Is there a duty to prosecute grave international crimes? Many have thought so, even if they recognize the obligation to be defeasible. However, the theoretical literature frequently leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated, leaving it unclear which considerations should drive and shape processes of criminal accountability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to prosecute (...) can be substantiated on the basis of a single class of reasons, though also that standard justifications of international criminal law (as currently conceived) are not up to the task. The account exploits the expressive dimension of punishment, but locates the central good of criminal accountability in its capacity to appropriately enable an agential stance on the part of subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The approach also displays the cynicism of an anti‐impunity ethos in the absence of a robust commitment to securing basic human rights in transitional circumstances. (shrink)

International criminal law is dedicated to the battle against impunity. However, the concept of impunity lacks clarity. Providing that clarity also reveals challenges for the current state and future prospects of the project of ICL, which this article frames in cosmopolitan terms. The ‘impunity norm’ of ICL is generally presented in a deontic form. It holds that impunity for perpetrators of international crimes is a wrong so profound that states and international bodies have a pro tanto (...) duty to prosecute and punish perpetrators, a duty that cannot be overridden by considerations of cost, including the costs of infringing on the traditionally understood legal sovereignty of states. This deontic reading of the impunity norm is difficult to justify, a fact linked to the waning fortunes of ICL over the past several years. If ICL is to reverse this trend, the impunity norm’s strongly deontic reading should be replaced by a version derived from deliberative principles. (shrink)

What is the relationship between impunity and economic and social rights? A substantiated expectation of impunity encourages the commission of acts that violate human rights. Using a logistic-multinomial regression model, we find that impunity affects per capita GDP, years of schooling, and life expectancy. An unexpected finding was that different civil and political rights systems, as diverse as those of Norway and Singapore, have similar impacts on both impunity and economic and social rights. Nonetheless, we need (...) to focus on holistic models that strive for protection of all human rights. (shrink)

An emerging consensus regards domestic amnesties for international crimes as generally inconsistent with international law. This legal consensus rests on a norm against impunity: the chief role of international criminal law, and of the fledgling International Criminal Court , is to end impunity for violators of the worst of criminal acts. But the anti-impunity norm, and the anti-amnesty consensus that has arisen from it, now face serious difficulties. The ICC's role in the ongoing conflict in Northern Uganda (...) illustrates the deadlock that has now emerged between countries wishing to retain the power to use domestic politics and criminal law as tools for negotiation with current or outgoing perpetrators, on the one side, and the ICC's determination to apply a consistent international anti-impunity norm, on the other. The paper argues that the anti-impunity norm itself is based on a narrowly retributivist conception of criminal justice. A broader norm for democratic accountability, by contrast, would continue to prefer prosecutions over amnesties in international law, less for the opportunity for deserved retribution for perpetrators than for the public enactment of the deliberative procedures associated with the rule of law.Keywords: amnesty; impunity; international law; international criminal court. (shrink)

Republicans hold that freedom is non-domination rather than non-interference. This entails that any instance of interference that does not involve domination is not freedom-lessening. The case for thinking of freedom as non-domination proceeds mostly by way of a handful of highly compelling cases in which it seems intuitive to say of some person that he or she is unfree despite being in fact free from interference. In this essay, I call attention to a kind of case which directs attention to (...) what seems to me to be a highly counterintuitive element of the republican conception of freedom. (shrink)

Resumo Giorgio Agamben tece a genealogia da “vida nua”, no percurso que vai do homo sacer ao Muselmann, do primeiro paradigma da política ocidental à fabricação do morto-vivo, em Auschwitz, como vida insacrificável e impunemente matável. Judith Butler segue argumento semelhante, ao desenvolver o conceito de “vida precária”, com o qual problematiza a separação entre vulnerabilidade universal e formas de produção da precariedade, a distinção entre vidas cujas perdas importam e as indignas de pranto e luto. A finalidade deste artigo (...) consiste em aproximar as concepções dos dois autores, sob a hipótese de que, em ambos, trata-se da fabricação de vidas matáveis, sobre as quais pesa a proibição do luto.Giorgio Agamben weaves the genealogy of “naked Life”, on the path that goes from Homo sacer to Muselmann, from the first paradigm of Western politics to the manufacture of the undead in Auschwitz, as an unexpendable and unpunishable killing life. Judith Butler follows similar argument in developing the concept of “precarious life”, with which problematizes the separation between universal vulnerability and forms of production of precariousness, the distinction between lives whose losses matter and the unworthy of weeping and Mourning. The purpose of this article is to approximate the conceptions of the two authors, under the assumption that in both it is the manufacture of killing lives, on which it weighs the prohibition of grief. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 32.3-4 (2002) 33-59 [Access article in PDF] Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC) Mahmood Mamdani The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available (...) to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other.This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC.Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report.First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and [End Page 33] individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed.Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to... (shrink)

International criminal law is dedicated to the battle against impunity. However, the concept of impunity lacks clarity. Providing that clarity also reveals challenges for the current state and future prospects of the project of ICL, which this article frames in cosmopolitan terms. The ‘impunity norm’ of ICL is generally presented in a deontic form. It holds that impunity for perpetrators of international crimes is a wrong so profound that states and international bodies have a pro tanto (...) duty to prosecute and punish perpetrators, a duty that cannot be overridden by considerations of cost, including the costs of infringing on the traditionally understood legal sovereignty of states. This deontic reading of the impunity norm is difficult to justify, a fact linked to the waning fortunes of ICL over the past several years. If ICL is to reverse this trend, the impunity norm’s strongly deontic reading should be replaced by a version derived from deliberative principles. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 32.3-4 (2002) 33-59 [Access article in PDF] Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC) Mahmood Mamdani The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available (...) to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other.This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC.Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report.First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and [End Page 33] individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed.Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to... (shrink)

With its express intention ‘to put an end to impunity’, the International Criminal Court (ICC) faces a substantial challenge in the shape of conditional amnesties granted in future national truth commissions (TCs)—a challenge that invokes fundamental considerations of criminal justice ethics. In this article, I give an account of the challenge, and I consider a possible solution to it presented by Declan Roche. According to this solution the ICC-prosecutor should respect national amnesties and prosecute and punish only those perpetrators (...) who have refused to cooperate with the TC. I argue, however, that this compromise is untenable. As a general rule, if we justify the ICC on grounds of deterrence we should not accept conditional amnesties granted in national TCs. (shrink)

Through the lens of Guatemala’s Jorge Carpio Nicolle case I analyze the mechanisms that preserve impunity in Latin American nations struggling to emerge from violent conflict and embrace, the rule of law. I reveal how the infective influence of parallel powers, the ineffectiveness of the judicial process, and obstructive legal doctrine destroy domestic efforts to prosecute those responsible for human rights violations. The Carpio case exposes the role of international courts in providing justice when domestic courts fail to do (...) so, and it demonstrates the importance of human rights groups in pursuing this justice. (shrink)

I argue that the idea of a freely embraced eternal destiny in hell is deeply incoherent and implies, quite apart from its incoherence, that we are free both to sin with impunity and to defeat God's justice forever.

What can well-meaning people do about terror and genocide? The more we fight against systems of violence, the further we seem to sink into them. This book explores the lives and letters of ordinary and intellectual Germans who faced the ethical challenges of the Third Reich. Trained in history, literary criticism, philosophy, and theology, its four authors look at the role of myths, lies, non-conformity, irony, and modeling in cultivating a self. They explain how we might use these ordinary strategies (...) of selfhood to bear the burden of historical responsibility and be happy doing so.". (shrink)

Here we will go beyond the variety of violence to show its unity, common points and continuities. For although there are multiple forms of violence, they are interrelated: they define a continuum from trivial to extreme violence. Violence against oneself, things, living things such as plants and animals, other nations, the other, one’s fellow human beings, therefore the violence of society against its members, which returns to self-violence. Another continuum is its spiral development, with violence generating violence and pushing it (...) to grow. Violence can also be learned, we progress ever further in violence: in gangs, in armies, in society... Everyone is capable of violence, sometimes to a good advantage as in self-defence. Here it resides in necessity, that of survival, but in general it is impunity that allows and encourages it. In closed, totalitarian, universes: family, work, hospital, army, state... The proximity and distance between the perpetrator and the victim defines yet another continuity. We will discuss the various elements that contribute to its development. And paradoxically, to see that violence also serves to avoid violence. In this way, evacuating it, refusing it, is in fact feeding it, which makes today’s violence, which is an evolution of previous violence and which prepares and defines tomorrow’s violence. (shrink)

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

This paper focuses on a neglected portion of Plato’s Gorgias from 506c to 513d during Socrates’s discussion with Callicles. I claim that Callicles adopts the view that virtue lies in self-preservation in this part of the dialogue. Such a position allows him to assert the value of rhetoric in civic life by appealing not to the goodness of acting unjustly with impunity, but to the badness of suffering unjustly without remedy. On this view, the benefits of the life of (...) rhetoric depend on the idea that virtue consists in the power to protect oneself from the predations of others. I argue that by challenging this understanding of virtue as self-preservation, Socrates both deprives Callicles of any remaining justification for the rhetorical life in the Gorgias and, at the same time, makes room for his own defense of the life of philosophy. (shrink)

We all know what water is, and we often take it for granted. But the spectre of a worldwide water crisis suggests that there might be something fundamentally wrong with the way we think about water. Jamie Linton dives into the history of water as an abstract concept, stripped of its environmental, social, and cultural contexts. Reduced to a scientific abstraction – to mere H20 – this concept has given modern society licence to dam, divert, and manipulate water with apparent (...) impunity. Part of the solution to the water crisis involves reinvesting water with social content, thus altering the way we see water. An original take on a deceptively complex issue, What Is Water? offers a fresh approach to a fundamental problem. (shrink)

Since anonymous agents can spread misinformation with impunity, many people advocate for greater accountability for internet speech. This paper provides a veritistic argument that accountability mechanisms can cause significant epistemic problems for internet encyclopedias and social media communities. I show that accountability mechanisms can undermine both the dissemination of true beliefs and the detection of error. Drawing on social psychology and behavioral economics, I suggest alternative mechanisms for increasing the trustworthiness of internet communication.

Here, I defend the view that there is no sensible way to pin a truth-maker objection on presentism. First, I suggest that if we adopt truth-maker maximalism then the presentist can requisition appropriate ontological resources with impunity. Second, if we deny maximalism, then the presentist can sensibly restrict the truth-maker principle in order to avoid the demand for truth-makers for talk about the non-present.

This paper gives a novel reading of the argument addressed by the Laws of Athens to Socrates in Plato's Crito. Many philosophers have suggested that the argument of the Laws is merely a weak 'rhetorical sop' to Crito. However, I offer an interpretation of that argument that brings out its plausibility, particularly in the context of the post-Oligarchic demos of early fourth-century Athens. For on Crito's plan, Socrates would have undermined a critical form of civic trust in Athens, not by (...) merely disobeying the sentence imposed on him by the jury, but by openly displaying the legal impunity of the rich. -/- We can call this 'legal trust.' By that coinage, I mean citizens' faith in their fellow citizens' willingness and ability to collectively defend the law---to enforce it against the powerful, and refrain from acting to undermine that capacity. When the members of a democratic political community recognize one another's commitment to their legal system, they are able to defend the laws that hold their democracy together; in such a state, the laws are both conceptually constitutive of democratic authority and practically necessary for democracy. -/- Taken in the context of the strategic structure of the Athenian legal system, in the appeal to the filial loyalty Socrates owed the Laws we can see just such an account of the interweaving of law, trust, and citizenship in the preservation of a democracy. The Laws demand that Socrates be trustworthy, and thereby refrain from undermining his fellow citizens' trust in them, where that trust is necessary for the citizens' collective defense of the democratic legal system; they make this demand on Socrates in virtue of the Laws' role in Socrates's identity as citizen. (shrink)

Turkey, in direct lineage of the Ottoman Empire, experimented a particularly violent nation-building out of the imperial ashes. Non-Muslims corresponding to one fifth of its population have been annihilated for the creation of a homogeneous nation State. These crimes have never been accounted for, giving way to a culture of impunity, self-righteousness, contempt for the rule of law and justice which, over years, pushed the polity towards an illiberal if not totalitarian essence and praxis, domestically against its own constituency (...) and externally against neighbours through an extensive neo-imperial drive. Paradoxically, such an outcome seems to constitute a belated retribution for the unaccounted crimes. (shrink)

Since the 1970s, sexual assault laws have evolved to include prohibitions of sexual acts with cognitively impaired individuals. The argument justifying this prohibition is typically as follows: A sex act that is forced (without the legally valid consent of) someone is sexual assault. Cognitively impaired individuals, because they lack certain intellectual abilities, cannot give legally valid consent. Therefore, cognitively impaired individuals cannot consent to sex. Therefore, sex acts with cognitively impaired individuals is sexual assault. The prohibition of sex with such (...) individuals is regarded by many as a significant advance. It certainly seems to be an improvement upon the days in which individuals could engage in sex with cognitively impaired adults with impunity regardless of the physical, emotional and psychological consequences such sex acts caused for those individuals. Yet, this legislation raises serious puzzles. For example, in the U.S., cognitively impaired individuals are routinely convicted for sexual assault with non-cognitively impaired minors. How should we think about the conviction of a cognitively impaired individual who has sex with an underage, non-cognitively impaired individual? Does this imply that cognitively impaired persons are capable of understanding the criminality of failing to obtain legal consent while being, nonetheless, incapable of giving such consent? Should the law address only those cases in which either both or neither of the individuals involved are cognitively impaired? If so, why? -/- In this paper, I claim that shifting the analysis to one based on harms (away from legal standards of consent) better captures our intuitions about sex acts involving cognitively impaired individuals. (Indeed, a review of case law reveals a focus within these cases on the harms experienced by the impaired individuals involved.) I close the paper by identifying the difficulties that plague any legislation concerning individuals with mental impairments. (shrink)

After a brief interlude of legality ending in 1947, France and Italy faced violence fuelled by Communist organisations; the most important took place from the autumn of 1947 to the autumn of 1948 and greatly impressed governments and public opinion, sustaining fear of a Communist uprising. Facing this challenge to public order were resolute Ministers of the Interior Mario Scelba and Jules Moch. Their policy gained them the reputation of reso­lute anti-Communists going beyond the limits of democratic legality. This paper (...) questions this simple picture. In fact, for centre-right and centre-left govern­ments ruling these two countries, emergency powers were linked to the state of (civil) war and both ministries’ policies relied mainly on the application of the existing penal code and the mobilisation of existing forces. Moves to strengthen repressive laws depended on a long and uncertain parliamentary process and, without wide political consensus and solid parliamentary majorities, they often proved to be too little or too late. Judiciary repression was sometimes inefficient, leaving the Ministries infuriated by impunity. With the fear of world war peaking in 1950, there were legal efforts to thwart possible Communist support for a Soviet invasion; but those did not appear any more fruitful than prior attempts, and faded when internal matters seemed more urgent than the declining “Red Threat” in the 1950s. This study also highlights the fact that the repression by the Italian state, relying on former Fascist laws and sometimes infringing on civil liberties, was more violent than in France. Casualties caused by law enforcement persisted even after the decrease of Communist activism, underlying the histor­ically higher level of social and political confrontation in Italy. (shrink)

El largometraje La llorona (Jayro Bustamante, 2019) persigue contribuir a la restitución de una deuda histórica con el pueblo indígena guatemalteco; una deuda no satisfecha plenamente con los acuerdos de paz de 1996. El pasado espectral viene encarnado en Alma, la sirvienta maya kaqchikel que entra a trabajar en la casa del general Monteverde, responsable del genocidio de las comunidades indígenas cuando era presidente del país centroamericano. Al invertir la idea del haunting, o tormento, son el torturador y su familia (...) lxs que se ven acosados por sus acciones pasadas, que hasta ahora habían quedado impunes, no solo a nivel jurídico, sino también a nivel moral. La figura metafórica de “La Llorona”, que llora desconsolada más allá de la muerte porque sus hijos han sido asesinados frente a ella, desencadena el terror que vivirá la familia protagonista, obligada a enfrentarse al pasado en el contexto del juicio popular contra Monteverde. La lujosa mansión del expresidente, una casa tomada, rodeada de manifestantes clamando por sus desaparecidxs, se volverá un espacio asfixiante capaz de atentar contra sus habitantes como respuesta a las demandas de justicia. Este artículo se interroga sobre tres aspectos fundamentales de la película. En primer lugar, cómo se elabora audiovisualmente el contra-archivo del juicio de Ríos Montt en 2013, de quien Monteverde es trasunto en la ficción. En segundo lugar, de qué manera se movilizan las politics of haunting negociando un discurso que transciende el género de terror y entronca con el de denuncia social. Y finalmente, cuáles son los procedimientos que utiliza el filme para presentar la resistencia indígena y la decolonialidad como opciones para construir el presente democrático en Guatemala. (shrink)

Enduring social inequalities in settler colonial societies are not an accident. They are produced and maintained by the self-repairing structural features and dynastic character of systemic racism and its intersecting oppressions. Using methods from diverse anticolonial liberation movements and systems theory, Structural Violence theorizes the existence of adaptive and self-replicating historical formations that underwrite cultures of violence in settler colonial societies. Corresponding epistemic forces tied to profit and wealth accumulation for beneficiary groups often go untracked. The account offered here argues (...) that these epistemic forces play a central role in producing and maintaining massive health inequalities and the maldistribution of disease burdens―including those associated with sexual violence―for marginalized populations. It upends the widespread view that structural racism can be dismantled without addressing gendered violence. It also advocates for a theory of change rooted in reparative action and models of structural competency that respond to the built-in design of structural violence and the ecosystems of impunity that allow it to thrive. (shrink)

Rights to life for unborn humans and to abortion with impunity are incompatible. This observation by the German legal philosopher Norbert Hoerster contains a fundamental criticism of the state regulation on abortion in Germany. The regulation regards abortion as unlawful, but declines to prosecute if the abortion is conducted within the first three months of pregnancy and the pregnant woman received counseling at least three days prior to terminating the pregnancy. In contrast to the German legislature, Hoerster is in (...) favor of setting the beginning of a right to life at birth. With this suggestion and the consequent demand for a general legalization of abortion, Hoerster himself has become the target of harsh criticism. The following article analyzes Hoerster's position and that of his opponents against the background of the current abortion debate in Germany. The consequences for dealing with the handicaps of Hoerster's suggested regulations will also be addressed. (shrink)

When we understand the ontological, political and legal underpinnings associated with the concept of freedom, liberty and rights, we understand the relationship between rights and laws. Rights can be understood as liberties or as laws. Liberties can be understood as de facto rights or as de jure rights. It is de jure rights that are recognized as laws that provide the basis for the rule of law. It is the rule of law that provides the basis for equal rights and (...) equal justice in an ideal republic. Rights, laws and the rule of law are distinct. Rights are self-evident truths. Laws are imperatives backed by sanctions (John Austin). The rule of law is a principle that purports that the recognition de facto and de jure rights provide the basis for political, social and economic justice. People live by the rights recognized by law. As such, the rule of law advocates two fundamental underpinnings in a republic: (1) the recognition of rights as the basis for equal rights and equal justice, and (2) the recognition of law as the basis for governance. (H.L.A. Hart). However, since the recognition of law is the recognition of rights, the recognition of rights precedes the governance by law principle. What is fundamental to the rule of law is that it recognizes rights, legitimizes political rule and administers equal/blind justice (Meyers, 1213). As such, no branch of government can weaponize laws to terminate recognized individual rights. The maxim of the republic should be – while anyone can be the ruler, everyone lives as free as the ruler. Majority rule and protection of self-evident individual rights is fundamental to an ideal republic. Keywords: law, equal rights, equal justice, impunity, rule of law. (shrink)

With their prospect for causing both novel and known forms of damage, harm and injury, the issue of responsibility has been a recurring theme in the debate concerning autonomous vehicles. Yet, the discussion of responsibility has obscured the finer details both between the underlying concepts of responsibility, and their application to the interaction between human beings and artificial decision-making entities. By developing meaningful distinctions and examining their ramifications, this article contributes to this debate by refining the underlying concepts that together (...) inform the idea of responsibility. Two different approaches are offered to the question of responsibility and autonomous vehicles: targeting and risk distribution. The article then introduces a thought experiment which situates autonomous vehicles within the context of crash optimisation impulses and coordinated or networked decision-making. It argues that guiding ethical frameworks overlook compound or aggregated effects which may arise, and which can lead to subtle forms of structural discrimination. Insofar as such effects remain unrecognised by the legal systems relied upon to remedy them, the potential for societal inequalities is increased and entrenched, situations of injustice and impunity may be unwittingly maintained. This second set of concerns may represent a hitherto overlooked type of responsibility gap arising from inadequate accountability processes capable of challenging systemic risk displacement. (shrink)

We have been oversold on the base rate fallacy in probabilistic judgment from an empirical, normative, and methodological standpoint. At the empirical level, a thorough examination of the base rate literature (including the famous lawyer–engineer problem) does not support the conventional wisdom that people routinely ignore base rates. Quite the contrary, the literature shows that base rates are almost always used and that their degree of use depends on task structure and representation. Specifically, base rates play a relatively larger role (...) in tasks where base rates are implicitly learned or can be represented in frequentist terms. Base rates are also used more when they are reliable and relatively more diagnostic than available individuating information. At the normative level, the base rate fallacy should be rejected because few tasks map unambiguously into the narrow framework that is held up as the standard of good decision making. Mechanical applications of Bayes's theorem to identify performance errors are inappropriate when (1) key assumptions of the model are either unchecked or grossly violated, and (2) no attempt is made to identify the decision maker's goals, values, and task assumptions. Methodologically, the current approach is criticized for its failure to consider how the ambiguous, unreliable, and unstable base rates of the real world are and should be used. Where decision makers' assumptions and goals vary, and where performance criteria are complex, the traditional Bayesian standard is insufficient. Even where predictive accuracy is the goal in commonly defined problems, there may be situations (e.g., informationally redundant environments) in which base rates can be ignored with impunity. A more ecologically valid research program is called for. This program should emphasize the development of prescriptive theory in rich, realistic decision environments. (shrink)

This paper analyses the republican notion of non-domination from the viewpoint of individual dignity. It determines the aspect of individual dignity that republicans are concerned with and scrutinises how it is safeguarded by non-domination. I argue that the notion of non-domination as it is formulated by Pettit contains a number of ambiguities that need to be addressed. I discuss these ambiguities and argue for specific solutions that place great importance on a person’s moral beliefs and his status as a moral (...) being amongst others. Furthermore, I argue that the impunity interpretation is to be favoured over the immunity interpretation of non-domination. I show that whilst these solutions accord well with many important republican tenets, they have other implications that contradict known republican positions. In particular, I show there is both room and a need for retributivism within republicanism. (shrink)

Imagine someone who deliberately provokes someone else into attacking him so that he can harm that person in defending himself against her attack and then claim “self-defense” when brought to court to defend himself for what he has done to her. Should he be allowed to use this defense, even though it’s clear that he has deliberately manipulated his attacker into attacking him precisely in order to be able to harm her with impunity (assuming he were allowed to use (...) the defense and thus escape legal penalties)? This question is the focal point in the paper that follows. I argue first that the case described above is indeed an instance of an “actio libera in causa,” albeit arguably one at the margins of this controversial class of cases. Then, using a view about the justification of self-defense that I have defended elsewhere, I show why I believe that, while the manipulator should not be deprived of the legal right to defend his self-defensive actions in such cases by claiming they were a legitimate matter of self-defense, there is good reason to enact laws that will allow him to be prosecuted, independently of his “self-defense” defense, for manipulating his attacker as he did, thus allowing him to harm her in self-defense and then defend his actions as purely a matter of “self-defense.”. (shrink)

On 27 March 2014, Loreal Tsingine, a 27-year-old Navajo woman was shot and killed by Austin Shipley, a white male police officer, also 27 years old, who said he was trying to apprehend her for a suspected shoplifting. Shipley was never charged, and the Department of Justice declined to investigate the Winslow police on the matter. This article explores Shipley’s killing of Loreal Tsingine and the police investigation of the shooting as quotidian events in settler colonial states. Police shootings of (...) Indigenous people and the legal response to police use of force (along with everyday settler violence) are a part of the racial terror that is a central part of settler colonialism. Both the shooting and the official narratives of it as a justifiable use of force reveal the psychic and material underpinnings of a settler state, a state that continually imagines and consolidates itself as a community of whites imperiled by Indians among others. White settler violence directed at those imagined as threats lives just beneath the surface of everyday settler life, and importantly, flows through institutions such as policing, embedding itself in everyday professional routines. The extractive relations that are the basis of settler colonialism require and produce white subjects for whom Indigenous lands and bodies are the resource for white identity; policing is one site where white men and women (as well as those aspiring to whiteness), can enact racial hierarchy on behalf of the colonial state with impunity. (shrink)

Following the idea first expressed by Heinrich Swoboda, there is a general perception that the meaning of ἀτιμία in Athens eventually evolved from the original ‘outlawry’, when an ἄτιμος was liable to being deprived of his property and slayed with impunity if he returned to the land from which he had been banished, into a certain limitation on civic status, which has often been rendered as a ‘disfranchisement’. Specific outcomes of this later form of ἀτιμία varied depending on the (...) dating and circumstances of individual cases, thereby giving rise to theories of a so-called full – or ‘total’ – and partial ἀτιμία. Still, whether it was viewed as ‘full’ or ‘partial’, this ἀτιμία did not inflict the death penalty. The precise dating of the transformation of ἀτιμία has also been debated, with opinions ranging from pre-Solonian times (L'Homme-Wéry) to the late sixth (Swoboda, Hansen, Manville) or the late fifth century (Scafuro). While the exact dating is unknown, this transformation was definitely over in the fifth century, when inscriptions and literary texts mentioned punishment by ἀτιμία alongside the death penalty and the confiscation of property. Thus, according to Raphael Sealey, ἀτιμία evolved ‘from a more severe to a milder sense’, and Alick R.W. Harrison pointed to the evidence that, by the fourth century, any willing Athenian could seize an ἄτιμος who happened to be in Athenian territory and surrender him to the θεσμοθέται, instead of killing him. (shrink)

This article was developed as part of the forthcoming special issue on "Reparations" for the Journal of Social Philosophy and was accepted (with minor revisions) by the guest editors Christina Nick and Susan Stark in November 2021. The special issue article is available online open access for early view. -/- Abstract: The United Nations Commission on Human Rights acknowledges the Right to Know as part of state obligations to combat impunity and thereby protect and promote human rights in the (...) aftermath of “serious crimes under international law”. In light of such an institutionally acknowledged epistemic right of victims, this paper explores the normative foundations of the idea of epistemic reparation in the aftermath of genocide. I argue that such epistemic reparation requires not only fulfilment of the informational needs of victims, survivors and descendants, including access to knowledge about the violations. By taking into account epistemic injuries, which are part and parcel of genocide, it ought to also re-establish victims’ epistemic standing. This is because genocide is enabled, justified and even prescribed through a genocidal epistemology involving the propagation of falsehoods and misinformation about social reality as well as abuses of epistemic authority and epistemic authoritarianism. Hence, epistemic reparation ought to correct the dysfunctional epistemic practices that underlie and sustain a genocidal epistemology. It thereby provides victims, survivors and descendants with epistemic recognition that has been systematically withdrawn from them, making epistemic reparation a crucial element of restorative justice. (shrink)

Much ink has been spilled on the pros and cons of U.S. president Barack Obama's decision not to strike the regime of Syrian president Bashar al-Assad after that regime launched a deadly chemical weapons attack in 2013. Often missing from those debates, however, are the perspectives of Syrians themselves. While not all Syrians oppose Assad, and not all opponents endorsed intervention, many Syrian oppositionists resolutely called for Obama to uphold his “red line” militarily. As part of the roundtable “The Ethics (...) of Limited Strikes,” this essay analyzes diverse expressions of such opinion and finds that they highlight three dimensions of the ethical case for limited strikes against Assad. First, they remind us that the ethical context of the red line question was many Syrians’ sense of abandonment by the international community. Second, they emphasize the ethical stakes of the limited strikes; namely an opportunity to hold the Syrian regime accountable, weaken it from within, and thus change the equation of the war. Third, they make sense of the ethical consequences of the nonintervention outcome, and especially its effect in deepening civilians’ despair, accelerating extremism, and convincing Assad and his allies that they could kill with impunity. These views controvert both legalistic arguments precluding military intervention and assumptions that U.S. intervention is always imperialist and warmongering. In this case, consideration of the case for military intervention from the viewpoint of those on whose behalf the intervention would have taken place challenges us to think deeply about circumstances in which limited strikes might be not only ethically justified but also imperative. (shrink)

This paper analyses the republican notion of non-domination from the viewpoint of individual dignity. It determines the aspect of individual dignity that republicans are concerned with and scrutinises how it is safeguarded by non-domination. I argue that the notion of non-domination as it is formulated by Pettit contains a number of ambiguities that need to be addressed. I discuss these ambiguities and argue for specific solutions that place great importance on a person’s moral beliefs and his status as a moral (...) being amongst others. Furthermore, I argue that the impunity interpretation is to be favoured over the immunity interpretation of non-domination. I show that whilst these solutions accord well with many important republican tenets, they have other implications that contradict known republican positions. In particular, I show there is both room and a need for retributivism within republicanism. (shrink)

Research on sexual violence is fraught with ethical and methodological challenges due to its sensitive nature. This paper describes the ethical and methodological challenges encountered in planning and conducting two exploratory studies on sexual violence that included in-depth interviews of eight female adolescent rape survivors in Ibadan and four married women in Lagos Nigeria who were raped, forced to perform sexual acts and sexually deprived. The first challenge encountered was an Institutional Review Board requirement to obtain parental permission from adolescents, (...) when such a requirement may place the adolescent at risk if a parent was a perpetrator of sexual violence. Using arguments emphasizing the Council for International Organization for Medical Sciences guidelines helped convince the IRB to provide a waiver of parental consent. Second, the privacy required to conduct in-depth interviews for rape survivors was difficult to achieve because five of the rape survivors were apprentices who work in public settings which are typically used to conduct business in the informal sector. To overcome this challenge, interviews were conducted in safe locations, investigator's offices and homes of survivors. The culture of silence associated with sexual violence posed a challenge because it encourages perpetration of violence with impunity causing rape survivors to suffer in silence. None of the affected adolescents had sought judicial redress for rape despite availability of stringent punishment for this behaviour. Referral information was provided on where survivors could seek care. Interviews with the women could not be recorded on audio-tapes because of concerns that their partners might identify their voices from the tapes and punish them for this. Although research on sexual violence poses ethical and methodological challenges, it is not only desirable but also feasible to conduct such research in ways that ensure safety of participants. (shrink)

There has always been much controversy surrounding property rights in legal and political philosophy. Thinkers such as Plato, Locke, Kant, Hegel and Marx have all offered different views on the idea of property. This collection of essays, written by some of the most eminent scholars in the field, examines the most central issues of property theory from a variety of perspectives. The essays discuss whether property may be dissipated or used imprudently with impunity, and analyse how a person's property (...) should be distributed after death. They survey the economic landscape of intellectual property and show that Locke's celebrated justification for private property falters when it comes to copyrights and patents. They also demonstrate how important it is that institutions of property be carefully justified. The variety and originality of these essays are evidence that the theory of property is one of the most exciting areas of intellectual inquiry in the humanities and social sciences. (shrink)