The aim of this book is to deepen our understanding of financial crimes as phenomena. It uses concepts of existential philosophies that are relevant to dissecting the phenomenon of financial crimes. With the help of these concepts, the book makes clear what the impact of financial crimes is on the way a human being defines himself or the way he focuses on a given notion of humankind. The book unveils how the growth of financial crimes has contributed to the increase (...) of the anthropological gap, and how the phenomenon of financial crimes now distorts the way we understand humankind. Using the existential philosophies of Kierkegaard, Nietzsche, Jaspers, Buber, Heidegger, Marcel, Tillich, and Sartre, the book sheds light on how these philosophies can help to better perceive and describe financial crimes. The book provides readers with existential principles that will help them be more efficient when they have to design and implement prevention strategies against corporate crime. (shrink)

La propriété et sa négation sont, pour Hegel, à la source de la constitution dialectique d'un sujet. Les délits, les crimes, le mal inscrit au cœur de la construction de la subjectivité, sont ce qui forme un sujet substantiel, mais toujours en train de se défaire. Il n'est relevé que par la puissance de l’Etat. Il se peut que, contrairement à ce que Hegel avance dialectiquement, celle-ci demeure toujours extérieure à l'individu.

In print for the first time in over ten years, Act and Crime provides a unified account of the theory of action presupposed by both Anglo-American criminal law and the morality that underlies it. The book defends the view that human actions are always volitionally caused bodily movements and nothing else. The theory is used to illuminate three major problems in the drafting and the interpretation of criminal codes: 1) what the voluntary act requirement both does and should require; (...) 2) what complex descriptions of actions prohibited by criminal codes both do and should require ; and 3) when two actions are 'the same' for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book both contributes to the development of a coherent theory of action in philosophy, and it provides both legislators and judges a grounding in three of the most basic elements of criminal liability. (shrink)

Introductory anthology to the philosophy of hate crime, written in the EU project "When Law and Hate Collide".

This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions are the "same" (...) for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them. (shrink)

In this essay, I challenge the contemporary social practice of conceptualizing crime as solely an individual’s fault and one’s responsibility. The individuation of the person is highly impersonal, causes fragmentation, marginalisation of the individual, and the destruction of the traditional practice of considering an individual as an integral part of the society. In contrast to this perspective, I make a case for a communal correctional system that is based on a traditional African social therapeutic system. This is a system (...) that considers crime as causing ontological disorder or disharmony especially in communities that are communitarian in nature, and which considers all crimes as disrupting communal harmony. Furthermore, I argue that correcting wrongdoing is also an opportunity for communities to introspect themselves, i.e. reconsider existing practices and views for the community’s benefit and that of a faltering individual. My focus in this essay is on revealing African understanding of crime and correcting it as a plausible alternative to the existing western correcting system. Keywords: Community, individual, crime, reconciliation, restorative justice, social therapy, harmony. (shrink)

Crime is a serious social problem, but its causes are not exclusively social. There is growing consensus that explaining and preventing it requires interdisciplinary research efforts. Indeed, the landscape of contemporary criminology includes a variety of theoretical models that incorporate psychological, biological and sociological factors. These multi-disciplinary approaches, however, have yet to radically advance scientific understandings of crime and shed light on how to manage it. In this paper, using conceptual tools on offer in the philosophy of science (...) in combination with theoretical work represented in this special volume of Psychology, Crime and Law, I provide some perspective on why explanatory progress in criminology has remained elusive and evaluate some positive proposals for attaining it. -/- . (shrink)

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

Situational crime prevention (SCP) measures attempt to prevent crime by reducing the opportunities for crime to occur. One of the ways in which some SCP measures reduce such opportunities is by providing victims with advice about how to avoid being victimised, for instance through public awareness campaigns or safety apps. Some scholars claim that this approach to preventing crime often or always promotes victim-blaming and that it is therefore morally wrong to pursue such strategies. Others have (...) made sweeping rejections of this claim. However, in this paper, I suggest that neither view is correct. Specifically, I demonstrate that there are at least three distinct ways of interpreting what I term the victim-blaming argument against advice-giving SCP measures – i.e. as an argument based on a concern for direct victim-blaming, indirect victim-blaming, or self-blame – and that both SCP opponents and supporters have legitimate grounds for their position, depending on how the argument is spelled out. (shrink)

This book was the first booklength treatment of the philosophical foundations of international criminal law. The focus is on the moral, legal, and political questions that arise when individuals who commit collective crimes, such as crimes against humanity, are held accountable by international criminal tribunals. These tribunals challenge one of the most sacred prerogatives of states - sovereignty - and breaches to this sovereignty can be justified in limited circumstances, following what the author calls a minimalist account of the justification (...) of international prosecution. Written in a clear and accessible style, this book should appeal to anyone with an interest in international law, political philosophy, international relations, and human rights theory. (shrink)

Larry May argues that the best way to understand war crimes is as crimes against humanness rather than as violations of justice. He shows that in a deeply pluralistic world, we need to understand the rules of war as the collective responsibility of states that send their citizens into harm's way, as the embodiment of humanity, and as the chief way for soldiers to retain a sense of honour on the battlefield. Throughout, May demonstrates that the principle of humanness is (...) the cornerstone of international humanitarian law, and is itself the basis of the traditional principles of discrimination, necessity, and proportionality. He draws extensively on the older Just War tradition to assess recent cases from the International Tribunal for Yugoslavia as well as examples of atrocities from the archives of the International Committee of the Red Cross. (shrink)

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same strength and (...) coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society. (shrink)

When should we make use of the criminal law? Suppose that a responsible legislature seeks to enact a morally justifiable range of criminal prohibitions. What criteria should it apply when deciding whether to proscribe conduct? Crimes, Harms, and Wrongs is a philosophical analysis of the nature, significance, and ethical limits of criminalisation. The authors explore the scope and moral boundaries of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm. Their aim is to develop guiding principles (...) for these various grounds of state prohibition, including an analysis of the constraints and mediating factors that weigh for and against criminalisation. Both authors have written extensively in the field. In Crimes, Harms, and Wrongs they have reworked a number of well-known essays and added several important new essays to produce an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike"--Provided by publisher. (shrink)

Crimes of Reason brings together expanded and updated versions of some of Braude’s best previously published essays, along with new essays written specifically for this book.

This is a review essay of Lagasnerie, Judge and Punish and Fassin, The Will to Punish. It explores the way that these two books challenge conventional thinking about the relationship between crime and punishment.

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or (...) mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, “We reject proxy crimes.” This Essay asks whether we should reject proxy crimes by presenting and evaluating Alexander and Ferzan’s treatment of the subject. After describing several different types of crimes that may be characterized as proxy crimes and Alexander and Ferzan’s rejection of most of them and their arguments for doing so, this Essay argues that their rejection of proxy crimes is incomplete, which leaves their theory open to a range of possibilities regarding the proper place of proxy crimes in criminal law. This Essay concludes that getting a handle on the problem of proxy crimes and overcriminalization requires a theory of the state and an articulation of the proper relationship between the state and its citizens that can give guidance on when the state can demand obedience from citizens to support the state and when failures to comply with such demands render one criminally culpable. Without such a theory, proposals to address overcriminalization cannot travel very far. (shrink)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal (...) dialogue the relationship between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (shrink)

Since 1900, debates about the justification of punishment have also been debates about the cause of crime. In the early twentieth century, the rehabilitative ideal of punishment viewed mental illness and dysfunction in individuals as the cause of crime. Starting in the 1970s, retributivism identified the immorality of human agents as the source of crime, which dovetailed well with the “tough-on-crime” political milieu of the 1980s and 1990s that produced mass incarceration. After surveying these historical trends, (...) Wirts argues for a social critical view that crime is best understood as a product of an unjust society, not faulty human beings. This view should take the lessons learned by the critiques of rehabilitation, however, and resist the tendency to reduce human beings to recipients of social services. (shrink)

Crime, Justice and Human Rights is an introduction to the philosophy, law and politics of human rights, uniquely tailored to criminologists and criminal justice practitioners. Integrating human rights and criminological frameworks across a range of subject areas - from criminalization and state crime, to crime prevention and critical analyses of the operation of the police, courts and penal system - the authors highlight both the potential and the limitations of human rights in informing new directions in criminology. (...) Featuring case material from Europe, North America, Australia and beyond, this critical, multidisciplinary text supports the teaching of human rights across a wide range of criminological topics, and assists students, researchers and independent readers to incorporate human rights paradigms into their criminological analysis. (shrink)

What do we know about war crimes and justice? What are the discursive practices through which the dominant images of war crimes, atrocity and justice are understood? In this wide ranging text, Michael J. Shapiro contrasts the justice-related imagery of the war crimes trial with?literary justice?: representations in literature, film, and biographical testimony, raising questions about atrocities and justice that juridical proceedings exclude. By engaging with the ambiguities exposed by the artistic and experiential genres, reading them alongside policy and archival (...) documentation and critical theoretical discourses, Shapiro?s War Crimes, Atrocity, and Justice challenges traditional notions of?responsibility? in juridical settings. His comparative readings instead encourage a focus on the conditions of possibility for war crimes as they arise from the actions of states, non-state agencies and individuals involved in arms trading, peace keeping, sex trafficking, and law enforcement and adjudication. Theory springs to life as Shapiro draws on examples from legal discourse, literature, media, film, and television, to build a nuanced picture of politics and the problem of justice. It will be of great interest to students of film and media, literature, cultural studies, contemporary philosophy and political science. (shrink)

What do we know about war crimes and justice? What are the discursive practices through which the dominant images of war crimes, atrocity and justice are understood? In this wide ranging text, Michael J. Shapiro contrasts the justice-related imagery of the war crimes trial with literary justice: representations in literature, film, and biographical testimony, raising questions about atrocities and justice that juridical proceedings exclude. By engaging with the ambiguities exposed by the artistic and experiential genres, reading them alongside policy and (...) archival documentation and critical theoretical discourses, Shapiros War Crimes, Atrocity, and Justice challenges traditional notions of responsibility in juridical settings. His comparative readings instead encourage a focus on the conditions of possibility for war crimes as they arise from the actions of states, non-state agencies and individuals involved in arms trading, peace keeping, sex trafficking, and law enforcement and adjudication. Theory springs to life as Shapiro draws on examples from legal discourse, literature, media, film, and television, to build a nuanced picture of politics and the problem of justice. It will be of great interest to students of film and media, literature, cultural studies, contemporary philosophy and political science. (shrink)

The discourse of hate crime has come to Europe, supported not least by international human rights actors and security and policy organisations. In this article, I argue that there is a need for a philosophical response to challenging claims about the conceptualisation and classification of hate crime. First, according to several scholars, hate crime is extraordinarily difficult to conceptualise and there is a fatigue among practitioners caused by the lack of clarity and consensus in the field. I (...) agree that there is a need, not for additional definitions, but for a more comprehensive conceptual framework, that may help us think more clearly about given definitions of hate crime; about their basic structure, cross-cutting problems, and possible variations. Supplying such a conceptual perspective represents a timely task for applied philosophy. I engage with this by offering a four-tiered concept of hate crime. Second, the involvement of human rights actors in the consolidation of hate crime law and policy in Europe has supported the classification of hate crime as a human rights violation. Ultimately, what is at stake is not only our understanding of hate crime, but also our maintenance of a precise and pointed discourse on human rights violations. I argue that we should hesitate or even abstain from classifying hate crime as a human rights violation, and that doing so is compatible with taking both hate crimes and human rights seriously. (shrink)

Crimes against humanity are supposed to have a collective dimension with respect both to their victims and their perpetrators. According to the orthodox view, these crimes can be committed by individuals against individuals, but only in the context of a widespread or systematic attack against the group to which the victims belong. In this paper I offer a new conception of crimes against humanity and a new justification for their international prosecution. This conception has important implications as to which crimes (...) can be justifiably prosecuted and punished by the international community. I contend that the scope of the area of international criminal justice that deals with basic human rights violations should be wider than is currently acknowledged, in that it should include some individual violations of human rights, rather than only violations that have a collective dimension. (shrink)

This dissertation analyzes three legal doctrines that regulate unintentional aspects of criminal conduct. Chapter one defends the influence the law grants to an action’s unintended results in determining the extent of the agent’s criminal liability. First, I critique the argument that criminal law’s general mens rea requirement allows a result to affect the extent of a defendant’s criminal liability only if he possesses mens rea with respect to that result. The rules that define offenses and the rules that specify sentences (...) for individual criminal actions each guide conduct, but they do so differently. Effective offense definitions must be framed in terms of mental states, but effective sentencing rules need not be; therefore, mens rea must set the limits of liability, but the extent of liability need not depend on mens rea alone. Second, I argue that sentencing rules can most effectively guide offenders to reduce the risk that their offenses will unintentionally cause harm if those rules grade the seriousness of each offense based on its results, since the primary alternative, grading offenses based on their risk, requires methods of measuring and communicating risk that exceed the capacities of the criminal justice system. While chapter one addresses the extent of liability, chapters two and three address its scope: each presents an account of one of the two types of mens rea used to define unintentional crimes. Recklessness, the subject of chapter two, is often analyzed as requiring defendants to possess a belief (or similar mental state) directed towards the degree of risk an action creates. Defining offenses in terms of an agent’s beliefs about risk, however, guides individuals to evaluate actions in deliberation by estimating the degree of risk they create. And because individuals ordinarily cannot estimate risks accurately, such rules will not effectively guide them to reduce harm. Effective rules, I will argue, must identify prohibited actions in a different way—namely, through the features of those actions that make them unreasonably risky. The definition of recklessness does not itself identify those features directly; instead, by requiring individuals to comply with the standard of conduct of the law-abiding person, recklessness indirectly incorporates into law the social norms that regulate dangerous activities. To be reckless, then, defendants must recognize the features of their conduct in virtue of which it violates such a norm. Finally, chapter three analyzes negligence. Criminal negligence is paradoxical: even though culpability ordinarily requires advertence, negligent defendants are typically understood to be culpable for a risk they inadvertently create. Rather than rejecting culpability for negligence or expanding culpability beyond advertence, I dissolve the paradox by reconceptualizing negligence. Negligent defendants are culpable despite their failure to perceive one risk because they advert to a different risk—the risk that by failing to inquire before acting they will fail to uncover evidence of the risk that they do, in the end, actually fail to perceive. Negligence is epistemic recklessness, the culpable disregard of the risk of inadvertently performing a risky action. Though negligence, like recklessness, involves advertence to risk, it constitutes a distinct form of mens rea because it regulates a different aspect of conduct—the decision to inquire rather than the decision to act. And because omitting inquiry creates only a risk of a risk, negligence is systematically less risky than recklessness, and therefore less culpable. (shrink)

Taking as its starting point Miri Gur-Arye’s critical discussion of a legal duty to report crime, this paper sketches an idealising conception of a democratic republic whose citizens could be expected to recognise a civic responsibility to report crime, in order to assist the enterprise of a criminal law that is their common law. After explaining why they should recognise such a responsibility, what its scope should be, and how it should be exercised, and noting that that civic (...) responsibility must include a responsibility to report one’s own crimes; it discusses whether that civic responsibility could ground at least a limited legal duty to report certain types of crime. It then turns to the question of whether a civic responsibility to assist the criminal law’s enterprise of bringing wrongdoers to account could include a responsibility to arrest suspected or known offenders if the police cannot or will not do so—a responsibility to make a citizen’s arrest, and the legal power to discharge that responsibility: how far should citizens feel entitled, or duty-bound, thus to ‘take the law into their own hands’? (shrink)

In this paper I argue that when states commit, assist, or culpably fail to prevent crimes against humanity against their own people, they should, subsequently, have primacy in prosecuting those crimes. They have a presumptive right (and duty) to punish perpetrators, and so a claim against third parties not to do so. In contrast to those who emphasise the importance of national sovereignty, I set out a victim-centred justification for this claim. I argue that victims of crimes against humanity, and (...) members of groups that have been targeted for these crimes, have a special interest in having their status as members of their political community re-affirmed. Punishment by their state of war-related crimes against them has the expressive function of re-affirming their status as equal members of their national community, and the state’s commitment to protecting their rights. I set out some reasons to think that this is valuable for victims and members of targeted groups. These interests, I argue, are weighty enough to ground the primacy of states in prosecution. (shrink)

This symposium contribution offers a reconsideration of a range of “vice crime” legislation from late nineteenth and early twentieth century American law, criminalizing matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic and paternalistic ; and it was only later, in the late twentieth century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent (...) harms. This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales—similar to those that underlie modern, technocratic, “preventive justice” legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism. (shrink)

This is the first book to take a comprehensive look at white collar criminal offenses from the perspective of moral and legal theory. Focussing on the way in which key white collar crimes such as fraud, perjury, false statements, obstruction of justice, bribery, extortion, blackmail, insider trading, tax evasion, and regulatory and intellectual property offenses are shaped and informed by a range of familiar, but nevertheless powerful, moral norms.

By comparison with the prevention of terrorism, the prevention of acts of organized crime might be thought easier to conceptualize precisely and less controversial to legislate against and police. This impression is correct up to a point, because it is possible to arrive at some general characteristics of organized crime, and because legislation against it is not obviously bedeviled by the risk of violating civil or political rights, as in the case of terrorism. But there is a significant (...) residue of legal, moral and political difficulty: legislation against organized crime is hard to make effective; the harm of organized crime is not uniform, and so some preventive legislation seems too sweeping and potentially unjust. More fundamentally, the scale and rewards of organized crime are often dependent on mass public participation in markets for proscribed goods, which may point to a hidden public consensus in favour of some of what is criminalized. For all of these reasons, I argue that existing preventive policing and legislation against organized crime may be harder to justify than their counterparts in counter-terrorism, at least in the UK. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

The present study provides analysis of the institutionalization of historical revisionism in Ukraine and examines the impact of this revisionism on the formation of modern Ukrainian criminal policy. The characteristics of the Organization of Ukrainian Nationalists and its armed wing, the Ukrainian Insurgent Army, will be determined, and their role during World War II will be analyzed, with special emphasis placed on their involvement in crimes against humanity. The study focuses on the fact that the Organization of Ukrainian Nationalists and (...) the Ukrainian Insurgent Army have all the features of profascist organizations, and in this regard, the institutionalization of their heroization not only creates the prerequisites for modern glorification of Nazism, but also constitutes a legal basis for the decriminalization of glorification of Nazism, as well as for the criminalization of behavior disputing this glorification. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 27.1 (2003) 1-20 [Access article in PDF] Crime, Compassion, and The Reader John E. MacKinnon IN "WRITING AFTER AUSCHWITZ," Günter Grass describes how at the age of seventeen he stubbornly refused to believe the evidence arrayed before him and his classmates of Nazi atrocities, the photographs showing piles of eyeglasses, shoes, hair, and bones. "Germans never could have done, never did do a thing like (...) that," he recalls thinking. And "when the Never collapsed," he and other young Germans were assured that they were free of responsibility. "It took several more years," Grass reports, "before I began to realize: This will not go away; our shame cannot be repressed or come to terms with." Later, he confesses that those of his age "belonged to the Auschwitz generation—not as criminals, to be sure, but in the camp of the criminals." 1Although one would be hard-pressed to find a novel more dramatically different in style and narrative development than Grass's own dark, audacious fables, Bernhard Schlink's The Reader 2 nonetheless shares this fascination with the notion of collective guilt, in particular the burden of inheritance endured by Germany's "second generation." Set in a university town in the late 1950s, the novel tells the story of a high school student, Michael Berg, who falls in love with Hanna Schmitz, a woman twenty years his senior. Though capable of genuine concern and deep affection, Hanna is oddly secretive, often brusque and officious, occasionally given to cruelty and sarcasm, and prone to unpredictable fits of pique. She also has an endearing quirk: she likes Michael to read to her. Eventually, and without explanation, she vanishes from Michael's life. It is seven years before he sees her again, when, as a law student, he attends a trial of concentration-camp guards, one of whom is Hanna. She stands accused, along with four other [End Page 1] women, of serving at both Auschwitz and a satellite camp near Cracow, of being actively involved in the selection of prisoners for almost certain death, and of locking several hundred women in a church, where they burned to death during a bombing raid.In light of testimony given at trial, Hanna's puzzling conduct, and his own recollections of their time together, it finally dawns on Michael that Hanna cannot read, that she was and remains illiterate. But while in retrospect this may explain certain episodes of frustration, incomprehension, and overreaction on her part, does it have any bearing on her guilt? What would Michael himself have done if similarly situated, and similarly limited? Thus, the story of Michael and Hanna serves as an allegory of the relation between the two generations of Germans, those who were Nazis, or who at least assisted or accommodated them, and the "lucky late-born." It is against this background that Schlink is able most searchingly to investigate questions of complicity, recrimination, and atonement.As much courtroom drama as rite-of-passage tale, The Reader is also something of a philosophical investigation. According to Eva Hoffman, in fact, Schlink has managed to compose "a fictionalized essay... a kind of philosophical parable." For all the briskly evocative prose, she adds, The Reader "gradually acquires some of the severity of a legal or logical argument, in which propositions are set forth and then tested from various points of view." 3 In a recent article, Jeremiah P. Conway offers a sympathetic interpretation of the novel, attending in particular to the philosophical issues that it raises. Conway challenges Martha Nussbaum's claim that it is logically incoherent for us to feel compassion for one whom we hold responsible for a morally reprehensible act. 4 For in Hanna, he suggests, we have a compelling counterexample, a fit object of our compassion no less than our condemnation. And yet, Conway's challenge is grounded in an even more fundamental denial that The Reader is at all concerned to establish the circumstances of Hanna's life as mitigating her crime.In what follows, I will argue that this interpretation is untenable... (shrink)

Western societies characterize by promoting material well-being enrooted in legal-rational administration as a form of development. Although, the study of crime has been broadly studied in recent years, many scholars devoted attention in analysing the bridge between authority and penitentiaries. This paper obliges us to rethink the relationship between mythopoeia, punishment and crime. Social deviation is often represented as a taboo wherein offender is loathed. Each group in different ways legitimates their own ways of economical production. Our modern (...) capitalist world is provided with an impersonal logic based on imbalances of class and the exploitation of weaker workers. Inversely, the life in prison draws on solidarity considering violence and strength as a mechanism for social upward. From this point of view, everyone who abused of weakest in their crimes are subdued to the authority of all who are jailed due to crimes committed against strongest, the State or the Police. Not only the logic of civility is upheld, but also the prisoners trivialize the power of State in spite of rehearsed hardermethod of repression. Certainly, by understanding the nuances of this discourse in sites of imprisonment are a pathway to realize about the limitations of our own society and style of life. The otherness calls our difference questioning our proper way of constructing the reality. (shrink)

The U.S. Catholic Bishops (2000) have endorsed a model of criminal justice that is restorative rather than retributive. Some interpreters of Catholic tradition defend retribution as a necessary feature of responding to crime (e.g., John Finnis). I argue in this paper that this difference is substantive, not merely linguistic. The essential question is what elements of past Catholic thinking about criminal justice are normative for today. I argue that there are strong moral reasons,consistent with both Catholic tradition and larger (...) principles of social justice, to endorse the bishops’ statement on criminal justice reform, and with it a restorativeapproach to crime. (shrink)

Western societies characterize by promoting material well-being enrooted in legal-rational administration as a form of development. Although, the study of crime has been broadly studied in recent years, many scholars devoted attention in analysing the bridge between authority and penitentiaries. This paper obliges us to rethink the relationship between mythopoeia, punishment and crime. Social deviation is often represented as a taboo wherein offender is loathed. Each group in different ways legitimates their own ways of economical production. Our modern (...) capitalist world is provided with an impersonal logic based on imbalances of class and the exploitation of weaker workers. Inversely, the life in prison draws on solidarity considering violence and strength as a mechanism for social upward. From this point of view, everyone who abused of weakest in their crimes are subdued to the authority of all who are jailed due to crimes committed against strongest, the State or the Police. Not only the logic of civility is upheld, but also the prisoners trivialize the power of State in spite of rehearsed hardermethod of repression. Certainly, by understanding the nuances of this discourse in sites of imprisonment are a pathway to realize about the limitations of our own society and style of life. The otherness calls our difference questioning our proper way of constructing the reality. (shrink)

This volume collects essays by leading criminal law theorists to explore the principal themes in his work.

The idea that crimes can usefully be understood as ‘public wrongs’, and that this can generate a plausible principle of criminalisation, has found some support in recent years; it has also been subjected to some sharp criticism. This paper aims to sketch the most plausible version of that idea, and to show how, once properly explained, it is not vulnerable to those criticisms. After a brief defence of the negative principle, that we may not criminalise conduct that does not constitute (...) a public wrong, it explains the positive principle, that we have reason to criminalise conduct if it constitutes a public wrong, by drawing an analogy between criminal law and codes of professional ethics, and by appealing to the idea of civil order, as the normative structure of a polity—a structure that criminal law helps both to constitute and to sustain. Four objections are then met: that this account implies an unacceptable relativism; that it distorts the reasons that bear on criminalisation; that it cannot make room for those who do not identify themselves with the polity in which they live; and that it implies an unrealistically demanding conception of what is required for a polity to exist. (shrink)

This chapter contains sections titled: Sade, Nietzsche, and Brady at the Gates of Janus Brady's Life and Crimes Philosophy and the Moors Murders Brady's Library A Little Knowledge is a Dangerous Thing Nietzsche Sade The Sadean Hero and the Serial Killer Opening the Gates of Janus Brady Evaluates Other Serial Killers.

In this paper, I consider the question of whether crime victims can be said to have a moral right to see their victimizers punished that could explain why they often feel wronged or cheated when the state fails to punish offenders. In the first part, I explain what I mean by a “right to punishment” and what it is for such a right to “explain” the frustrated crime victim’s reaction. In the second part, I distinguish such a right (...) from a Lockean-style right to punish, which is also shown incapable of providing the needed explanation. In the third part I argue that it is difficult to identify any benefit such that the right to punishment could plausibly be understood as a right to that benefit. I discuss two main candidates here: the vaguely Hegelian idea that punishment is itself some sort of restitution for the wrong done to the victim; and the idea, due to Victor Tadros, that punishment is a form of compensation for wrongdoing by contributing indirectly to protecting victims from future harm. In the final section, I suggest instead that the frustrated crime victim’s reaction, when justified, is best explained, not by the violation of any right to punishment, but rather by the state’s failure to treat the victim as an equal. (shrink)

Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should. -/- I argue, first, that the (...) authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action. (shrink)

The U.S. Catholic Bishops (2000) have endorsed a model of criminal justice that is restorative rather than retributive. Some interpreters of Catholic tradition defend retribution as a necessary feature of responding to crime (e.g., John Finnis). I argue in this paper that this difference is substantive, not merely linguistic. The essential question is what elements of past Catholic thinking about criminal justice are normative for today. I argue that there are strong moral reasons,consistent with both Catholic tradition and larger (...) principles of social justice, to endorse the bishops’ statement on criminal justice reform, and with it a restorativeapproach to crime. (shrink)

In this paper, I will approach the problem of normalization within the context of crime and punishment in Nietzsche and Foucault. In modern theory and law, a linear, causal relationship has been established between crime and punishment with no regard to the socio-cultural context in which crimes and punishments take place. It was not until the nineteenth century that the problems of this relationship were exposed most notably by Dostoyevsky in fiction and later by Nietzsche in his theoretical (...) writings (the essays) and in his introspective reflections (the aphorisms). Although, according to Foucault, the reformists of penal institutions around the turn to the nineteenth century expanded the domain of crime and punishment to other areas and social contexts, they too were not radical enough tounderstand the problem of crime and punishment in-depth and were not, therefore, capable of exposing them as a syndrome that is deeply rooted in the Occidental world-interpretation, its values and institutions. What I would like to show in this paper is how the syndrome of crime and punishment in the West is intricately tied to, what Nietzsche calls, the morality of good and evil (the slave morality, its absolute truth, and its normalizing trend and power) and how Foucault transplants the Nietzschean critical project to its institutional context. Despite agreements and continuities between the two thinkers, no doubt their differences toowill come to surface in this study. (shrink)

This essay enquires into the implications for criminal law of Derrida’s analysis in the Death Penalty seminars. The seminars include a reading of Kant’s Metaphysics of Morals, specifically Kant’s reflections on the sovereign right to punish, which is read in conjunction with the reflections of Freud and Reik on the relation between the unconscious and crime, as well as Nietzsche’s reflections on morality, punishment and cruelty. What comes to the fore in Derrida’s analysis is a system of economic exchange (...) operating on an unconscious level, of which criminal law forms an intrinsic part. Derrida’s analysis of the ‘origin’ of crime in the seminars poses serious questions to the assumption of freedom underlying modern criminal law. The link, which he posits between punishment and political theology, likewise challenges the existing theories and forms of punishment. What the seminars call for, in the name of the Kantian Enlightenment, is a radical break with economic circularity as it operates in respect of crime and punishment. (shrink)

This updated and revised second edition of Donald A. Wells's popular 'War Crimes and Laws of War', originally published in 1984, traces the rules of war since ancient times. The major sources of the rules or 'laws' of war are explored: the congresses of the Hague, Geneva, and the United Nations. But an abyss exists between what military manuals allow and what the congresses prohibit; this book attempts to resolve this dilemma. An important text for military college courses and international (...) relations, as well as social philosophy courses. Co-published with the North American Society for Social Philosophy. Here is what reviewers had to say about the first edition. (shrink)