As a party to the United Nations Convention Against Torture, the United States is under an obligation to criminalize all state torture. The aim of this article is to show that the United States has failed to fulfill that obligation and should correct that failure by broadening the respective definitions of “torture” in two federal criminal statutes, the War Crimes Act and the Torture Act. The broader definition that is proposed is formulated with an eye to minimizing ambiguity (...) and vagueness, avoiding both overcriminalization and undercriminalization, and facilitating accurate determinations of guilt or innocence. (shrink)

Cécile Fabre's monumental work Cosmopolitan Peace offers a thorough investigation of the responsibilities that agents incur through their involvement in armed conflict. However, her analysis fails to acknowledge the central role that states play in initiating and orchestrating acts of war. I argue that states are corporate moral agents, who are morally responsible for their own wrongdoings during an unjust war, and that this argument is compatible with Fabre's cosmopolitan premises. I then suggest that a systematic account of criminal (...) liability in the aftermath of a war should acknowledge the role that states play in orchestrating wars and committing war crimes. (shrink)

Criminal law as public law -- Criminal law as public law -- Criminal law as public law -- Mass incarceration and the theory of punishment -- Reasons to criminalize -- Formalism and pragmatism in criminal procedure -- Responsibility without resentment.

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to (...) protect the legitimacy of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with (...) exclusion including restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue (...) against it by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

In this essay we explain some of the problems of the Venezuelan criminal justice sub-system and, in general, the criminal law enforcement. That is to say, that which is expressed in the persecutory actions of the investigating authorities and the criminal courts, after having established in Venezuela a Carl Schmitt concept of Dual State with the purpose of eliminating “bourgeois” democracy and implanting the model of so-called Socialism of the XXI Century. In this sense, it is (...) a question of identifying the flagrant persecution and violation of human rights of those who do not have the capacity to resist the attacks emanating from the State in the abusive use of coercion and legal violence. With the Dual State want to impose an utopia by force, which leads to dystopia, due to the division and polarization of society with the dichotomous politics of friend-enemy, In a process of etiquette and "demonization" of the enemy. (shrink)

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private (...) individuals. This hypothesis has given rise to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction. (shrink)

Journal of Political Philosophy, EarlyView.

Journal of Political Philosophy, EarlyView.

The chapter concerns the relationship between the justification of criminal law and punishment and the justification of the state. It briefly surveys the debate between retributivists and consequentialists and argues that both are inappropriate when it comes to state punishment. It next turns to arguments by Vincent Chiao, Malcolm Thorburn, and Antony Duff that locate criminal law and punishment in public law. The final parts of the chapter develop an account of criminal law and punishment (...) as best understood as constitutive elements of a liberal political community necessary to ensure stability, to reinforce the commitment of the members to the rules as regulative of their plans of life, and to communicate and censure the offender for the wrong that has been done. (shrink)

Journal of Political Philosophy, EarlyView.

Journal of Political Philosophy, EarlyView.

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary (...) practice, designed to reintegrate offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment. (shrink)

Criminal responsibility is now central to criminal law, but it is in need of re-examination. In the context of Australian criminal laws, Self, Others and the State reassesses the general assumptions made about the rise to prominence of criminal responsibility in the period since around the turn of the twentieth century. It reconsiders the role of criminal responsibility in criminal law, arguing that criminal responsibility is significant because it organises key sets of (...) relations - between self, others and the state - as relations of responsibility. Detailed studies of decisive moments and developments since the turn of the twentieth century, and original explorations of relations of responsibility, expose the complexity and dynamism of criminal responsibility and reveal that it is the means by which matters of subjectivity, relationality and power make themselves felt in the criminal law. (shrink)

In a recent book, Neil Levy argues that culpable action – action for which we are morally responsible – is necessarily produced by states of which we are consciously aware. However, criminal defendants are routinely held responsible for criminal harm caused by states of which they are not conscious in Levy’s sense. In this chapter I argue that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance (...) of an act is too strict, and that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. (shrink)

In The Ambivalent State Javier Auyero and Katherine Sobering examine the fascinating world of clandestine relationships between police officers and drug dealers in Argentina. Drawing on a unique combination of ethnographic research and hundreds of pages of wiretapped phone conversations, they analyze the inner-workings of police-criminal collusion and how they shape drug markets, policing in poor urban areas, and daily life at the urban margins.

Jonathan Jacobs examines the injustice of incarceration in the U.S. and U.K., both during incarceration and upon release into civil society. Situated at the intersection of criminology and political philosophy, Jacobs's focus is on moral reasoning, and he argues that the current state of incarceration is antithetical to the project of liberal democracy, as it strips incarcerated people of their agency. He advocates for reforms through a renewed commitment to the values and principles of liberal democracy and proposes a (...) retributivist conception of sanction to reform the criminal justice system and emphasizes the importance of proportionality. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals (...) a pressing need for change. (shrink)

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble (...) making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter. (shrink)

An advanced degree in criminal justice can open doors far outside traditional criminal justice practice, making it a highly in-demand course. This current study aimed to assess the viability of J.H. Cerilles State College to offer a Master of Science in Criminal Justice with Specialization in Criminology (MSCJ) in 2021. A descriptive survey type of research was employed as the methodology for this study. The 215 respondents from students, graduates, and professionals in the field from private (...) and government institutions were chosen via random sampling to answer the online survey questionnaire. Management viability, market viability, operation viability, location viability, and industry viability were all evaluated. There was evidence to suggest that offering MSCJ in the college is doable, provided that the curriculum will be tailored to account for community needs and industry demands. In meeting future demand for this field of study, constant improvements in school facilities, instruction, research, and extension should be made. The methodology utilized in this study can be replicated in a future feasibility assessment, which may also include other areas that were not covered in this study. (shrink)

Through a detailed analysis that draws on work across philosophy, the law, and social psychology, this book shows that, from the very beginning of the American criminal legal process in interrogation rooms to its final stages in front of parole boards, testimony is extracted from individuals through processes that are coercive, manipulative, or deceptive. This testimony is then unreasonably regarded as representing the testifiers’ truest or most reliable selves. With chapters ranging from false confessions and eyewitness misidentifications to recantations (...) from victims of sexual violence and expressions of remorse from innocent defendants at sentencing hearings, it is argued that there is a distinctive epistemic wrong being perpetrated against suspects, defendants, witnesses, and victims. This wrong involves brute State power targeting the epistemic agency of its citizens, extracting false testimony that is often life-shattering, and rendering the victims in question complicit in their own undoing. It is concluded that it is only through understanding what it means to respect the epistemic agency of each participant in the criminal legal system that we can truly grasp what justice demands and, in so doing, to reimagine what is possible. (shrink)

As assisted reproductive technologies become increasingly popular, debate has intensified over the ethical justification for restricting access to ART based on various medical and non-medical factors. In 2010, the Australian state of Victoria enacted world-first legislation that denies access to ART for all patients with certain criminal or child protection histories. Patients and their partners are identified via a compulsory police and child protection check prior to commencing ART and, if found to have a previous relevant conviction or (...) child protection order, are given a “presumption against treatment.” This article reviews the legislation and identifies arguments that may be used to justify restricting access to ART for various reasons. The arguments reviewed include limitations of reproductive rights, inheriting undesirable genetic traits, distributive justice, and the welfare of the future child. We show that none of these arguments justifies restricting access to ART in the context of past criminal history. We show that a “presumption against treatment” is an unjustified infringement on reproductive freedom and that it creates various inconsistencies in current social, medical, and legal policy. We argue that a state-enforced policy of restricting access to ART based on the non-medical factor of past criminal history is an example of unjust discrimination and cannot be ethically justified, with one important exception: in cases where ART treatment may be considered futile on the basis that the parents are not expected to raise the resulting child. (shrink)

Preventing future crime has become an increasingly dominant function of the criminal law of many liberal democracies. This “preventive turn” has led to a profound debate on the legal and ethical boundaries of the “preventive state.” However, the concept at the core of preventive justice—the dangerousness of the offender—has attracted relatively little attention in the current debate. This is remarkable, as the legal establishment of dangerousness permits intrusive preventive measures, such as preventive detention for an indeterminate period of (...) time. In the past, various concepts of dangerousness have been developed by criminal law scholars. We discuss these concepts in a chronological order to demonstrate how the meaning of dangerousness has evolved over time, and how it has been shaped by concurrent developments in forensic psychiatry and penology. Our description of the state of the art of legal scholarship on the concept of dangerousness also shows the lack of a fully developed theory of dangerousness, and therefore the necessity of further research. We identify five “aspects” of the concept of dangerousness on which scholars have widely diverging views. These five aspects are intended to guide further research on the concept of dangerousness in preventive criminal law. (shrink)

This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be (...) entitled to claim a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary. (shrink)

This paper investigates, from a philosophical perspective, whether high functioning autists are legally responsible for the crimes they may commit. We do this from the perspective of the Croatian legal system. According to Croatian Criminal Law, but also criminal laws adopted in many other countries, the legal responsibility of the person is undermined due to insanity when two conditions are satisfied. The first may be called the incapacity requirement. It states that a person, when committing the crime, suffers (...) cognitive or volitional incapacities or limited capacities that are relevant for exculpation. The second, we may call the mental disorder requirement, which states that these exculpatory incapacities are due to the presence of a mental disorder. In this paper we focus on the incapacity requirement. The review of the studies on executive functions deficits associated with high-functioning autism suggests that many autists should not be held categorically responsible for the crimes they may commit. Nonetheless, we argue that these impairments in executive functions generally do not provide an unqualified excuse. (shrink)

I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.

The state has always authoritatively used criminal law to give effect to its policy of condemning acts either antisocial or unacceptable to the conscience of the law and society. The existence of criminal law is well justified on grounds of ‘social welfare’ or “reinforcement of those values most basic to proper social functioning”. This initiates or sustains the process of criminalization. The relativity of ‘social welfare’ makes law ‘dynamic’ as well as ‘varying’, vis-à-vis its ambit and scope. (...) Current scholarship is critical of what is referred to as the trend of overcriminalization or rapid increase in criminalizing of acts, as leading to ‘uncertainty’ in criminal law. The rationale for such a critique is that there are activities that need not be labeled as offences if they do not possess the potential to cause damage that criminal law seeks to protect. In light of the overcriminalization critique, this paper examines the criminalization of certain offences labeled as public welfare offences. (shrink)

This work delves into the nature of the morality of the judges and prosecutors of the ICC, who are instrumental in perpetuating the flawed concept of international criminal vacation. This work does not imply distrust in the capacities of the prosecutors or judges of the Court. However, if they are not morally and legally accountable for safeguarding the survival and security of the rights of victims, then who is? This volume places a significant emphasis on an ethical and philosophical (...) understanding of the system of international criminal justice and how the system of vacation for major criminals has become a mechanism against the universal rights of men across the globe. It is in these circumstances that we become instruments of political power, devoid of morality and humanity, driven solely by the evil greed of governments that disregard the dignity of other nations and relegate their victims to a state of insignificance. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the (...) concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

While research on political violence often focuses on its outcome, there is little attention to the process of political violence. Filling the knowledge gap, the present research applies the theory of instrumentalism to understand political violence as a means to achieve certain political ends. The research is a qualitative case study on Lyari, which was a comparatively peaceful neighborhood in Karachi but transformed into a violent no-go area during 2000s. The paper describes the process of instrumentalization of political violence in (...) Lyari with the objective of outlining the relationship of three key actors – political parties, state authorities, and criminal gangs – using violence for their respective interests. The paper explains how the convergence of their interests influenced the intensity of political violence and converted it into an ethnic conflict. Hence, it expands the literature on political violence by outlining the complexities of the real world where multiple political actors simultaneously use violence to achieve varied objectives that sometimes compliment and sometimes clashes with each other, resulting in further extension of violence. (shrink)

The familiar irony of ‘real existing socialism’ is that it never was. Socialist ideals were used to legitimize regimes that fell far short of realizing those ideals – indeed, that violently repressed anyone who tried to realize them. This paper suggests that the derogatory concept of ‘the criminal’ may be allowing liberal ideals to operate in contemporary political philosophy and real politics in a worryingly similar manner. By depoliticizing deep dissent from the prevailing order of property, this concept can (...) obscure what I call the legitimation gap. This is the gulf between (a) liberal accounts of state legitimacy, and (b) the actual functioning of liberal states. Feminists have long pointed out that the exclusion of what is deemed ‘personal’ from political consideration is itself a political move. I propose that the construction of the criminal as a category opposed to the political works similarly to perpetuate unjust forms of social power. (shrink)

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and (...) more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare as the basis for criminalization. (shrink)

Two significant, apparently unrelated, trends have emerged in American society and medicine. First, American medicine is reexamining its approach to dying. The Institute of Medicine, the American Medical Association and private funding organizations have recognized that too many dying people suffer from pain and other distress that clinicians can prevent or relieve. Second, this past decade has marked a sharp increase in the number of physicians prosecuted for criminal negligence based on arguably negligent patient care. The case often cited (...) as a watershed is People u. Einaugfer, which involved a New York nursing home patient whose physician was convicted in 1993 of two criminal misdemeanors after he ordered an elderly dialysis patient to be tube fed through a peritoneal dialysis Catheter.How is the growing awareness of dying patients’ pain and the increasing willingness of prosecutors to charge physicians with crimes connected? Pain at the end of life is frequently treated with narcotics, prescription drugs that are closely regulated by state and federal law. That complex web of laws—and a growing fear of legal sanctions—has deterred physicians from prescribing controlled substances. As those legal sanctions move from disciplinary actions to criminal charges, physicians’ fears may expand. (shrink)

Kant gives what appear to be consequentialist and retributivist reasons for his claim that the state must punish criminal offenders. I argue that Kant’s justification is retributivist and not consequentialist. In particular, I argue that Kant’s justification is found in his argument that we must attribute to an offender’s reason the judgment that she must be punished. I argue that other retributivist interpretations as well as interpretations that prioritize consequentialist reasons have little textual support. I also reconstruct an (...) argument that Kant implies for his claim that ius talionis is the proper criterion for determining the quality and quantity of punishment. (shrink)

American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a (...) particular feature of the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE. (shrink)

In her recent book The Limits of Blame, Erin Kelly argues that we should rethink the nature of punishment because delivering blame is, contrary to the widely held view, not among the justifiable aims of a criminal justice system. In this paper, firstly, I discuss her case against criminal blame. Kelly argues that the emphasis on blame in the criminal justice system and in public discourse is one of the main causes of the stigma and exclusion faced (...) by those convicted for a crime. This claim might appear puzzling and, while she provides other convincing arguments against criminal blame, Kelly does not extensively defend this particular argument. To offer support for this view, I reflect on the often overlooked distinction between moral blame and criminal blame to show how the latter, unlike the former, is exclusionary and stigmatising. Secondly, I address the claim put forth by Kelly that blame should play no role in the criminal justice system at all. In light of her argument about the optional nature of moral blame, I explore the possibility that the state should leave open to victims the option to blame criminal wrongdoers in restorative justice conferences. I argue that in such contexts blame would not have the same exclusionary features of criminal blame in traditional settings and that it could serve some valuable aims articulated by communicative theories of punishment, such as the restoration of moral relationships. (shrink)

Over the last twenty years there has been an explosion of interest in ‘criminal justice’, generating a wealth of research incorporating law, philosophy, political theory, sociology and other disciplines. The fascination of criminal justice flows from the cultural prominence of criminalization as a form of social control. The news media in Australia, Britain or the United States provide plentiful evidence of the extent to which crime, fear of crime, government criminal justice policy and the activities of the (...) more visible enforcement agencies such as the police preoccupy many contemporary Western societies. At the international level, too, criminal justice is increasingly salient. Moreover, the status of criminal justice as a particularly coercive and costly governmental repertoire claims our attention. Yet the diversity of practices encompassed within the notion of ‘criminal justice’, and the variety of practical, philosophical and political questions which they raise, make criminal justice an elusive subject. All too often, the general ‘theories of criminal justice’ which purport to make sense of the concrete practices illuminated by empirical research turn out to be too abstract and/or too narrow in focus to fulfil that promise. The purpose of this chapter is to provide a framework which might enable us to make sense of criminal justice without imposing an unrealistically rigid or unduly circumscribed model on the complicated processes with which we are concerned. (shrink)

Written by leading philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.

The state's use of the threat, and imposition, of punishments to regulate conduct is thought (or at least said) by many to be legitimised by the idea that the criminal law's burdens only fall on those who are blameworthy for their conduct. However, the formal concept of 'blameworthiness' needs to be made substantive. This puts various ideas regarding the criminal law's person at the heart of debates about blame, guilt, and responsibility. How is the criminal law's (...) person constructed, by whom, and with what disciplinary norms? How is it threatened by new 'knowledge', and how do those threats play out amongst the various stakeholders who claim the criminal law's person as 'theirs'? To address these and cognate questions, this volume brings together an international group of academics to engage with the criminal law's person from a range of disciplinary perspectives. (shrink)

The fourth volume in the Criminalization series, this volume explores some of the most general principles and theories of criminalization. It includes not only philosophical work, but also historical, legal, and sociological investigations into criminalization, clarifying the state of the discipline today.

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment (...) provided by the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want (...) to ask is whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

This chapter first discusses four categories of international criminal law, namely international aspects of national criminal law, international criminal law stricto sensu, suppression conventions/transnational criminal law, and international standards for criminal justice. It then explains some crosscutting issues that are in the forefront of both historical and contemporary discussions in the area, organizing the material under the rubric of jurisdiction, paying particular attention to how this plays out in a number of suppression conventions. The appropriateness (...) of domestic court jurisdiction is a fundamental issue in relation to most of the subject matter of the first three of the categories of international criminal law and to significant instruments developed in the fourth. The chapter also introduces a recent international criminal treaty, namely 2010 Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, that is regarded as the state of the art. (shrink)

Criminal Law Conversations provides an authoritative overview of contemporary criminal law debates in the United States. This collection of high caliber scholarly papers was assembled using an innovative and interactive method of nominations and commentary by the nation's top legal scholars. Virtually every leading scholar in the field has participated, resulting in a volume of interest to those both in and outside of the community. Criminal Law Conversations showcases the most captivating of these essays, and provides insight (...) into the most fundamental and provocative questions of modern criminal law. (shrink)