The doctrine of transferred intent (or transferred “malice” in England) generally provides that if A attempts to harm B but, because of bad aim, misses and accidentally causes the same harm to befall C, A’s harmful intent vis-à-vis B is transferred to C, thus rendering A guilty of intentionally harming C. Commentators acknowledge the doctrine to be a legal fiction, but they differ regarding whether the fiction produces just results, some believing it does, others believing that A is guilty at (...) most of attempting to harm B rather than intentionally harming C. Commentators who agree that the fiction produces just results nevertheless differ regarding whether the fiction should be retained or whether A’s intent to harm “a” person, in this case, B, is the only intent that signifies for crimes of intentional harm, regardless of whom A eventually harms. Doug Husak sought to achieve reflective equilibrium between intuition and theory regarding bad-aim cases by proposing in 1996 that A be punished for attempting to harm B (rather than for harming C) but sentenced as if he had harmed B. I once believed that Husak was correct. But I now have doubts, in part because Husak, along with others, cannot explain why the strength of people’s intuitions regarding A’s responsibility in bad-aim cases depends upon (1) C’s being a reasonably foreseeable victim, and (2) C’s being harmed by the same threat of force that A initially unleashed against B. I argue that one cannot achieve reflective equilibrium in bad-aim cases without inquiring into why resulting harm matters in criminal law, and that when one does, one discovers that just as people’s intuitions regarding whether intentional harms are proximate depend upon how resulting harms occur, so, too, people’s intuitions regarding whether an actor is guilty of intentional harm depend upon how resulting harm comes about. (shrink)

Courts and commentators have struggled for years to identify rules to explain and justify certain widely-shared intuitions about impossibility attempts, and they have proposed rules variously based upon (1) what mistakes actors make, (2) what intentions actors possess, and (3) what conduct actors perform. None of the proposals fully succeeds, however, and none is able to explain the widely-shared intuition, which underlies Sandy Kadish's inventive hypothetical regarding Mr. Law and Mr. Fact, that some attempts based upon mistakes of law are (...) just as blameworthy as attempts based upon mistakes of fact. I propose an alternative rule that, I believe, not only explains where and why people possess widely-shared intuitions regarding impossibility attempts (including regarding Mr. Law and Mr. Fact), but also explains where and why people have conflicting intuitions. I argue that widely-shared intuitions of blameworthiness and non-blameworthiness regarding impossibility attempts are a function, respectively, of whether informed citizens of the jurisdiction that enacted the statutory offense that the defendant allegedly attempted to commit widely believe or disbelieve that he would have been a threat to interests that the statute seeks to protect - a determination, in turn, that is a function of whether they widely believe or disbelieve that he would have committed the offense under counterfactual circumstances that they fear could have obtained. (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)

Criminal law commonly requires judges and juries to decide whether defendants acted reasonably. Nevertheless, issues of reasonableness fall into two distinct categories: (1) where reasonableness concerns events and states, including risks of which an actor is conscious, that can be justly assessed without regard to the actor’s individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actor’s capacities. This distinction is significant because, while the reasonable person by which (...) category-1 cases are assessed is a disembodied and impersonal ideal that consists of nothing but the uncompromising values of the jurisdiction, the reasonable person by which category-2 cases are measured must necessarily incorporate some of an actor’s individual traits or risk blaming the blameless. Courts and commentators have thus far approached the task of individualizing or subjectivizing reasonableness in category 2 by trying to determine in advance which individual traits are generally relevant and which are not. I propose an alternative approach that, in addition to applying to negligence and voluntary manslaughter cases alike, derives its content from the social practice of blaming. I propose that a reasonable person in category-2 cases consists of every physical, psychological, and emotional trait an actor possesses, with one exception—the exception being that he possesses proper respect for the values of the people of the state as reflected and incorporated in the statute at hand. (shrink)

Legal scholars have tended to focus upon whether blackmail is paradoxical rather than upon its substance. In actuality, federal and state blackmail laws vary considerably in their elements and defenses. After defining what I mean by blackmail, I discuss how jurisdictions frame prohibitions against blackmail in relation to prohibitions against theft, larceny, extortion, threats, coercion and intimidation; how extensively jurisdictions elect to prohibit blackmail; what, if anything, jurisdictions regard as defenses to blackmail; and how harshly or mildly jurisdictions penalize blackmail. (...) I conclude by discussing the paradox of blackmail, including recent scholarly efforts by philosophers and legal scholars to resolve it. (shrink)

Commentators have contested the role of resulting harm in criminal law since the time of Plato. Unfortunately, they have neglected what may be not only the best discussion of the issue, but also the first - namely, Plato's one-paragraph discussion in the "Laws." Plato's discussion succeeds in reconciling two, seemingly irreconcilable viewpoints that till now have been in stalemate. Thus, Plato reconciles the view, that an offender's desert is solely a function of his subjective willingness to act in disregard of (...) the legitimate interests of others, with the view that criminal sentences can appropriately be made to depend upon how indignant, angry, and upset society is at an offender based upon the results of his culpable conduct. In doing so, Plato casts light on retributive theories of punishment by suggesting that an adjudicator can be committed to retribution and yet rightly believe that it is inappropriate to give an offender the full punishment he deserves. He also lays a basis for the view that causation, rather being predicates for the just punishment of offenders toward whom the public is intuitively angry for harm, is the consequence of the public's being intuitively angry at offenders for harm. (shrink)

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...) non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well. (shrink)

Why has the global West (North America, Europe) handled the covid-19 pandemic and the corresponding economic crisis so much worse than the global East (East Asia)? The crises demonstrate the degree to which the West is shaped by its forms of competition and the East by its forms of cooperation. In the West, we have become habitualised to American neoliberalism over the last two generations. In the East, varieties of neo-Confucianism and neo-Buddhism have been transformed into national cultures. The way (...) humans understand their position in the world intellectually and react to crises according to corresponding habit makes an effective difference. The present comparison between global East and West makes use of Hannah Arendt’s conception of politics and the shared world as well as of Helmuth Plessner’s conception of mediated immediacy in forms of modern biopower. The pandemic is a catalyst within the decline of the West and the rise of the East. (shrink)

Zu den kulturgeschichtlich interessantesten und textgeschichtlich gefährlichsten gehören Veränderungen im System des Datenträgers, um einen ganz modernen Ausdruck zu verwenden. Die Geschichte der europäischen Literatur hat mehrere Perioden aufzuweisen, in denen sich grundlegende Änderungen dieser Art vollziehen: der Übergang von der Rolle zum Buch-Codex im 4. Jahrhundert, bei der sich der materielle Träger, aber nicht (unmittelbar) die Schriftform ändert, die Umschrift von der Majuskel in die Minuskel (bei unterschiedlichen Ausgangspunkten in Byzanz und im Westen im 9. und den folgenden (...) Jahrhunderten), wobei der Codex als Träger unverändert blieb, die Einführung des Buchdrucks und schließlich die elektronische Speicherung von Texten und ihre beliebige Weiterverarbeitung, deren Bedeutung und Folgen erst spätere Generationen beurteilen und einschätzen können. (shrink)

Militärtechnisch könnte der Westen (und sogar Deutschland alleine) einen Krieg gegen den Islamischen Staat (IS) gewinnen; aber es wäre ein weiterer Pyrrhussieg über radikale Kräfte unter islamischer Flagge. Wenn wir uns für die Folgen unseres Nichtstuns verantwortlich fühlen sollen, dann sind wir erst recht verantwortlich für die fatalen Neben-, Spät- und Langzeitfolgen unserer Interventionen im Nahen Osten : Die Region ist voller Waffen (die zum erheblichen Teil von uns stammen) und voller Fanatiker, die auch wegen unserer Anwesenheit immer neu (...) radikalen Zulauf finden. Nach all diesen entmutigenden Erfahrungen sollten wir uns eingestehen, dass wir uns überschätzt haben und gescheitert sind. Um der Konfrontation auf lange Sicht ein Ende zu bereiten, sollten wir aus der Region vollständig abziehen, keine Waffen liefern – und in der muslimischen Welt um Entschuldigung für unsere vormalige Hybris bitten. Der Frieden im Nahen Osten muss von den dort Wohnenden selber gefunden werden. (shrink)

Larry Alexander and Peter Westen each critically examine different topics from my recent collection of essays, The Philosophy of Criminal Law. Alexander focuses on my “Rapes Without Rapists,” “Mistake of Law and Culpability,” and “Already Punished Enough.” Westen offers a more extended commentary on my “Transferred Intent.” I briefly reply to each critic in turn and try to extend the debates in new directions.

The thesis that Peter Westen develops in this book concerns the often unexpected difficulties in using the concept of equality when engaged in political debate. Against his own instincts, almost, as he recounts in his perhaps too revealing conclusion, he argues that equality really must be used very carefully, for it does not always prove what it is intended to demonstrate in matters of legal and moral philosophy. "The key to understanding the meaning and rhetorical force of 'equality' (...) in law and morals, I believe, lies in identifying the kinds of variable terms that enter into moral and legal statements of equality". Westen's book is an examination of these statements. (shrink)

According to the Behavioral View of consent, consent must be expressed in behavior in order to release someone from a duty. By contrast, the Mental View of consent is that normatively efficacious consent is entirely mental. In previous work, I defended a version of the Behavioral View, according to which normatively efficacious ‘consent always requires public behavior, and this behavior must take the form of communication in the case of high-stakes consent’. In this essay, I respond to two arguments by (...) proponents of the Mental View. First, Larry Alexander, Heidi Hurd and Peter Westen have argued that my view has mistaken implications concerning the culpability of different actors. I counter that my version of the view does not have these implications, as it leaves us free to draw moral and legal distinctions between different offences involving non-consensual behavior. Second, Larry Alexander and Kimberly Ferzan have argued for an analogy between consent and abandonment: on the grounds that the normative power to abandon resides in one’s will, Alexander and Ferzan concludes consent does too. I counter that abandonment requires behavior, and call into question the assumption that the ethics of property have much to teach us about the ethics of sexual consent. (shrink)

Since its original publication in 1975, this groundbreaking work has awakened millions of concerned men and women to the shocking abuse of animals everywhere--inspiring a worldwide movement to eliminate much of the cruel and unnecessary laboratory animal experimentation of years past. In this newly revised and expanded edition, author Peter Singer exposes the chilling realities of today's "factory farms" and product-testing procedures--offering sound, humane solutions to what has become a profound environmental and social as well as moral issue. An (...) important and persuasive appeal to conscience, fairness, decency and justice, Animal Liberation is essential reading for the supporter and the skeptic alike.--From publisher description. (shrink)

Peter Goldie opens the path to a deeper understanding of our emotional lives through a lucid philosophical exploration of this surprisingly neglected topic. Drawing on philosophy, literature and science, Goldie considers the roles of culture and evolution in the development of our emotional capabilities. He examines the links between emotion, mood, and character, and places the emotions in the context of consciousness, thought, feeling, and imagination. He explains how it is that we are able to make sense of our (...) own and other people's emotions, and how we can explain the very human things which emotions lead us to do. He argues that it is only from the personal point of view that thoughts, reasons, feelings, and actions come into view. This fascinating book gives an accessible but penetrating exploration of an important but mysterious subject. Any reader interested in emotion and its role in understanding our lives will find much to think about here. (shrink)