who deserve it. Finally, Hart’s approach will connect with his own conception of law giving individuals the capacities to guide their own life with foresight, confidence, security and freedom. (shrink)

This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper (...) offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed. (shrink)

How can personal identity be determined in such a way that developments, experiences and other dynamic and context-dependent aspects of that identity can be taken into account? For several decades now, the narrative, the story, has often been referred to in answering this question as a cognitive instrument that can adequately deal with those aspects. The monologue thus appears to present itself as a medium in which personal or autobiographical identity is formed. However, what happens when we place the identity (...) narrative in a dialogue: when two people with very diverse backgrounds have a dialogue that touches on their identity? Does this perhaps provide an entirely new challenge and enrichment of that narrative, which can have a major impact on both the individual and the relationship? I want to explore these questions in this article, motivated by both the philosophical perspective and my experiences as co-initiator of the "Keti Koti Table", in which such a dialogue plays a central role. To this end, I will first discuss the dynamic aspects of the narrative, in which the phenomenon of "refiguration" as presented by Ricoeur is key. This is then discussed in the context of the dialogue. In § 4 I discuss the specific dialogue method that we have developed for the Keti Koti Table. Subsequently, in § 5, some experiences of participants are discussed, whose identity refigurations are analyzed under the influence of the dialogue in § 6. It is concluded with a brief conclusion about the special significance of the dialogue for the narrative self-constitution in a diverse society. (shrink)

Some fictions deliberately omit all fictional statements about the mental functioning of fictional agents. This presents an interpretive dilemma, as when we read fiction we ought to reconstruct the fictional minds of characters significant to the plot. Fictions that present the reader with an opaque fictional mind resist the general imaginative project prescribed by fiction-making and seem to demand a novel approach to imagining their fictional entities. Such fictional entities demand the reader commit to one of at least two different (...) ways of imagining nothing about a fictional mind, without explicitly authorizing either. One approach has already been described by H. Porter Abbott. Another can be extracted from Simone De Beauvoir, whose ethics of ambiguity is well suited to dealing with fictional entities about which nothing is fixed nor determined. (shrink)

How can we explain the intentional nature of an expert’s actions, performed without immediate and conscious control, relying instead on automatic cognitive processes? How can we account for the differences and similarities with a novice’s performance of the same actions? Can a naturalist explanation of intentional expert action be in line with a philosophical concept of intentional action? Answering these and related questions in a positive sense, this dissertation develops a three-step argument. Part I considers different methods of explanations in (...) cognitive neuroscience (Bennett & Hacker’s philosophical, conceptual analysis; Marr’s three levels of explanation; Neural Correlates of Consciousness research; mechanistic explanation), defending ‘mechanistic explanation’ as a method that provides the necessary tools for integrating interdisciplinary insights into human action. Furthermore, a dynamic, explanatory mechanism allows the assessment of the impact of learning and development on expert action in a valuable way that other methods don’t. Part II continues by scrutinizing several cognitive neuroscientific theories of learning and development (neuroconstructivism; dual-processing theories; simulation theory; extended mind/cognition hypothesis), arguing for the complex interactions between different types of processing and different action representations involved in expert action performances. Moreover, according to our discussion of a particular ‘simulation theory’ these interactions can be influenced in several ways with the use of language, allowing an agent to configure a specific action representation for performance at a later stage. The results of Parts I and II are then applied in Part III to a parallel discussion of philosophical analyses of intentional action (discussing i.a. Frankfurt, Bratman, Pacherie and Ricoeur) and cognitive neuroscientific insights in it. Both approaches are found to converge in emphasizing the importance for an expert to develop stable patterns of actions that comply maximally not only with his intentions, but also with his motor expertise and with situational conditions. Consequently, his actions – automatic, or not – rely on this ‘sculpted space of actions’. (shrink)