Scott Soames argues that consideration of the practice of legal judgement gives us good reason to favor the partial-definition/context-sensitive theory of vagueness against epistemicism. Despite the fact that the value of power-delegation through vagueness is evidenced in practice, Soames says, epistemicism cannot account for it theoretically, while the partial-definition/context-sensitive theory is capable of it. In this paper, I examine the two possible arguments against epistemicism that can be extracted from Soames’s account: (i) an argument based on unknown obligations, and (ii) (...) an argument based on power-delegation through vagueness. The first argument tries to convince us that, as based on epistemicism, the law has already decided the borderline cases, so that judges have obligatory decisions even in such cases: therefore epistemicism is inconsistent with the discretion of judges in borderline cases. I show that even if we sympathize with Soames’s intuitions concerning the legal practice, the argument he offers is not conclusive since it is either invalid, unsound, or paradoxical. The second argument holds that only the gaps which the partial-definition/context-sensitive theory predicts give judges the possibility of lawmaking in borderline cases. However, by categorizing the vague laws as imperfect laws, the judges can claim the right of lawmaking without any need to refer to gaps in the law. By neutralizing these arguments, I argue that epistemicism is able to explain the phenomena just as well as the partial-definition/context-sensitive theory. (shrink)

Subject-sensitive invariantism (SSI), the view that whether a subject knows depends on the practical stakes, has been charged with ‘knowledge laundering’: together with widely held knowledge-transmission principles, SSI appears to allow improper knowledge acquisition. I argue that this objection fails because it depends on faulty versions of transmission principles that would raise problems for any view. When transmission principles are properly understood, they are shown to be compatible with SSI because they do not give rise to improper knowledge acquisition. The (...) upshot is a better understanding of the nature and structure of these transmission principles. (shrink)

ABSTRACT If a doctor kills a severely handicapped infant, he commits an act of murder; if he deliberately allows such an infant to die, he is said to engage in the proper practice of medicine. This is the view that emerged at the recent trial of Dr Leonard Arthur over the death of the infant John Pearson. However, the distinction between murder on the one hand and what are regarded as permissible lettings die on the other rests on the Moral (...) Difference Myth, according to which deliberate lettings die in the practice of medicine are not instances of the intentional causation of death. I argue that a doctor who refrains from preventing a handicapped infant's death, causes that infant's death and does so intentionally. He commits an act of murder. But, I suggest, not all instances of the intentional causation of death are morally wrong. To the extent that they are not, killing rather than letting die will often be the preferable option because more economical of suffering. Hence what is required is the abolition of the Moral Difference Myth and legislation to the effect that those doctors who justifiably cause a patient's death—whether by an action or by an omission—commit no offence. (shrink)

L’objet de la présente recherche est d’interroger les mérites de la théorie utilitariste relative aux faillites personnelles, qui est dominante dans la littérature juridique depuis que le courant Law and Economics a gagné en importance. Nous démontrons que l’argumentation utilitariste, qui est assignée aux doctrines de l’acquittement des dettes personnelles par les spécialistes de Law and Economics travaillant dans le domaine du droit des faillites, soulève des questions normatives de taille et créée des tensions quand il s’agit de décrire le (...) phénomène. Ces deux problèmes invitent les théoriciens à proposer des modèles alternatifs pour décrire les conditions dans lesquelles nos systèmes juridiques soulagent les dettes des individus qui ne sont pas en mesure de les honorer. Dans notre ouvrage à paraître, The Virtue of Bankruptcy, nous embrassons ce projet. Ici, nous proposons une étape préliminaire à ce projet plus ambitieux en démontrant que les théories utilitaristes sur lesquelles s’appuient les contributions les plus importantes de la littérature sur la question à ce jour sont perfectibles lorsqu’il s’agit de comprendre les raisons et les circonstances dans lesquelles il est possible d’offrir un nouveau départ à ceux qui n’ont pas respecté leurs obligations financières. (shrink)

Mass death resulting from war, starvation, and disease as well as the vicissitudes of extreme poverty and enforced sexual servitude are recognizably pandemic ills of the contemporary world. In light of their magnitude, are repentance, regret for the harms inflicted upon others or oneself, and forgiveness, proferring the erasure of the guilt of those who have inflicted these harms, rendered nugatory? Jacques Derrida claims that forgiveness is intrinsically rather than circumstantially or historically impossible. Forgiveness, trapped in a paradox, is possible (...) only if there is such a thing as the unforgivable. "Thus, forgiveness, if there is such a thing," can only exist as exempt from the law of the possible. Does this claim not open the way for hopelessness and despair? More troubling for Derrida is his concession that forgiveness may be necessary in the realm of the political and juridical. If so, is not the purity of the impossibility of forgiveness so crucial for him, contaminated? In pointing to some of the difficulties in Derrida's position, I shall appeal to Vladimir Jankelevitch's distinction between the unforgivable and the inexcusable. I shall also consider the significance of repentance in the theological ethics of Emmanuel Levinas and Max Scheler. Forgiveness, I conclude, is vacuous without expiation, a position that can be helpfully understood in the context of Judaism's analysis of purification and acquittal in the Day of Atonement liturgy. I argue that what disappears is Derrida's assurance of the impossibility of forgiveness, a disappearance that allows for hope. (shrink)

Following the acquittal of Dr Leonard Arthur in the case of the Down's syndrome infant the co-authors of the first paper in this symposium prepared a draft bill on the treatment of chronically disabled infants which has since been informally commended by the Director of Public Prosecutions. A second contributor, a law student, also argues for legislation as being the most effective way for society to have its standards clarified and observed. In a final paper Dr Havard, Secretary of (...) the British Medical Association, opposes legislation believing it would raise far more problems than it would resolve. The first article was originally published in the Law Society's Gazette. (shrink)

In this paper I explore some ideas inspired by Federico Picinali’s Justice In-Between: A Study of Intermediate Criminal Verdicts. Picinali makes a case for the introduction of intermediate options in criminal trials – verdicts with consequences that are harsher than an acquittal, but not so harsh as a conviction. From a certain perspective, the absence of intermediate options in criminal trials is puzzling – out of kilter with much of our everyday decision-making and, perhaps, with the recommendations of expected (...) utility theory. I will argue, however, that the lack of intermediate options is much less puzzling when put in the context of our ordinary practices of blame and non-legal punishment. (shrink)

In terms of medical science and legal responsibility, the sleep disorder category of parasomnias, chiefly REM sleep behavior disorder and somnambulism, pose an enigmatic dilemma. During an episode of parasomnia, individuals are neither awake nor aware, but their actions appear conscious. As these actions move beyond the innocuous, such as eating and blurting out embarrassing information, and enter the realm of rape and homicide, their degree of importance and relevance increases exponentially. Parasomnias that result in illegal activity, particularly violence, are (...) puzzling phenomena for medicine and the law. Via a review of the pertinent medical literature, a general overview of the current scientific knowledge of parasomnias will be provided. Though this knowledge is far from complete, it can provide some neurobiological information about the nature of parasomnia, including conclusions about a sleepwalker’s level of intention as well as factors that predispose one to such episodes. Although a parasomniac’s complete lack of consciousness warrants acquittal from criminal liability, it does not exclude responsibility for subjecting oneself to exacerbating factors that result in these violent parasomnias. Individuals should be held accountable if they could be expected to control these factors. In addition, they should undergo appropriate treatment and management in order to prevent future parasomnia behaviors. Establishing a legal defense for parasomnia will prove difficult due to the strong potential for malingering, so specific criteria will be outlined in order to distinguish between true and fraudulent claims of crimes committed during parasomniac states. (shrink)

Tragic allusions to contemporary events are not, as a rule, taken on trust, but the Eumenides of Aeschylus provides three notable exceptions. The view that the Athenian-Argive alliance of 462 B.C. is reflected in Eum. 287–91, 667–73, anc^ 762–74 has won wide acceptance, although no systematic theory of the relation between the drama and the historical context has yet been advanced. If demonstration in detail has been wanting, the view seems to be supported by three general considerations. In the first (...) place, the emphasis put on the dramatic declaration of friendship exceeds the requirements of the plot: the acquittal of Orestes rather than his gesture of gratitude to Athens is the natural climax of this part of the drama, 1–777, and yet the gesture has been considered important enough to be heralded twice before it is actually made in 762–74. Secondly, Orestes' declaration is not limited in duration but binding on his successors in perpetuity; it seems, therefore, to have been deliberately formulated in order to react upon historical fact. Thirdly, in instituting the Council of the Areopagus and dwelling upon the importance of its constitutional function , Aeschylus seems to have gone out of his way to pass judgement of some sort on the recent reforms of Ephialtes and Pericles; the theory that he has also appreciated their foreign policy on the tragic stage is thus relieved of some of the obvious practical objections and made inherently more plausible. (shrink)

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double (...) jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined. (shrink)

In this paper, I discuss rape myths and mythologies, their negative effects on rape and sexual assault complainants, and how they prejudicially construct women qua women. The backdrop for the analysis is the Belfast Rugby Rape Trial, which took place in 2018. Four men, two of whom were well-known rugby players, were acquitted of rape and sexual assault in a nine-week criminal trial that dominated local, national and international attention. The acquittal resulted in ‘I Believe Her’ rallies and protests (...) across Northern Ireland. Of concern were the deeply sexist and misogynistic text exchanges among the acquitted about the complainant and women more generally. One month after the trial, the Criminal Justice Board of Northern Ireland commissioned an independent review of the arrangements to deliver justice in cases of serious sexual offences. The Gillen Review proposed 16 key recommendations, among them measures to dispel rape myths and the role that Relationship and Sex Education in schools could play in combatting these myths. I will explore these issues using Miranda Fricker's construction of epistemic injustice. I argue that there is little appreciation of the profound impact that routine testimonial injustice—where the credibility of a speaker is deflated or undermined on account of her social identity—can have on the wellbeing of speakers and how it ramifies with other forms of injustice. To illustrate, I draw on neurological explanations to show why attributions of sexual consent are unjustly sustained in cases of rape and sexual assault. (shrink)

Tragic allusions to contemporary events are not, as a rule, taken on trust, but the Eumenides of Aeschylus provides three notable exceptions. The view that the Athenian-Argive alliance of 462 B.C. is reflected in Eum. 287–91, 667–73, anc^ 762–74 has won wide acceptance, although no systematic theory of the relation between the drama and the historical context has yet been advanced. If demonstration in detail has been wanting, the view seems to be supported by three general considerations. In the first (...) place, the emphasis put on the dramatic declaration of friendship exceeds the requirements of the plot: the acquittal of Orestes rather than his gesture of gratitude to Athens is the natural climax of this part of the drama, 1–777, and yet the gesture has been considered important enough to be heralded twice before it is actually made in 762–74. Secondly, Orestes' declaration is not limited in duration but binding on his successors in perpetuity; it seems, therefore, to have been deliberately formulated in order to react upon historical fact. Thirdly, in instituting the Council of the Areopagus and dwelling upon the importance of its constitutional function, Aeschylus seems to have gone out of his way to pass judgement of some sort on the recent reforms of Ephialtes and Pericles; the theory that he has also appreciated their foreign policy on the tragic stage is thus relieved of some of the obvious practical objections and made inherently more plausible. (shrink)

Punishment -- Culpable mind -- Culpable action -- Responsibility for harm -- Liability for public welfare offences -- Justification -- Excuse -- Detention after acquittal -- The unity of the penal law.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:From Sin to Amazing Grace: Discovering the Queer Christ by Patrick S. ChengJohn J. AndersonFrom Sin to Amazing Grace: Discovering the Queer Christ PATRICK S. CHENG New York: Seabury Books, 2012. 192 pp. $24.00The Christian doctrines of sin and grace are often avoided by LGBT (lesbian, gay, bisexual, and transgender) Christians today because of the ways that community has been harmed by the label “sinner.” Yet, Patrick Cheng (...) argues, these doctrines remain important to discuss. What is needed is not an avoidance of [End Page 241] these doctrines but rather a reframing of them. Writing from his perspective as a gay Asian American, Cheng offers new ways to understand sin and grace within the framework of a queer understanding of Christ.The book is organized into two parts. In part 1, Cheng argues that theologies of sin and grace are problematic because they have been defined in the West by a “crime-based” model. In this view, he argues, sin is a crime against God requiring punishment, and grace is acquittal and rehabilitation from that crime. Cheng outlines the development of this model from Augustine to John Calvin and argues that such a model is “inadequate and maybe even dangerous for LGBT people” (36). He rejects the crime-based model in favor of what he calls a “Christ-centered” model. In this view, sin is “immaturity” and grace is theosis or “becoming more like God” (54).In part 2, the fruitfulness of Cheng’s Christ-centered approach becomes apparent as he outlines how LGBT persons can interpret sin and grace in light of the Queer Christ. Cheng presents seven different models for understanding Christ offered by various queer theologians. Sin and grace are then understood in light of each particular model. For example, one Christ model that Cheng offers is the “Out Christ.” Here, the person of Jesus Christ is understood as God’s “coming out” to humanity; God reveals Godself most fully through Christ. Through this lens, sin is the “closet” and grace becomes the “courage” to come out. Thus, coming out of the closet is understood as part of theosis: by sharing one’s most authentic self with others, one becomes more like the God who desires authenticity and openness.One of the strengths of Cheng’s work is his analysis of the history of the doctrines of sin and grace and how they have had an impact on the LGBT community. Of particular note is his argument that the crime-based model is rooted in “a deep-seated fear of collective punishment” by God and that same-sex and gender variant acts have often been considered the cause of such punishment (40). Nonetheless, Cheng’s engagement of various theologians is often not deep enough. His chapters read at times like short summaries of one theologian after another. To be sure, this tendency demonstrates Cheng’s encyclopedic knowledge of the field, but it also does not permit enough critical depth to satisfy some scholars. This is perhaps due to the fact that he intends the book to be accessible to a lay audience—which it is. Each chapter ends with discussion questions that make it a good fit for undergraduate courses and church education classes. Furthermore, Cheng’s definitions of sin and grace tend to be presented as polar opposites. For example, in one Christ model, he defines sin as shame and grace as pride. Yet recent work in queer theory has criticized this dichotomy, revealing the limits of discourse about pride and the creative potential of shame. For many LGBT Christians, of course, it can be powerful to think of shame itself as a sin rather than feeling shame for being [End Page 242] called sinner, but Cheng’s discussion of this could be more nuanced. All in all, however, Cheng succeeds in providing a fresh vocabulary for discussing sin and grace, and his work will help a wide audience of Christians find new value in these classic doctrines.John J. AndersonMerrimack CollegeCopyright © 2014 Society of Christian Ethics... (shrink)

On March 29,2000, in U.S. v. Wood, the U.S. Court of Appeals for the Tenth Circuit held that a physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of treatment intended to prolong life that, when carried out, effectively hastened death. Finding the government's evidence flawed, based on several evidentiary errors and an erroneous denial of a motion for judgment of acquittal on murder charges, the court reversed the conviction of involuntary manslaughter (...) and ordered a new trial.Virgil Dykes, an 86-year-old man, was suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994. (shrink)

The story of Epaminondas' trial has come down to us in two divergent traditions, which differ as to the occasion, the ground, and the result of the action. One group of authors, of whom Plutarch may be taken as the chief representative, gives the following data: The trial took place after Epaminondas' first campaign in Peloponnesus— i.e. in spring 369 b.c. The charge preferred against Epaminondas was that he had outstayed his term of office as boeotarch. The trial resulted in (...) his acquittal. (shrink)

In 1979, A. D. Woozley proposed an interpretation of Apology 29c–d which was intended to alleviate the well-known tension between the Apology and Crito on the citizen's obligation to obey the law. According to his interpretation, the court's hypothetical offer – to release Socrates on the condition that he will be put to death if he does not give up philosophy – is not an order, but a warning as to what would happen should he accept their acquittal and (...) yet continue to philosophize. Obviously, if this is the spirit of the words he puts into the court's mouth, Socrates would not be guilty of disobedience should he refuse the offer, or even if he should accept it and then disregard the warning. To support this interpretation, Woozley suggested a novel construal of the words in which Socrates makes his refusal – πεσομαι δ μγγον τ θε ἢ μν. (shrink)

ABSTRACTPerhaps no American state has seen more legal activity on assisting suicide than Michigan, but despite legislation, a study Commission, several legal cases and a state Supreme Court ruling, the state seems much further from a humane resolution of the question than when the activities of Dr. Jack Kevorkian began in June of 1990. This note summarizes major legal events over a twelve‐month period , which included jury acquittal of Dr. Kevorkian, the inconclusive report of the Michigan Commission on (...) Death and Dying, the failure of the state legislature to enact legislation to replace the expired absolute but temporary prohibition, and the decision of the Michigan Supreme Court in Mich v. Kevorkian declaring assisting suicide a common law felony and ruling that in certain circumstances a person assisting suicide can be prosecuted for murder. The Commission's model decriminalization proposal and the bills subsequently introduced in the legislature , as well as the decision of the Supreme Court, are discussed. Certain puzzling features of the latter, especially with regard to the kind of causation that can turn helping another commit suicide into murder, are noted. (shrink)

Quand vous essayez de comprendre quelque chose qui au départ vous est étranger, vous ne pouvez l'aborder, il n'est pas humainement possible de faire autrement, qu'à l'aide des moyens dont vous disposez. Le péril, dans une telle situation, est toutefois de croire que ces moyens de fortune sont fiables et solides, quelle que soit la découverte à faire. Il suffit donc d'apprendre qu'ils ne le sont pas forcément. Ainsi devient-il possible d'avancer jusqu'au point où vous pourrez discerner qu'ils sont en (...) réalité l'obstacle même vous empêchant de reconnaître comme inconnu ce que vous avez pourtant sous les yeux, sans le voir. Le présent livre n'a d'autre ambition que de nous rendre capables de lire ce que Martin Heidegger cherche à dire au sujet de l'humaine condition, dont il reste à s'acquitter. (shrink)

This essay defends duress as a complete defence in specific cases of murder through discussing the case of Erdemovic, who was convicted by the International Tribunal for the Former Yugoslavia (ICTY) after he killed innocent people to save his own life. To begin with, I will present two objections to the Court’s judgment. Firstly, the Court cannot achieve its objective of deterrence without violating a fundamental legal principle. Secondly, the judgment itself permits that criminals sometimes remove the protecting shield of (...) the criminal law. I will then develop these objections into arguments favouring acquittal and generalise my results. (shrink)

RÉSUMÉ: Cet essai se concentre sur les tentatives de Hare de résoudre le problème du profiteur (free-rider) dans les termes de la théorie oú il distingue les niveaux intuitif et critique de la pensée morale. Hare fait valoir que la pensée critique correcte en utilitarisme des actes endosse les régles qui serviront a la pensée intuitive, règles enjoignant à un individu de s’acquitter de ses responabilités sociales, par exemplevoter ou recycler ses ordures. Je lais valoir que Hare propose ou suggère (...) implicitement divers critères de sélection des règles, critères que j’entreprends de désambiguïser. Je soutiens en outre qu’aucun de ces critères n’arrive à rèsoudre complètement le problème du profiteur. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:PARODY AND THE ARGUMENT FROM PROBABILITY IN THE APOLOGY by Thomas J. Lewis Over a century ago James Riddell pointed out that Socrates' defense speech in die Apology closely followed the standard form of Athenian forensic rhetoric. He called the Apology "artistic to the core," and he identified parts of "the subde rhetoric of this defense."1 Since then many scholars have explicated the rhetorical elements in Socrates' defense.2 Their (...) work has led in turn to recent attempts to integrate the rhetorical form into an overall understanding of the meaning and significance of the Apology? The puzzle to be solved is what to make of the fact that Socrates disclaims the ability and the intention to use rhetoric in a speech which is itself a rhetorical masterpiece. R. E. Allen raises the possibility thatby using the techniques ofrhetoric and at the same time denying that he is using them Socrates is dissembling or lying. However, Allen rejects this possibility and interprets Socrates' falsehood as only a surface or apparent falsehood. According to Allen it is ironic parody of a disreputable rhetoric which seeks to convince without concern for the truth.4 For Allen the object of the parody is base rhetoric in general, the type of rhetoric denounced by Socrates in the Gorgias as "rhetoric aiming at gratification and pleasure, and indifferent to truth and the good of the soul."5 Two subsequent articles, one by Kenneth Seeskin, the other by Douglas Feaver andJohn Hare, support the view that Socrates is parodying the debased form of rhetoric. However, they place somewhat different emphasis on the exact object of the parody. They argue that the object of Socrates' rhetorical parody is Gorgias' Pahmedes, rather than pandering rhetoric in general.6 After summarizing the many rhetorical similarities between Gorgias' Palamedes and Socrates' defense speech, Seeskin concludes that "Gorgias' Philosophy and Literature, © 1990, 14: 359-366 360Philosophy and Literature Palamedes is not a masterpiece of world literature; it is a collection of topoi—tried and true devices for winning acquittal... [whereas] despite his disclaimer, Socrates' speech is no amateur performance. On the contrary, he knew all the tricks of the trade and employed them with consummate skill" (p. 97). Seeskin uses Plato's Gorgias to explain how Socrates' rhetoric fits within an overall understanding of the Apology. He notes the two types ofrhetoric presented in the Gorgias: base rhetoric, a species of flattery which aims at gratification; and philosophic or true rhetoric which aims at improving the soul. Then Seeskin makes a crucial point. He insists it is not enough to distinguish between base rhetoric and philosophic rhetoric; there must be a way to identify a given instance of rhetoric as either base rhetoric or as philosophic rhetoric. Moreover, he cautions that distinguishing the one from the other is no easy task. "It is impossible to tell them apart on the basis of technique alone. Base rhetoric is no less polished for its baseness.... Nor can one tell them apart on the basis of their stated goals. Flattery succeeds only to the extent that it can pass itself off as something better" (p. 98). Thus, if Socrates and Palamedes employ the same rhetorical devices, Seeskin wonders how we can tell which type ofrhetoric is in the Apology. "Somewhere in the Apology of Socrates there ought to be a clue which allows one to distinguish his defense from the 'standard' defense composed by Gorgias" (p. 99). Seeskin finds the clue in the exordium, where Socrates denies that he is a skillful speaker: "Unless, of course, by a skillful speaker they mean one who speaks the truth. If that is what they mean, I would agree that I am an orator, though not after their pattern" (17b). Although Palamedes makes a comparable claim, Seeskin argues that Palamedes was concerned with appearance rather than truth, and that the key to appearance is the use of the argument from probability. According to Seeskin, Socrates does not rely on the argument from probability, whereas this argument permeates the Palamedes. "Again and again, the speaker tries to show that it would be implausible to suppose that anyone in his position did what he is accused of doing. How... (shrink)

This paper provides a re-assessment of the significance of turning king's evidence in late medieval England through a re-examination of the use of approvers' appeals as a method of prosecution. It puts forward the hypothesis that the process was not only popular with felons, but also actively encouraged by the Crown. Exploring attitudes towards confessions and their admissibility, it compares and contrasts contemporary Continental prosecution practices and considers the extent to which the English legal system was developing a form of (...) public prosecution through the encouragement of approvers, mainly at times of political stress or during law enforcement drives. Analysis of the verdicts returned by juries on persons arrested and tried on the basis of approvers' confessions indicates a high incidence of acquittal. This apparent failure in the system is explained in terms of the prejudices and practices of the juries, judicial scrutiny of the appeals, and putative government policy. (shrink)

This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted - very much against the weight of the evidence - of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's "The Coquette" and Susanna Rowson's "Charlotte Temple." In Norman's case, once newspapers, defense lawyers, and reformers such as (...) Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer, David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wives' seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Lydia Maria Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)

The current financial reporting environment, with its increasing use of accounting estimates, including fair value estimates, suggests that unethical accounting estimates may be a growing concern. This paper provides explanations and empirical evidence for why some types of accounting estimates in financial reporting may promote a form of ethical blindness. These types of ethical blindness can have an escalating effect that corrupts not only an individual or organization but also the accounting profession and the public interest it serves. Ethical blindness (...) in the standards of professional accountants may be a factor in the extent of misreporting, and may have taken on new urgency as a result of the proposals to change the conceptual framework for financial reporting using international standards. The social consequences for users of financial statements can be huge. The acquittal of former Nortel executives on fraud charges related to accounting manipulations is viewed by many as legitimizing accounting gamesmanship. This decision illustrates that the courts may not be the best place to deal with ethical reporting issues. The courts may be relied on for only the most egregious unethical conduct and, even then, the accounting profession is ill equipped to assist the legal system in prosecuting accounting fraud unless the standards have been clarified. We argue that the problem of unethical reporting should be addressed by the accounting profession itself, preferably as a key part of the conceptual framework that supports accounting and auditing standards, and the codes of ethical conduct that underpin the professionalism of accountants. (shrink)

Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law in favor (...) of the defense, potentially undermining the criminal defendant’s constitutional right to trial by jury. This Article confronts the legal status quo on verdict format and its underlying, untested assumptions. Drawing upon prior psychology findings and legal professionals’ anecdotal observations, it questions whether the general verdict poses its own under-acknowledged threats to the rights of criminal defendants and the decision-making agency of jurors. While the more guided special verdict format is presumed to threaten nullifying acquittals, the unguided general verdict format might be enabling convictions that violate constitutional norms of due process, impartial adjudication, and equal protection. Given the high-stakes values potentially implicated in the choice of verdict format in criminal cases, it is time to put the conventional wisdom in favor of general verdicts to an empirical test. This Article therefore proposes a methodological framework for investigating whether the legal status quo accurately reflects (1) current stakeholders’ preferences and predictions, and (2) experimentally testable legal and cognitive effects of general versus special verdicts in lay determinations of criminal liability. A data-informed understanding is needed to assess whether the general verdict is optimizing the integrity, fairness, and constitutionality of criminal jury decision making. (shrink)

This book addresses the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing on appeal. (...) -/- On the one hand, the book critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence. (shrink)

L’accroissement continu du suicide est un puissant révélateur de l’ethos d’une société, du malaise observé dans les structures de sa vie quotidienne et de la violence mortifère qui y est à l’œuvre. L’urgence de la situation est ressentie par la communauté comme un appel à la responsabilité collective et à son autocritique en s’interrogeant sur ses critères de la vie bonne. Pourquoi une société se croit-elle autorisée de prévenir le suicide de ses membres? Jusqu’où peut-elle aller dans cette voie? Quels (...) moyens sont justifiés pour s’acquitter de cette obligation? Après avoir examiné les raisons qui fondent la légitimité de la prévention du suicide et ses limites, nous proposerons des politiques ou des stratégies de santé publique pour une saine gestion du risque suicidaire. (shrink)

Before the recent presidential election, a bipartisan congressional effort was made to pass a criminal justice reform bill. The bill faltered in part because of a proposed default mens rea provision: statutes silent on mens rea, that were not explicitly identified as strict liability by the legislature, would be taken to require for guilt proof of knowledge with respect to each material element. This paper focusses on a prominent line of disagreement about the default mens rea provision. Proponents argued that (...) it would reduce the number of unjust verdicts in corporate cases. They noted that there have been convictions of corporations and corporate officers for public welfare offenses in instances in which there was good reason to believe that the defendants lacked mens rea. They touted the legislation, then, as a way of reducing the false positive rate. Opponents noted that the provision would also reduce the rate of true positives in corporate prosecutions—convictions of those possessing mens rea who could not be proven to—and opposed the legislation on those grounds. Both sides, then, accepted that the relevant question was, in part, numerical: under the provision, would the reductions in guilty verdicts of those lacking mens rea outnumber and outweigh the increases in acquittals of those possessing it? This paper critically examines this numerical approach for assessing and justifying the default mens rea provision. The paper argues that there is a small domain under which it is appropriate to reason in such numerical terms about a default mens rea provision, but that that domain is so small as to make such arguments inappropriate when it comes to sweeping legislation, such as that proposed. The paper further argues that in light of this conclusion the default mens rea provision must be examined non-numerically, through appeal to principled considerations about the necessary conditions for morally justified infliction of punishment. When such arguments are freed from numerical considerations of the kind that dominated the public discussion of the legislation, they decide the matter: the default mens rea provision deserves bipartisan support. (shrink)

In a recent Dutch euthanasia case, a woman underwent euthanasia on the basis of an advance directive, having first been sedated without her knowledge and then restrained by members of her family while the euthanasia was administered. This article considers some implications of the criminal court’s acquittal of the doctor who performed the euthanasia. Supporters of advance euthanasia directives have welcomed the judgement as providing a clarification of the law, especially with regard to the admissibility of contextual evidence in (...) interpreting advance euthanasia directives, but suggested that the law regarding advance euthanasia directives should be further relaxed to remove the requirement of current suffering and that an unfortunate consequence of the prosecution is that it is likely to deter doctors from performing euthanasia even in more straightforward cases. This article argues that the court’s endorsement of the use of contextual evidence is problematic, that the case for prioritising prior decisions over current interests has not been advanced by the discussion surrounding this case and that worries about the alleged deterrent effect are not well founded. (shrink)

Although corruption has become a hot topic in organizational research, few studies have examined how it is socially constructed. To partially bridge this gap, the present paper takes a critical discursive perspective on the representation of corruption in the media. The empirical focus is on the media coverage of a corruption scandal that revolved around two instances of formal corruption charges and successive acquittals. Based on the analysis, the paper exemplifies how the media makes sense of and gives sense to (...) controversial activities in response to changing and at times contradictory information. In particular, the paper highlights interplay between four dominant discourses—transgression, political, public scapegoating, and individualistic—that that were mobilized throughout the media coverage. These discourses were intimately linked with wider dynamics between problematizing and restorative media framings and thus provided crucial means of reconstructing and reformulating the legitimacy of the reported activities throughout the scandal. While the findings are context specific, this study suggests that similar interplay and dynamics are important aspects of media sensemaking around controversial activities related to corruption. (shrink)

In an earlier discussion, I argued that Kant's moral theory satisfies some of the basic criteria for being a genuine theory: it includes testable hypotheses, nomological higher-and lower-level laws, theoretical constructs, internal principles, and bridge principles. I tried to show that Kant's moral theory is an ideal, descriptive deductive-nomological theory that explains the behavior of a fully rational being and generates testable hypotheses about the moral behavior of actual agents whom we initially assume to conform to its theoretical constructs. I (...) argued that the moral "ought" is best understood as the "ought" of tentative prediction expressed in the range of uses of the German sollen; and that the degree to which such a theory is well-confirmed is a function of the degree to which we actually judge individual human agents, on a case-by-case basis, to be motivated by rationality, stupidity, or moral corruption in their actions. I assume that a similar case could be made for other major contenders, such as Utilitarianism or Aristotelianism. But there still remains unanswered the question of which of these theories is the best among the available alternatives. To answer this question, further criteria of selection must be invoked. Among these are structural elegance and explanatory simplicity, but even these do not exhaust the desiderata for an adequate moral theory. More pressing in the case of moral theory is the requirement that the theory enable us to understand all the available data of moral experience; that the theory be sufficiently inclusive that in the formulation of its descriptive laws and practical principles, it be capable of identifying as morally significant all the behavior to which moral praise, condemnation, or acquittal is a relevant and appropriate response. (shrink)

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards the law. As (...) well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt... (shrink)

in the euthyphro, socrates tells euthyphro that Meletus is taking him to court for impiety.1 Upon hearing Euthyphro’s claim to have knowledge of piety, Socrates asks Euthyphro to take him on as a pupil, so that he might acquire knowledge of piety himself. Although this may seem unsurprising, given Socrates’s high regard for knowledge in other dialogues, the reason that Socrates gives for wishing to acquire knowledge, in this case, is bizarre—for he says it is because knowledge of piety will (...) help him to secure his acquittal on charges of impiety.It is unclear, however, why Socrates believes that his learning what piety is should lead to the impiety charges against him being dropped, yet no one has ever made a.. (shrink)

The criminal defendant is presumed innocent and his guilt must be proved beyond reasonable doubt for conviction. On some issues, however, the defendant must prove his innocence on the balance of probabilities to avoid conviction. Commentators have despaired of reconciling reverse burdens with the presumption in a principled way. Andrew Stumer has made a fresh attempt; however, his solution is overly rigid and rule bound. The presumption is engaged in a dynamic enterprise—minimizing the expected cost of error, mistaken acquittals as (...) well as wrongful convictions. Stumer’s fixed criminal standard and stringent restrictions on reverse burdens work against this goal. A more flexible approach is required, reflecting the calculus of error management. Where the cost or probability of wrongful conviction is relatively low, and the cost or probability of mistaken acquittal relatively high, it may be necessary to lower the standard of proof, or even to reverse the burden of proof. To inhibit these strategies is to increase the expected cost of error at trial. (shrink)

I argue that it is morally wrong for a lawyer to pursue a legal outcome that he knows to be unjust, such as the acquittal of a guilty client or the triumph of the wrong side in a lawsuit.

Abstract : This article makes the case that teacher’s personal qualities should be considered to be of great importance to being a teacher and that pre- and in- service teacher education has a social responsibility mandate. Developing personal qualities in teacher education is an important way in which teacher education can address its social responsibility mandate and, conversely, this mandate can provide the perspective from which the value of teacher’s personal qualities for teaching can be judged. Finally, the article discusses (...) the role of reflective thinking and reflective practice in addressing the social responsibility mandate of teacher education and identifies characteristics of reflective practices that seem particularly suitable for developing a teacher’s personal qualities relevant for addressing the social responsibility mandate of teacher education. Résumé : Cet article fait état des qualités personnelles de l’enseignant qui doivent être considérées comme d’une grande importance pour être un enseignant et que l’éducation initiale des enseignants et la formation continue a un mandat de responsabilité sociale. Le développement de qualités personnelles dans la formation des enseignants est un moyen important par lequel la formation des enseignants peut s’acquitter de son mandat de responsabilité sociale et, inversement, ce mandat peut fournir la perspective selon laquelle la valeur des qualités personnelles de l’enseignant pour l’enseignement peut être jugé. Enfin, l’article examine le rôle de la réflexivité et de la pratique réflexive à travers ce mandat de responsabilité sociale de la formation des enseignants et identifie les caractéristiques des pratiques réflexives qui semblent particulièrement appropriées pour le développement des qualités personnelles de l’enseignant pertinents pour atteindre les objectifs de ce mandat de responsabilité sociale de la formation des enseignants. -/- . (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Socrates' Trial and Conviction of the Jurors in Plato's ApologyDougal BlythI am going to argue in this paper that, in the three speeches constituting his Apology of Socrates, Plato presents the judicial proceedings that led to Socrates' execution as having precisely the opposite significance to their superficial legal meaning. This re-evaluation will lead to some reflections on the politics of Socrates' defence, and, similarly, on Plato's own aims in (...) writing the Apology. I want to show not only that the trial as portrayed demonstrates an inevitable dereliction of duty by the democratic jury, but also, more interestingly, that throughout the proceedings Socrates understands the meaning of the trial precisely in terms of his anticipation of the jurors' judicial incapacity.In the prooimion to his defence speech, Socrates requests that the jurors ignore his manner of speaking and concentrate on whether his case is just, "since this is a judge's virtue (), while that of a rhêtôr is to speak the truth" (18a5-6, cf. 35c2-5). We can gloss the expression "a judge's aretê" in this context as his function, or responsibility.1 Socrates claims that he, himself, fulfills his own responsibility as a defendant to tell the truth (17b4-c4, 33c1-2, cf. 34b5, 35b9-c2) in a speech that asserts his exemplary piety in Apollo's service and his beneficial influence on the Athenian youth. But if, in claiming that he is innocent of the charge, Socrates does tell the truth, then those jurors who thereupon convict him of impiety and corruption, and subsequently sentence him to death, have failed in their duty to judge rightly.My claim is that Socrates sees the trial as a test of the jurors' abilities. It is characteristic of Socrates to test people regarding their concern for virtue and justice, a habit to which he devotes extended discussion during his defence, even dramatising it provocatively in a central passage (29d7-e5) that I aim shortly to analyse in detail. Moreover, Socrates specifically withholds from the jury the title of dikastai or judges; he does finally award the title in his address following the sentence, but only to those who have voted [End Page 1] to acquit him (40a2-3).2 The possibility thus emerges that Socrates has treated the legal proceedings all along as a moral (and intellectual) test, or trial, of the empanelled jurors themselves, to see whether they are capable of the legal function to which they have been allotted. In that case, Socrates is putting on trial, not just those individual citizens, but the very legal system of democratic Athens.Socratic irony and truthfulnessBefore considering Socrates' own explicit judgement during those final remarks on the jurors' moral offence and punishment, I should first address briefly the issue of Socrates' irony. In the past, some writers have asserted that this irony involves him in not telling the truth about himself during his defence, in which case the jury might well have been justified in convicting him. Actually, there does seem to be a consensus among the more extended treatments of the Apology that have emerged during the last decade, at least on the point that Plato presents Socrates as committed to making as sincere an attempt at a defence of his case as is consistent with his philosophical commitment to virtue, and so to telling the truth.3I shall not re-argue this point in detail, but shall take it to be secured by two basic considerations: consistency with the Crito would require Socrates to recognise a legal obligation to make a sincere attempt at defence while his obligation to Apollo to continue his mission in Athens if possible would motivate that attempt with the goal of acquittal.4 Instead, I want to show what role irony does have in Socrates' defence, given that his principled law-abidingness requires him to attempt to persuade the jury, in accordance with truth and justice, that he is innocent (cf. 19a6-7, 18a7-b1, 18e5).Where Socrates acknowledges the obligation to defend himself, he remarks on the difficulty he faces, a difficulty that has resulted from the slander to which he has long... (shrink)

En 1954, la Cour d’appel de Buenos Aires acquitte Elena Teotina Haedo de Gaitán et la sage-femme Catalina Fuccia du délit d’avortement en invoquant la figure juridique de la « tentative d’avortement impossible », la grossesse étant scientifiquement et médicalement impossible à vérifier. Cet article examine l’application de la législation anti-avortement dans l’Argentine du milieu du xxe siècle, une Argentine considérée par l’historiographie comme pronataliste. L’analyse des processus judiciaires à l’œuvre permet également d’examiner les formes de tutelle sur le corps (...) et la reproduction des femmes. (shrink)

Résumé Interpréter serait trouver dans l’œuvre l’épaisseur temporelle qui lui assure sa force et sa survie. Si traduction et commentaire sont l’acquittement d’une double dette, en ce qu’ils donnent à l’œuvre passée son avenir et au présent l’héritage d’un passé, ils ont à construire dans le texte littéraire les conditions même de sa transmission. C’est-à-dire, comme le pense Benjamin, à trouver dans quel chassé-croisé des temps l’œuvre conjugue une expérience tout à la fois historique et atemporelle.

In the surviving plays of Aeschylus and Sophocles the gods appear to men only rarely. In the Eumenides Apollo and Athena intervene to bring acquittal to Orestes. In Sophocles' Philoctetes Heracles appears ex machina to ensure that the hero returns to Troy, and we learn from a messenger how the gods have summoned the aged Oedipus to a hero's tomb. In Sophocles' Ajax Athena drives Ajax mad and taunts him cruelly. Prometheus Bound might seem to be an exception, since (...) all but one of its characters are gods. But nonetheless the intervention of the gods in the life of the one human character, Io, brings pain and trouble as well as promise of benefit. Io has been driven mad because she has refused to obey the dreams that tell her to go to the meadow where Zeus wants to have intercourse with her. The god does not make his request in person, and it is only in the course of her wanderings that Io learns how Zeus will bring a gentle end to her sufferings. Her informant is another god, Zeus' adversary Prometheus, who answers her questions, at times grudgingly , and in ways that are not immediately clear to her. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe that both (...) approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)

This paper explores the meaning of the word “felony” in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case (...) out of the realm of felony. It suggests that the very definition of felony and felonious behavior—and thus the essence of criminal responsibility—may be bound up with the idea of mens rea during this period. The paper aims to uncover broader societal understandings of the nature of guilt and innocence, and to highlight connections and disconnections between the formal criminal law of felony, with its heavy emphasis on capital punishment, and popular and ecclesiastical understandings of culpability. (shrink)

Mass death resulting from war, starvation, and disease as well as the vicissitudes of extreme poverty and enforced sexual servitude are recognizably pandemic ills of the contemporary world. In light of their magnitude, are repentance, regret for the harms inflicted upon others or oneself, and forgiveness, proferring the erasure of the guilt of those who have inflicted these harms, rendered nugatory? Jacques Derrida claims that forgiveness is intrinsically rather than circumstantially or historically impossible. Forgiveness, trapped in a paradox, is possible (...) only if there is such a thing as the unforgivable. "Thus, forgiveness, if there is such a thing," can only exist as exempt from the law of the possible. Does this claim not open the way for hopelessness and despair? More troubling for Derrida is his concession that forgiveness may be necessary in the realm of the political and juridical. If so, is not the purity of the impossibility of forgiveness so crucial for him, contaminated? In pointing to some of the difficulties in Derrida's position, I shall appeal to Vladimir Jankelevitch's distinction between the unforgivable and the inexcusable. I shall also consider the significance of repentance in the theological ethics of Emmanuel Levinas and Max Scheler. Forgiveness, I conclude, is vacuous without expiation, a position that can be helpfully understood in the context of Judaism's analysis of purification and acquittal in the Day of Atonement liturgy. I argue that what disappears is Derrida's assurance of the impossibility of forgiveness, a disappearance that allows for hope. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

On March 29,2000, in U.S. v. Wood, the U.S. Court of Appeals for the Tenth Circuit held that a physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of treatment intended to prolong life that, when carried out, effectively hastened death. Finding the government's evidence flawed, based on several evidentiary errors and an erroneous denial of a motion for judgment of acquittal on murder charges, the court reversed the conviction of involuntary manslaughter (...) and ordered a new trial.Virgil Dykes, an 86-year-old man, was suffering from severe abdominal pain when he arrived at the Veterans Administration hospital in Muskogee, Oklahoma, on February 5, 1994. (shrink)

In 1979, A. D. Woozley proposed an interpretation of Apology 29c–d which was intended to alleviate the well-known tension between the Apology and Crito on the citizen's obligation to obey the law. According to his interpretation, the court's hypothetical offer – to release Socrates on the condition that he will be put to death if he does not give up philosophy – is not an order, but a warning as to what would happen should he accept their acquittal and (...) yet continue to philosophize. Obviously, if this is the spirit of the words he puts into the court's mouth, Socrates would not be guilty of disobedience should he refuse the offer, or even if he should accept it and then disregard the warning. To support this interpretation, Woozley suggested a novel construal of the words in which Socrates makes his refusal – πεσομαι δ μγγον τ θε ἢ μν. (shrink)

Depuis un siècle, l'inscription connue sous le nom de tarif d'Abydos excite la curiosité à cause des indications précises qu'elle nous livre sur le montant des taxes perçues au passage de 1' Hellespont ; cependant comme seule est conservée la fin du texte on ignore leur nature et en particulier la catégorie des bateaux qui devaient les acquitter. La mise en œuvre des sources épigraphiques, numismatiques, papyrologiques et législatives révèle que ce règlement exempte les naviculaires, commandant les bateaux chargés de (...) denrées annonaires, de toutes les taxes sauf deux, celles qui rémunèrent les agents chargés de contrôler la qualité des produits et de vérifier qu'aucun capitaine ne cherche à introduire en fraude des armes ou des personnes interdites de séjour dans la capitale. Le montant des taxes, identique pour tous les bateaux chargés d'une même denrée, permet en outre de déterminer la valeur du follis par rapport au sou et, ce faisant, la date du tarif. (shrink)

In July 1787, Dr John Elliot, apothecary and scientist, assaulted Miss Mary Boydell in the streets of London. Elliotś defenders sought his acquittal on the grounds of insanity, and cited as proof a paper in which he alleged the existence of intelligent life on the surface of the sun. He has since become a stock character in the history of astronomy, routinely cited as a pathetic example of the ignorance of his age. His reputation is undeserved since his claims (...) were well within the canon of the era, and since his anti-social behaviour may well be explained by considering the hazards of his profession. Rather than serving as an exemplar of science gone awry, Elliot's dilemma can provide an opportunity for fresh analysis of late eighteenth-century thought on solar structure and on the processes that sustain it. (shrink)

In criminal cases at common law, juries are permitted to convict on wholly circumstantial evidence even in the face of a reasonable case for acquittal. This generates the highly counterintuitive—if not absurd—consequence that there being reason to think that the accused didn’t do it is not reason to doubt that he did. This is the no-reason-to-doubt problem. It has a technical solution provided that the evidence on which it is reasonable to think that the accused didn’t do it is (...) a different subset of the total evidence from that on which there is no reason to doubt that he did do it. It lies in the adversarial nature of criminal proceedings in the common law tradition that the subsets of the total evidence on which counsel base their opposing arguments are themselves different from and often incompatible with one another. While this solves the no-reason-to-doubt problem, it does so at the cost of triggering a second problem just as bad. It is the no-rival problem, according to which incompatible theories of the case based on incompatible subsets of the evidence cannot be rivals of one another. If neither party’s case contradicts the other’s then, by the burden of proof requirement, criminal convictions are impossible. Once having generated the dilemma, the object of the paper is to determine how it might be escaped. (shrink)