A central aim within criminal justice ethics is to give a plausible justification concerning which type of acts ought to be criminalized by the state. One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm (...) class='Hi'>Principle. (shrink)

Unabridged dictionaries are dangerous books. In their pages man’s evilest thoughts find means of expression. Terms denoting all that is foul or blasphemous or obscene are printed there for men, women and children to read and ponder. Such books should have their covers padlocked and be chained to reading desks, in the custody of responsible librarians, preferably church members in good standing. Permission to open such books should be granted only after careful inquiry as to which word a reader plans (...) to look up, and how he plans to use it. (shrink)

The legitimacy of criminal law’s concern with offensiveness even in the absence of harm or danger must rest on the intuitive force of the examples given, most of which have been made as extreme as possible and depicted with uncompromising vividness. The seriousness of an offense is determined by four standards: the magnitude of the offense, the standard of reasonable avoidability, the Volenti maxim, and the discounting of abnormal susceptibilities. Having determined the seriousness of a given category of offense based (...) on these standards, the legislator will proceed to balance that seriousness against the reasonableness of various kinds of conduct that can produce it. (shrink)

According to the offense principle, the fact that wrongs are offensive makes them eligible for criminalization. Section “Introduction” unpacks this principle. Section “Offense and Offensiveness” discusses what it is for X to be offensive. Section “Offensiveness and Criminalization” argues that, whether we interpret offensiveness subjectively or objectively, the offense principle is not a sound principle. The fact that a wrong is objectively offensive does not bear on whether it should be criminalized. The fact that a wrong (...) is subjectively offensive is no reason to tackle it using the criminal law. Section “The Value of Offense” considers the conditions under which offense has value. It argues that, under some conditions, the fact that X is subjectively offensive counts against criminalizing X, while the fact that X is not subjectively offensive counts in favor of criminalization. Feinberg’s version of the offense principle—which holds that subjective offensiveness gives us reason to criminalize—is something close to the opposite of the truth. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding (...) "profound offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding (...) "profound offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

Profound offenses are misleadingly characterized as simply “offensive nuisances” because of their perceived qualitative difference from mere nuisances, and because of their independence of actual perception. The nub of the offensiveness in the “profound” cases is not personal resentment over a disagreeable experience, but outrage at the offending conduct on grounds quite independent of its effect on oneself. Examples of profound offenses include voyeurism, Nazis and Klansmen, execrated but “harmless” deviant religious moral practices, desecration of venerated symbols, and abortion and (...) mistreatment of corpses. The offense principle does not warrant legal interference in a person’s private conduct on the grounds that those who know that the conduct is taking place need protection from the profound offensiveness of their own bare knowledge. (shrink)

Offense to Others, the second in Joel Feinberg's four volume series The Moral Limits of the Criminal Law, provides the most extensive discussion to date of the problem of offensive conduct. Much that is here has been presented before in various places, which is not surprising as Feinberg has written as much, if not more on this subject than anyone else. But much that is here is new, and goes beyond just the discussion of whether the so called offense (...) class='Hi'>principle is a legitimate basis for legislation. (shrink)

This book offers a comprehensive study of the nature and significance of offense and offensiveness. It incorporates insights from moral philosophy and moral psychology to rationally reconstruct our ordinary ideas and assumptions about these notions. -/- When someone claims that something is offensive, others are supposed to listen. Why? What is it for something to be offensive? Likewise, it’s supposed to matter if someone claims to have been offended. Is this correct? In this book, Andrew Sneddon argues that we should (...) think of offense as a moralized bad feeling. He explains offensiveness in terms of symbolic value. We tend to give claims of both offense and offensiveness more credence than they deserve. While it is in principle possible for there to be genuine moral problems of offense and offensiveness, we should expect such problems to be rare. -/- Offense and Offensiveness: A Philosophical Account will be of interest to scholars and students working in moral philosophy and moral psychology. (shrink)

The feeling of being offended, as a moral emotion, plays a key role in issues such as slurs, the offense principle, ethics of humor, etc. However, no adequate theory of offense has been developed in the literature, and it remains unclear what questions such a theory should answer. This paper attempts to fill the gap by performing two tasks. The first task is to clarify and summarize the questions of offense into two kinds, the descriptive questions (e.g., what features (...) differentiate offense from similar moral states like anger?) and the normative questions (e.g., what are the conditions for taking offense to be apt?). The second task is to answer these questions by developing what I call ‘the violated norm theory of offense’. According to this theory, feeling offended entails that the norm one endorses is judged to be violated by the offender. Appealing to the violated norm enables this theory to answer the descriptive questions (e.g., taking offense differs from anger because of features like not requiring victims and the difficulty of animal offense) and the normative questions of offense (e.g., taking offense is apt only if the violated norm is universalizable). (shrink)

Joel Feinberg’s Offense to Others is the most comprehensive contemporary work on the significance of offense in a liberal legal system. Feinberg argues that being offended can impair a person’s liberty, much like a nuisance, and that it is therefore legitimate in principle to regulate conduct because of its offensiveness. In this article, I discuss some overlooked considerations that give us reason to resist Feinberg’s conclusion, even while granting this premise. My key claim is that the regulation of offense (...) can inadvertently increase the incidence of offense, by nurturing offense-taking sensibilities. In the course of defending this claim and spelling out its implications, I explain why concerns about the inadvertent nurturing of offense are now more pressing, given the identity–political character of contemporary offense-based social conflicts, and I discuss why a reluctance to legally regulate offensive conduct need not be insensitive to the identity–political issues that animate those conflicts. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding (...) "profound offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

Taboo terms offer a playground for linguistic creativity in language after language, and sign languages form no exception. The present paper offers the first investigation of taboo terms in sign languages from a cognitive linguistic perspective. We analyze the linguistic mechanisms that introduce offense, focusing on the combined effects of cognitive metonymy and iconicity. Using the Think Aloud Protocol, we elicited offensive or crass signs and dysphemisms from nine signers. We find that German Sign Language uses a variety of linguistic (...) means to introduce and enhance offense, many of which rely on iconic properties of the taboo sign. In conjunction with cross-linguistically common metonymic word-formation strategies, the degree of visual explicitness of a sign increases its potential to offend. Semantically similar taboo signs based on the same metonymic anchor but differing in their degree of iconicity also differ in offensiveness. This allows for creating dysphemisms and euphemisms via phonological changes to a sign. We further show that embodiment creates modality-enhanced ‘vicarious embarrassment’ in the viewer that results in the respective signs being judged obscene or offensive. Further, lexical blending and non-manual enhancement play a role in the creation of dysphemisms in DGS. Lastly, we propose that iconicity as a cognitive structuring principle of linguistic expressions constrains the possible semantic extensions of iconic taboo terms. (shrink)

This article advocates employing John Stuart Mill's harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms (...) generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill's ethical framework with an updated notion of harm, we can conclude that social coercion is not justified to restrict any harmless speech, no matter how offensive. Yet certain forms of speech, such as bigoted insults, are both harmful and fail to express a genuine opinion, and so do not deserve free speech protection. (shrink)

In recent multicultural conflicts, such as the Danish Muhammad cartoons affair and the religious controversy about having a gay pride parade in the holy city of Jerusalem, religious minority members have argued that certain acts should be prohibited because they offend their religious and cultural feelings. According to the orthodox view in current liberal thought, however, there should be no legal protection from mere insult to feelings and sensibilities, as related to sacred religious and cultural values as they may be. (...) In this article I challenge this view. I argue that certain offensive acts ought to be legally regulated and propose a normative principle for their regulation, which is consistent with neutral liberalism. I argue that some claims of offence to feelings boil down to a struggle for equality in the public sphere between competing cultural identities. I conceptualize such claims as claims that purport to protect people’s right in the integrity of their cultural identity. I suggest the vulnerable cultural identity principle, according to which the more vulnerable the social and civic status of one’s cultural identity is, the stronger her claim is from integrity of cultural identity. I argue that this principle avoids the problems of legal moralism and the subjectivity in evaluating painful feelings. (shrink)

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and (...) class='Hi'>Offence Principle with some other influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

The offense principle requires that an unpleasant state of mind or offense be produced wrongfully by another party, but not that it be an offense in the strict sense of ordinary language. The legislative problem of determining when offensive conduct is a public or criminal nuisance could be expressed, with equal accuracy, as a problem about determining the extent of personal privacy or autonomy. The former way of describing the matter lends itself to talk of balancing the independent value (...) or reasonableness of the offending conduct against the seriousness of the offense cause, whereas the latter way lends itself to talk of drawing boundaries between the various private domains of persons, and between private domains of a person and the public world. (shrink)

The article provides an outline of the basic principles and conditions of criminalisation of interferences with others’ property rights in the context of a specific context: a liberal, social democratic state, the legitimacy of which depends primarily on its impartiality between moral doctrines and the fair distribution of liberties and resources. I begin by giving a brief outline of the conditions of political legitimacy, the place of property and the conditions of criminalisation in such a state. With that framework in (...) place, I argue that interferences with others’ property rights should be viewed as violations of political duties stemming from institutions of distribution. I then discuss three implications of this view: the bearing of social injustice on the criminal law treatment of acts of distributive injustice; the expansion of criminalisation over the violation of distribution-related duties, which are considered criminally irrelevant under moral conceptions of criminalisation; and, finally, the normative significance of the modus operandi. (shrink)

In this paper, I critique one aspect of Simester and von Hirsch’s, Crimes, Harms, and Wrongs—their recognition of harm and offence principles, but failure to construct a paternalistic principle, despite their willingness to countenance some small measure of criminal paternalism. Construction of such a principle would have clarified the problems of as well as the limits to criminalising paternalism.

This is a study of possession offences, with the focus on those intended to penalise the risk of a serious harm. Offences of this kind are examined in the light of basic doctrines of the criminal law, and in the light of the proper limits of endangerment offences. They are found wanting in both respects, and are also found to pose particular sentencing problems. The conclusion is that many risk-based possession offences are unfair, save those that require proof of a (...) further intent or those aimed at a failure properly to safeguard a dangerous object. (shrink)

In the Principles of the Penal Code, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was sceptical of the need to create offences, but grudgingly accepted their value in light of deficiencies in procedure and the judiciary. These days the scepticism is even greater, with courts and commentators in the United States, Canada, (...) the United Kingdom and elsewhere believing that such offences deny a defendant the right to establish that he did not engage in the conduct that the presumed offence probabilistically but not necessarily indicates. On closer analysis, however, such scepticism appears unjustified. Almost all offences, and indeed almost all legal rules, are premised on a probabilistic relationship between the behaviour the rule encompasses and the behaviour that is the rule-maker's real concern. Presumed offences may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules. (shrink)

This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should (...) be criminalized also involve harm, nonetheless there may be good reasons to retain a separate Offense Principle. (shrink)

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights (...) of others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)

The prelims comprise: Liberty and Coercion Liberty‐Limiting Principles The Harm Principle The Offense Principle Legal Paternalism Legal Moralism Justice Need Conclusion Bibliography.

My first chapter criticizes the prevalent understanding of offensive conduct as conduct that causes others mental distress and develops a normative view of offensive conduct as conduct that treats others without due consideration or respect. My second chapter examines the relationship between 'harm' and 'offense'. I analyze harm as a setback to an 'interest-as-claim' that reduces a person's resources or capacities to function. I argue that offensive conduct is sometimes a harm and sometimes not. ;My third chapter criticizes a majoritarian (...) 'empirical' approach to determining the relative seriousness of offensive conduct and sets out a 'normative' approach that involves judging whether people have 'good reasons' to take offense at a type of conduct. My fourth chapter examines the problems created by the role social conventions play in people's reasons for taking offense. I argue that such conventions can be morally evaluated by examining what interests of individuals they protect, and whether these interests warrant protection. Only when social conventions survive moral evaluation can they form part of a 'good reason' for taking offense. ;My fifth chapter criticizes the legal concept of a 'standard person' for inadequately considering 'non-standard interests'. I argue that 'nonstandard group interests' due to 'natural vulnerabilities' and to 'socially constructed vulnerabilities' should be routinely considered for protection under the Harm and Offense Principles. I argue that 'special cultural sensibilities' may be extended protection when special reasons are present. ;My last chapter argues that my analysis of offensive conduct narrows the kinds of conduct considered for legal protection compared to analyses such as Joel Feinberg's, and that this narrowing helps avoid the moral and political problems Feinberg's analysis creates. I argue that the compatibility of the Offense Principle with liberalism depends on the rationale one has for it and the scope one assigns it. I conclude that my understanding of offensive conduct, the rationale I have for the Offense Principle, and the limited scope I assign it, make my approach to offense more compatible with liberalism than Feinberg's approach. (shrink)

A wholesale ban on uttering or writing obscene words cannot be justified even by the principle of legal moralism. Moreover, the offense principle cannot justify the criminal prohibition of the utterance of obscenities in public places even when these are intentionally used to cause offense. The use of obscene words can only be made criminal when it is an unjustified, deliberately imposed nuisance. This form of nuisance is a kind of harassment, and the fact that it employs obscene (...) words is by no means essential to its moral gravamen. Obscenity in the media is discussed. (shrink)

The Supreme Court views the word “obscene” as akin to word “pornographic”. Nothing is “obscene” unless it tends to cause erotic states in the mind of the beholder, and anything that produces this kind of “psychic stimulation” is a likely candidate for the obscenity label whether or not the induced states are offensive to the person who has them or anyone else aware of them. Recent Supreme Court decisions on the permissibility of pornography, particularly the various judicial formulae the court (...) has produced to deal with the problem, are reviewed. It is shown that the Court has vacillated between different legitimizing principles, applying either a liberal offense principle mediated by balancing tests or a thinly disguised moralism. (shrink)

The principle that a sentence should be proportionate to the seriousness of the offence remains at the centre of penal practice and scholarly debate. This volume explores highly topical aspects of proportionality theory that require examination and further analysis. von Hirsch and Ashworth explore the relevance of the principle of proportionality to the sentencing of young offenders, the possible reasons for departing from the principle when sentencing dangerous offenders, and the application of the principle to (...) socially deprived offenders. They examine the claim that the principle tends to be associated with greater severity in sentencing, and explore the relevance of penance and of restorative justice to proportionality theory. Their examination of arguments and counter-arguments culminates in a re-statement of the main criteria for proportionate sentencing.The authors are well known for their previous writings on proportionality theory, and this volume broadens the theory to deal with important contemporary issues in crime and punishment. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to (...) the lawmaker. (shrink)

The book defines and critically discusses the following five principles: the harm principle, legal paternalism, the offense principle, legal moralism and the dignity principle of criminalization. The book argues that all five principles raise important problems that point to rejections (or at least a rethink) of standard principles of criminalization. The book shows that one of the reasons why we should reject or revise standard principles of criminalization is that even the most plausible versions of the harm (...) principle and legal paternalism that have been offered so far are rendered redundant by general moral theories. Furthermore, it demonstrates that the other three principles (or versions thereof), the offense principle, legal moralism and the dignity principle of criminalization, can either be covered by the harm principle, thus making these principles also redundant, or be seen to have what look like other unacceptable implications (e.g. that versions of legal moralism are based on speculative and incorrect empirical assumptions or violate what is called the criminological levelling-down challenge). As such, there is reason to move beyond traditional principles of criminalization, and instead to investigate alternative principles the state should be guided by when attempting to justify which kinds of conduct should be criminalized. Moreover, this book presents and defends such a principle – the utilitarian principle of criminalization. (shrink)

ABSTRACT A new ‘political philosophy’ is indispensable to the ‘post-Corona world,’ and this paper tries to analyze the future of ‘liberal democracy’ in it. It shows that ‘liberal democracy’ faces a ‘global crisis’ that has begun before, but the ‘novel Coronavirus pandemic,’ as a setback for it, strongly encourages that crisis. ‘Liberalism’ and ‘democracy,’ which had long been assumed by ‘political philosophers’ to go together, are now becoming decoupled, and the ‘liberal values’ of ‘democracy’ are eroding. To find why and (...) how, this paper analyzes ‘authoritarianism,’ ‘totalitarianism,’ and the evils and propensities of ‘democracy’ that bring about further erosions of ‘liberal values.’ There may be difficult trade-offs to be made between ‘liberal’ and ‘authoritarian’ ‘values’ - and, after the experience of ‘Coronavirus,’ this paper shows the ‘illiberal or authoritarian democracy’ may become stronger. -/- KEYWORDS: democracy, liberalism, liberal democracy, illiberal democracy, the novel Coronavirus pandemic, Covid-19, authoritarianism, totalitarianism. -/- EXTENDED ABSTRACT For almost a century in West, ‘democracy’ has meant ‘liberal democracy’-a political system marked not only by ‘free and fair elections,’ but also by ‘liberal values.’ ‘Liberalism’ applied to the problem of the limits of the criminal law would require commitment to the presumption in favor of ‘liberty.’ If the word ‘liberal’ is to have any utility in this context, it should refer to one who has so powerful a commitment to ‘liberty’ that she is motivated to limit the number of acknowledged liberty-limiting or coercion-legitimizing principles as narrowly as possible. So, she only believes in ‘harm-principle’ as the morally relevant reason for criminal prohibitions. ‘Offense principle’ and ‘paternalistic’ and ‘moralistic’ considerations, when introduced as support for penal legislation, have no weight at all. So, it means ‘autonomy’ and ‘self-regarding vs. other-regarding actions distinction’ based on which the human is the owner of her mind and body and everything consenting adults do is beyond the realm of morality and law. It leads to ‘individual’ ‘basic rights and liberties’ such as ‘basic rights and liberties’ of ‘speech,’ ‘religion,’ and ‘property’ and ‘collective’ ‘basic rights and liberties’ such as ‘basic rights and liberties of assembly,’ ‘civil society,’ ‘political pluralism,’ ‘democratic institutions,’ and ‘non-governmental organizations.’ ‘Liberalism’ also believes in ‘equality of conditions, ‘equal and free participatory rights in political decision making,’ and ‘collective self-governance.’ It also believes in the ‘rule of law,’ a ‘separation of powers,’ and ‘checks and balances.’ However, even under fair and free elections, the elected leaders can be ‘populists,’ ‘ultra-nationalists,’ ‘racists,’ ‘fascists,’ and ‘authoritarians’ who do not respect ‘inviolable basic rights and liberties,’ and suppress ‘minorities.’ Democratically elected leaders can routinely ignore constitutional limits on their power and deprive their citizens of ‘basic rights and liberties.’ The two strands of ‘liberal democracy’ have been coming apart in the world, and the ‘liberal’ elements of ‘democracy’ have been fraying and eroding even before the ‘novel Coronavirus pandemic.’ Even before the Coronavirus hit, there was already much discussion of a crisis of ‘liberal democracy.’ In particular, there has been a debate about whether ‘liberalism’ and ‘democracy,’ which had long been assumed to go together, were becoming decoupled. This paper shows ‘liberal democracy’ faces a ‘global crisis’ that had begun before the ‘novel Coronavirus pandemic.’ It also analyzes ‘authoritarianism,’ ‘totalitarianism,’ ‘liberalism,’ and ‘democracy’ and shows that Covid-19 is a setback for ‘liberal democracy.’ What is striking about the current moment is that many of the ‘liberal’ elements of ‘democracy’ are so far holding up under immense pressure. ‘Illiberal democracies’ seemed to be emerging in many countries. This model of ‘illiberal democracy,’ in which elections continue to be held but some individual rights and liberties are curtailed, may emerge stronger from this new crisis. In that sense, the ‘pandemic’ may become a challenge not only to ‘democracy’ as such but also to ‘liberal democracy’ in particular – in other words, a system of popular sovereignty together with guaranteed basic rights, such as freedom of association and expression and checks and balances on executive power. ‘Authoritarian’ procedures may succeed in mitigating the spread of the ‘Coronavirus,’ but the world now faces another problem: that when the virus recedes, many ‘liberal democracies’ will be far less ‘liberal’ or ‘democratic’ than they were before. In times of crisis, ‘liberal values’ have been ignored temporarily in the name of executive power. However, the ‘temporary’ can become ‘permanent.’ In addition, if citizens lose their faith in the legitimacy of ‘liberal democracy’ as the best form of government, and think ‘liberal democracy’ cannot function effectively during a crisis, and ‘authoritarian regimes’ manage the crisis more decisively, the world will slide towards ‘illiberal or authoritarian democracy,’ and many ‘liberal democracies’ will be at grave risk of failure. There may now be difficult trade-offs to be made between those basic rights and security - and, after the experience of Covid-19, many citizens may choose security. (shrink)

This article analyses the definitional reforms and re-categorisation of sexual offences under the Thai Penal Code in the period of 13 years, namely, the 2007 and 2019 amendments. The incidents are of uniqueness as the 2007 amendment shared much resemblance with jurisdictions that have departed the original meaning of rape and attempted to re-conceptualise sexual offences, whereas the 2019 amendment shared much similarities with jurisdictions that decided to retain the original meaning of rape and categorise other serious sexual offences in (...) other names. The article argues that, apart from accounts based on criminal law principles, the two definitional revisions had been carried out in the environments of different legal culture and social values in the Thai legislative bodies. It appears that the 2007 amendment followed a feminist perspective that emphasises the harm of sexual offences to bodily/sexual integrity as a state for individuals to realise their personhood, while the re-categorisation of sexual offences in the 2019 amendment suggests a greater role of the feminist perspective in another camp that views penile-penetration inherently differs from non-penile penetration and implies that the law continues, to a certain extent, regulating sexuality since the 2019 amendment used the reason of “naturalness” of sexual intercourse to distinguish between penile penetration and non-penile penetration. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an (...) actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

Typically the justification of criminal statutes is based on "liberty-limiting principles" -- e.g., the Harm Principle, the Offense Principle, Legal Paternalism, Legal Moralism, etc. Two philosophers of the criminal law, however -- Richard J. Arneson and Cass R. Sunstein -- take an entirely different tack. Both countenance the use of the criminal law to foreclose one's future options, seeking to preserve one's "true self" from the temptations of one's baser desires. (For reasons which become clear, I call this (...) "community self-paternalism".) In this paper, I take a careful look at "community self paternalism"; scrutiny reveals that this proposed justification of criminalization is quite different from its initial appearance. Revealing its true character dispels much of its initial appeal. I then argue for its rejection; of necessity, "community self-paternalism" treats some individuals as means merely, and not as ends in themselves. (shrink)

Compromise on moral matters attracts ambivalent reactions, since it seems at once laudable and deplorable. When a hotly-contested phenomenon like assisted dying is debated, all-or-nothing positions tend to be advanced, with little thought given to the desirability of, or prospects for, compromise. In response to recent articles by Søren Holm and Alex Mullock, in this article I argue that principled compromise can be encouraged even in relation to this phenomenon, provided that certain conditions are present . In order to qualify (...) as appropriately principled, the ensuing negotiations require disputants to observe three constraints: they should be suitably reflective, reliable and respectful in their dealings with one another. The product that will result from such a process will also need to split the difference between the warring parties. In assisted dying, I argue that a reduced offence of ‘compassionate killing’ can achieve this. I acknowledge, however, that splitting the difference can induce splitting headaches, as there remain certain questions to be answered. Hopefully, however, sufficient work is done here to defend attempts to occupy the middle ground, whether these relate to assisted dying specifically or to other disputed moral matters. (shrink)

Contents include: Foreword Editor's Preface Introduction by the Editor Preface Introduction BOOK ONE: The Objective Problem Concerning the Truth of Christianity Introductory Remarks Chapter I: The Historical Point of View 1. The Holy Scriptures 2. The Church 3. The Proof of the Centuries for the Truth of Christianity Chapter II: The Speculative Point of View BOOK TWO: The Subjective Problem, The Relation of the Subject to the Truth of Christianity, The Problem of Becoming a Christian PART ONE: Something About Lessing (...) Chapter I: An Expression of Gratitude Chapter II: Theses Possibly or Actually Attributable to Lessing 1. The subjective existing thinker has regard to the dialectics of the process of communication 2. The existing subjective thinker is in his existential relation to the truth as negative as he is positive; he has a much humor as he has essential pathos; and he is constantly in process of becoming, i.e. he is always striving 3. Lessing has said that accidental historical truths can never serve as proofs for eternal truths of the reason; and that the transition by which it is proposed to base an eternal truth upon historical testimony is a leap 4. Lessing has said that, if God held all truth in His right hand, and in His left the lifelong pursuit of it, he would choose the left hand A. A logical system is possible B. An existential system is possible PART TWO: How the Subjectivity of the Individual Must be Qualified in Order that the Problem May Exist for Him Chapter I: The Task of Becoming Subjective. The conclusion that would be forced upon ethics if the attainment of subjectivity were not the highest task confronting a human being—Considerations left out of account in connection with the closer understanding of this—Examples of thinking directed towards becoming subjective Chapter II: The Subjective Truth, Inwardness; Truth is Subjectivity Appendix. A Glance at the Contemporary Effort in Danish Literature Chapter III: Real or Ethical Subjectivity—The Subjective Thinker 1. Existence and Reality 2. Possibility as higher than Reality—Reality as higher than Possibility—Poetic and Intellectual Ideality—Ethical Ideality 3. The Simultaneity of the Individual Factors of Subjectivity in the Existing Subject—The Constrast between this Simultaneity and the Speculative Process 4. The Subjective Thinker—his Task, his Form, his Style Chapter IV: The Problem of the Fragments: How can an Eternal Happiness be based upon Historical Knowledge? Section I. For Orientation in the Plan of the Fragments 1. That the point of departure was taken in the pagan consciousness, and why 2. The importance of a preliminary agreement concerning what Christianity is, before there can be any question of mediating between Christianity and speculative thought. The absence of such an agreement favors the proposal of medication, while at the same time making any mediation illusory; the presence of such an agreement precludes mediation 3. The problem of the Fragments viewed as a problem, introductory not to Christianity, but to becoming a Christian Section II. The Problem Itself. The eternal happiness of the individual is decided in time through the relationship to something historical, which is furthermore of such a character as to oinclude in its composition that which by virtue of its essence cannot become historical, and must therefore become such by virtue of the absurd A. Existential Pathos 1. The Initial Expression for Existential Pathos: the absolute direction (respect) toward the absolute telos, expressed in action through the transformation of the individual's existence Aesthetic Pathos—The deceptiveness of the principle of mediation—The medieval monastic movement—The simultaneous maintenance of an absolute relationship to the absolute telos and a relative relationship to the relative ends 2. The Essential Expression for Existential pathos: Suffering—Fortune and misforutne as the expression for an aesthetic view of life, in constradistinction to suffering as the expression of a religious view (illustrated by reference to the religious discourse)—The Reality of suffering (humor)—The reality of suffering in the last instance as evidence for the possession by the existing individual of a relationship to an eternal happiness—The illusion of religiosity—The category of Anfechtung—The primary ground and significance of the religious suffering: The dying away from the life of immediacy while still remaining in the finite—An edifying divertisement—Humor as an incognito for religiosity 3. The Decisive Expression for existential pathos: Guilt—That the investigation goes backward instead of forward—The eternal recollection of guilt is the highest expression for the relation between the consciousness of guilt and an eternal happiness—Lower expressions for the consciousness of guilt, and corresponding forms of satisfaction—Self-imposted penance—Humor—The religiosity of hidden inwardness Intermediate Clause between A and B B. The Dilectical 1. The dialectical contradiction which constitutes the breach: to expect an eternal happiness in time through a relationship to something else in time 2. The dialectical constradiction that an eternal happiness is based upon something historical 3. The dialectical contradiction that the historical fact here in question is not a simple historical fact, but is constituted by that which only against its nature can become historical, hence by virtue of the absurd Appendix to B. The retroactive effect of the dialectical upon the pathetic, and the factor simultaneously present in the pathos (a) The consciousness of sin (b) The possibililty of offense (c) The smart of sympathy Chapter V. Conclusion. About Childish Christianity Appendix. For an Understanding with the Reader First and Last Declaration Notes Index Originally published in 1941. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

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

Criminal theorists struggle to account for the “totality principle”—the idea that no matter how many small crimes you commit, your punishment should not exceed that for a more serious offense. Andrew Ashworth, for instance, argues that “overall proportionality” should be preserved but that this is a “pragmatic” solution. This paper argues that a retributivist can accept overall proportionality without abandoning her retributivism. I offer two lines of defense. The first is to show that the unit that we are aggregating (...) may be more complex than first appears. The second relies on insights from the headaches versus lives literature, and how we should rescue one person dying before preventing one million people from headaches. The harms that we impose on others, and the harms that defendants suffer because of punishment, do not exist on one single scale. Hence, the true problem, I maintain, is not how culpability functions, but how our particular mode of punishment does. When we only have one primary mechanism to punish —put people in prison—then aggregating offenses appears as though it must quickly lead to numerous acts of littering being punished more than arson. With a more nuanced punitive response, we can punish minor offenses every time without surpassing the kinds of punishment we impose on more significant offenses. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Contradiction and Legislation Regarding the Right to LifeKevin L. Flannery, S.J.Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny. Edited by Pilar Zambrano and William Saunders, with concluding reflections by John Finnis. Berlin: Peter Lang, 2019.The most fundamental principle of law is the principle of non-contradiction. This is Thomas Aquinas's position in the seminal article on the natural law, Summa theologiae I-II, question 94, article (...) 2, where, citing Aristotle, he formulates the principle as, "One should not simultaneously affirm and negate." Lafter in the same article, Thomas offers a practical formulation of the same principle, "Good is to be done and pursued and evil avoided"; but in law, since it is contained in propositions (airmations and negations) as distinct from ideas regarding the pursuit of goods, the prior formulation is the more immediately relevant of the two.The book under review is important in that, by going through the legal history regarding abortion and related issues in a number of different countries—the United States, Canada, Italy, Spain, Poland, Ireland (Eire), Costa Rica, Argentina, Chile, Mexico, and Peru—it causes to emerge any number of times the realization that legislation and judicial decisions in favor of abortion "rights" invariably infect a legal system with contradictions and inconsistencies of various sorts. The present essay is, therefore, not your typical book review. Its objective is simply to list some of the legal contradictions and inconsistencies identified by the book's various authors as they describe the legal status of the unborn in their respective nations. [End Page 1323]William Saunders's very clear and comprehensive first chapter is entitled, "Judicial Interference in the Protection of Human Life in the United States: Actions and Consequences." In it, he describes, among other things, the Human Cloning Prohibition Act passed by the U.S. House of Representatives in 2003, which prohibited "any person or entity, public or private" from performing human cloning (23). He speaks also of a bill proposed in the U.S. Senate once the Human Cloning Prohibition Act had passed in the House of Representatives. This Senate bill (which was entitle, "The Human Cloning Ban and Stem Cell Research Protection Act") would have prohibited "any person or other legal entity" from conducting human cloning, even while allowing nuclear transplantation, which it defines as "transferring the nucleus of a human somatic cell into an oocyte from which the nucleus... ha[s] been... removed or rendered inert." The problem here, as Saunders explains, is that this latter definition "is the very definition of cloning" (25). In other words, in the same year, two pieces of legislation were considered in the Congress of the United States, both purporting to ban human cloning, one of which would have permitted what the other described (correctly) as human cloning and so prohibited.In the second chapter, "Whither United States Abortion Law?" by Gerard V. Bradley, discussed, among other things, is the inconsistency between the United States Supreme Court's pro-abortion decision Roe v. Wade and various laws, both state and federal, prohibiting feticide. Bradley says of the 2004 federal Unborn Victims of Violence Act that, "in pertinent part it says that 'whoever' 'causes the death of or bodily injury to,' a 'child who is in utero' is guilty of an offense apart from any accompanying offense against the woman carrying the child." The penalty for such an act is the same as would be imposed if the act were inflicted upon the unborn child's mother: if, for instance, the mother was killed. "A child in utero," reports Bradley, "is defined as a member of the species homo sapiens, at any stage of development, who is carried in the womb'" (37).The problem here is that prosecutable under this law are acts identical with those performed legally by abortionists. Bradley mentions two cases in which a woman's male partner—in one case the woman's husband—effected by stealth the abortion of her child. In one case, the male purchased abortion pills and affixed to their container a pharmacy label indicating that it contained a common antibiotic; in the other, the husband obtained the same type of... (shrink)

Like many of his medieval successors, Peter Abelard offers principles for ranking sins. Moral self-knowledge, after all, requires that we recognize not justour sinfulness, but also the extent of our offense. The most important distinction among sins is that between venial and mortal sins: venial sinners show less contempt and may also be victims of bad moral luck, and so they are far less blameworthy. However, the subjective principle which Abelard uses to protect the venial sinner from blame appears (...) to have absurd consequences: some agents whom we intuitively find saintly turn out to be mortal sinners, while other agents whom we intuitively judge wicked turn out to be mere venial sinners. I argue that Abelard suggests promising replies to these objections, but these replies themselves depend on controversial views about moral psychology. (shrink)

In "Kant on Freedom and the Appropriate Punishment," the author begins by noting that in The Metaphysics of Morals , Kant asserts that a wrongdoer should be given a punishment that is similar to his wrongdoing. He then makes two interpretive claims with regard to this assertion.First, he claims that the best way to understand this assertion in the context of other things Kant says is that the state is obligated to punish a wrongdoer in a way that imposes on (...) the wrongdoer an amount of suffering equal to what he caused and through an action that is similar in type to the wrongdoer's offense. The argument in support of this claim occurs in section II and rests on two more specific interpretive claims about Kant's theory: that state punishment should resemble the wrongdoer's acts and should involve the same level of suffering as was involved in the original wrongdoing and that punishment in accordance with these constraints is an obligatory duty.Second, the author claims that on Kant's theory this principle of appropriate punishment is justified because it restores equality in the distribution of freedom for members of the state. The argument in support of this claim occurs in section III. The argument rests in part on Kant's justification of the state and coercion in terms of the value of equalized freedom. By applying this same justification to Kant's principle of appropriate punishment, the author claims to be able to account for the principle as well as to relate the principle to Kant's political theory. Der vorliegende Beitrag beginnt mit der Feststellung, daß Kant in der Metaphysik der Sitten geltend macht, ein Übeltäter solle eine Bestrafung erleiden, die mit seiner Tat vergleichbar ist. Im Hinblick auf diese Forderung Kants werden zwei Thesen aufgestellt.Erstens wird behauptet, die genannte Forderung sei vor dem Hintergrund sonstiger Äußerungen Kants am besten dahingehend zu verstehen, daß der Staat verpflichtet sei, einen Übeltäter in einer Weise zu bestrafen, die diesem ein Maß von Leid zufügt, das dem von ihm selbst verursachten gleichkommt. Geschehen müsse dies durch eine Handlung, die in ihrer Art dem vom Übeltäter begangenen Verbrechen entspricht. Die Begründung dieser These erfolgt in Abschnitt II und stützt sich wiederum auf zwei mehr in die Einzelheiten gehende Thesen zu Kants Theorie: Staatliche Bestrafung sollte den Handlungen des Übeltäters ähneln und Leid in einer Größenordnung mit sich bringen, wie es auch die ursprüngliche Tat zur Folge hatte. Bestrafung in Übereinstimmung mit diesen Bedingungen ist eine Pflicht.Zweitens wird die Auffassung vertreten, dieses Prinzip angemessenen Strafens sei im Rahmen der Theorie Kants gerechtfertigt, weil es für die Mitglieder des Staates die Gleicheit in bezug auf die Verteilung der Freiheit wiederherstelle. Die Begründung dieser These findet sich in Abschnitt III und beruht zum Teil auf Kants Rechtfertigung von Staat und Zwang durch den Verweis auf den Wert gleichmäßig verteilter Freiheit. Die Übernahme eben dieser Rechtfertigung auch für Kants Theorie angemessenen Strafens soll sowohl dazu dienen, das Prinzip selbst zu begründen, als auch dazu, es in Kants politische Theorie einzuordnen. (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)

In the preceding pages, Husserl's objections to the content of Descartes'Meditations on First Philosophy have been reconstructed over the line ofargument in that work. The tone of his interpretation moved from ambivalence to outfight rejection. Husserl's ambivalence manifested itself intwo of the three meditations to which he pays significant attention. We sawthe much heralded methodological strategy of the First Meditation, uponclose examination, is not endorsed by Husserl, that he finds reason toprotest against the content of each individual skeptical argument and (...) seesthere in general a subjectivistic doctrine of consciousness already at work.Nevertheless, Husserl clearly wanted to preserve the essential intent of theCartesian method of doubt if not its letter, namely, the move toward callinginto question naive presuppositions about the world, raising the possibilityof its non-existence, thereby resuscitating sheer wonder about the world,and rendering it problematic in its relation to subjectivity. Historically, thisstrategy has precedent in the ancient Greek sophists, who, however unintentionally, Husserl claims were the first to manifest a transcendental im-pulse. Moving into the Second Meditation and the so-called discovery ofthe ego cogito, we found a stronger ambivalence on Husserl's part. Whileapplauding Descartes for uncovering the truth that lay hidden at the basis ofskepticism, the subsequent interpretation of the ego as soul and substantialentity clouds this inchoative insight into pure transcendental subjectivity.By the Third Meditation Husserl's ambivalence moved to out right rejection. There are a number of reasons why: the circularity of Descartes'theological theory of evidence ; the epistemologicalcommitment to a subjectivistic theory of consciousness; hisScheinprobleme along with the assumption of an objectivein-itself forever remote from intuition; the ontological commitment to twofinite substances; and the attempt to deductively redress the cognitiveschism created by these commitments through appeal to the principle ofcausality and the goodness of God. All these gave Husserl decisive occa-sion to take leave of the Cartesian path of meditation.A further reason why Husserl's meditations consistently break off in theThird Meditation is suggested by noticing the textual moment whereHusserl's silence begins. It is that moment where Descartes dips into theScholastic tradition for the concepts of objective and formal reality in orderto prove the existence of God. The problem, I suggest, is that here Des-cartes insufferably compromises his radicalness. More specifically, with theconcepts of objective and formal reality Descartes installs on the metaphysi-cal level the distinction between image and original already operative allalong in the earlier Meditations. Now, through the concepts of objective andformal reality, the image /original distinction is given ex-planatory power and raised to a truth so evident as to be beyond the reach ofmethodic doubt. The fact that this distinction is employed to deduce theexistence of God is not so much the phenomenological offense as themetaphysical naivete of positing a formal reality, an in itself, to account forthe very matters in question. (shrink)

Un travail de terrain ethnographique dans un grand tribunal pour enfants de la région parisienne sur la décision d’incarcérer des mineurs, fait apparaître l’utilisation de critères stricts qui réduit considérablement la prise en compte de la personnalité et de l’histoire des jeunes infracteurs placés en détention provisoire. Ainsi débarrassée de l’adolescent, la décision d’incarcération devient facilement l’objet de positionnements identitaires des magistrats. Derrière les motivations officielles se cachent en effet toujours des motifs d’ordre relationnel, des défenses de position et d’identité (...) entre les substituts et les juges pour enfants. Lorsqu’ils décident ou non d’incarcérer un mineur, les magistrats mobilisent donc moins leur sens du bon et du juste envers l’adolescent et son infraction, qu’ils ne s’engagent à partir des constructions identitaires qui leur permettent de se situer à l’intérieur de leur corps. Dès lors, la personne qui compte est moins le jeune infracteur que le magistrat qui décide de son destin. Ce qui va à l’encontre du principe phare de l’Ordonnance de 1945 qui régit la justice des mineurs, et recommande avant tout la prise en compte de la « personnalité » du mineur.Fieldwork in a major juvenile court in the Paris area shows how the use of strict incarceration criteria considerably reduces the possibility for taking into account a young offender’s personality and past. The decision to incarcerate, by getting rid of the youth, soon becomes the grounds on which magistrates and public prosecutors make a stand that expresses their own identity. Behind official motivations are rationales of a relational sort that lead prosecutors and magistrates to defend current positions and identities. When deciding whether or not to incarcerate a minor, judges use their sense of what is right and just toward the adolescent in light of his offense ; but they do so by referring to a sense of identity whereby they position themselves within their occupational corps. As a consequence, the person who counts is not so much the juvenile offender as the magistrate who decides his fate. This does not comply with the key principle of the Ordinance of 1945, which instituted juvenile justice and recommends that, above all, the minor’s personality be taken under consideration. (shrink)

When the US Supreme Court decided in Graham v. Florida that the Cruel and Unusual Punishments Clause of the Eighth Amendment of the Constitution prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor, it stated that “[t]he concept of proportionality is central to the Eighth Amendment” and that it is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” These statements make two claims—one legal and (...) one philosophical. The philosophical claim is that justice requires proportionality in punishment, and the legal claim is that this principle of justice is central to the Eighth Amendment ban on cruel and unusual punishments. The aim of this chapter is to examine the concept of proportionality in punishment from multiple vantage points—practical, legal, and philosophical—and consider its enduring importance and persistent difficulties. (shrink)

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and regarding whether the principle can deliver absolute judgments, or (...) only comparative ones. This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment. It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent’s culpability in relation to their wrongdoing. (shrink)

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes -- as a (...) justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship. (shrink)

This book addresses the question: "What should be the appropriate limits to free speech?" The author claims that it is the state, rather than abstract principles, that must provide the answer. The book defends a version of Hobbesian absolutism and rejects the dominant liberal idea that there is a right (human or civil) setting the boundaries of free speech. This liberal view can be known as the "principled defence of free speech", in which speech is established as a constitutional (...) class='Hi'>principle that has priority over the state. The author instead offers an "unprincipled approach to free speech", suggesting that the boundaries of speech must necessarily be set by the state, which in liberal democracies means through social and political contestation. The final chapter applies the argument to the topic of hate speech and argues that it is appropriate to limit such speech when it causes harm and offense. The book will be of use to students and scholars across political theory, political science, sociology, philosophy and law. (shrink)