Many assume that whenever government is entitled to make a law, it is entitled to enforce that law coercively. I argue that the justification of legal authority and the justification of governmental coercion come apart. Both in ideal theory and in actual human societies, governments are sometimes entitled to make laws that they are not entitled to enforce coercively.

After a regime-changing war, a state often engages in lustration—condemnation and punishment of dangerous, corrupt, or culpable remnants of the previous system—e.g., de-Nazification or the more recent de-Ba’athification in Iraq. This common practice poses an important moral dilemma for liberals because even thoughtful and nuanced lustration involves condemning groups of people, instead of treating each case individually. It also raises important questions about collective agency, group treatment, and rectifying historical injustices. Liberals often oppose lustration because it denies moral individualism and (...) ignores rule of law, and their only justifications for lustration are consequentialist ones. This article suggests that lustration may not necessarily be a problem for liberals. While group treatment might be justified on grounds of convenience and pragmatism in times of transitional justice, there are also valid moral arguments consistent with moral individualism and due process for wholesale group punishment after a war. This article offers four overlapping moral justifications, in a robust defense of the core concept of lustration that is covered by each argument. (shrink)

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

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the (...) criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered. (shrink)

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions—in particular, the disciplinary assumptions—implicit in influential contributions to debates on the presumption (...) of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers routinely treat the presumption of innocence as epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts. (shrink)

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook (...) one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts. (shrink)