By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. (...) This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds. (shrink)

This paper considers the applicability of expressive theories of punishment to the punishment of corporate entities. The author argues that although arguments which suggest that the denunciatory account is superior to a communicative account in paradigmatic cases of punishment cannot be transferred straightforwardly to cover this kind of case, there are other reasons, connected with the different attitudes we have to regret and remorse in individual and collective cases, for preferring a communicative to a denunciatory account here.

Criminal offenders may be offered to participate in voluntary rehabilitation programs aiming at correcting undesirable behaviour, as a condition of early release. Behavioural treatment may include direct intervention into the central nervous system (CNS). This article discusses under which circumstances voluntary rehabilitation by CNS intervention is justified. It is argued that although the context of voluntary rehabilitation is a coercive circumstance, consent may still be effective, in the sense that it can meet formal criteria for informed consent. Further, for a (...) consent to be normatively valid (“take the wronging out of the act”) under a coercive circumstance, the subject to be treated must (1) have the sovereign authority to consent, and (2) the offer-giver must be in the right normative position to make the offer. While I argue that subjects do have the sovereign authority to consent to treatment, I also argue that inappropriate offers yield invalid consents. Considerations on inappropriate offers should therefore inform which kinds of CNS intervention-based rehabilitation schemes the state may propose as part of the criminal justice system. Yet as I conclude in this paper, while there are some intrinsic constraints on voluntary rehabilitation programs, the main constraints on voluntary rehabilitation are likely to be contingent overriders. However, CNS intervention is not ruled out as such in the context of voluntary rehabilitation. (shrink)

The paper suggests that there are two different ways in which a legal system restricts an individual’s rights. It can either grant a power that revokes the legal protection of the right or it can acknowledge the infringement of a legal right and yet justify such an infringement by means of a criminal law justification. The distinction proposed by the paper has both expressive and practical implications and is useful in solving dilemmas arising in emergencies when constitutional constraints make it (...) impossible to grant the power to revoke legal protection of a basic right. In some of these situations a criminal law justification might support infringement of such a right. This claim is demonstrated by analyzing the ruling of the German Constitutional Court concerning the shooting down of a hijacked airplane in circumstances similar to those of September 11. (shrink)

The standard response to engineering disasters like the Deepwater Horizon case is to ascribe full moral responsibility to individuals and to collectives treated as individuals. However, this approach is inappropriate since concrete action and experience in engineering contexts seldom meets the criteria of our traditional moral theories. Technological action is often distributed rather than individual or collective, we lack full control of the technology and its consequences, and we lack knowledge and are uncertain about these consequences. In this paper, I (...) analyse these problems by employing Kierkegaardian notions of tragedy and moral responsibility in order to account for experiences of the tragic in technological action. I argue that ascription of responsibility in engineering contexts should be sensitive to personal experiences of lack of control, uncertainty, role conflicts, social dependence, and tragic choice. I conclude that this does not justify evading individual and corporate responsibility, but inspires practices of responsibility ascription that are less ‘harsh’ on those directly involved in technological action, that listen to their personal experiences, and that encourage them to gain more knowledge about what they are doing. (shrink)

Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

I argue for the unexceptionality of evidence about what rationality requires. Specifically, I argue that, as for other topics, one’s total evidence can sometimes support false beliefs about this. Despite being prima facie innocuous, a number of philosophers have recently denied this. Some have argued that the facts about what rationality requires are highly dependent on the agent’s situation and change depending on what that situation is like. (Bradley 2019). Others have argued that a particular subset of normative truths, those (...) concerning what epistemic rationality requires, have the special property of being ‘fixed points’—it is impossible to have total evidence that supports false belief about them. (Smithies 2012; Titelbaum 2015). Each of these kinds of exceptionality permits a solution to downstream theoretical problems that arise from the possibility of evidence supporting false belief about requirements of rationality. However, as I argue here, they incur heavy explanatory burdens that we should avoid. (shrink)

The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.

Explores five fault lines in the fledgling field of responsibility theory, serious methodological disputes traceable to P.F. Strawson's "Freedom and Resentment.".

Duress is a defense in both law and morality. The bank teller who provides an armed robber with the bank vault combination, the innocent suspect who fabricates a story after hours of interrogation, the Good Samaritan who breaks into a private cabin in the woods to save a stranded hiker, and the father who drives at high speed to rush his injured child to the hospital—in deciding how to respond to agents like these, we should take into account that they (...) have acted under duress. In this paper, I offer a new duress defense, which I call “distinctive duress.” The distinctive-duress defense is neither ordinary justification nor ordinary excuse. Rather, it is a defense available to agents who act wrongly because they are appropriately insensitive to certain reasons. In the distinctive-duress cases, an agent’s normative sensitivities are rightly directed elsewhere, leading them awry. (shrink)

Journal Name: SATS Issue: Ahead of print.

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper (...) offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed. (shrink)

The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is (...) not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. (shrink)

Free will sceptics claim that we lack free will, i.e. the command or control of our conduct that is required for moral responsibility. There are different conceptions of free will: it is sometimes understood as having the ability to choose between real options or alternatives; and sometimes as being the original or true source of our own conduct. Whether conceived in the first or in the second way, free will is subject to strong sceptical arguments. However, free will sceptics face (...) a difficulty: doubting the existence of free will might itself be problematic, whether free will exists or not. Three main considerations are offered in support of this claim. Firstly, it is said that free will sceptics confuse contexts: even if they are right to doubt the existence of free will in the philosophy classroom, they are wrong to do so in other contexts, such as day-to-day interactions or a court of law. Secondly, it is said that free will scepticism is incompatible with inescapable and indispensable human practices such as practical deliberation or moral criticism and evaluation. For, to deliberate about what to do, we must presume that we have true options or alternatives. And to judge that some human practices are wrong, we need to assume the existence of moral responsibility. Thirdly, free will scepticism is sometimes said to be self-defeating, on the grounds that it cannot be rational to believe free will scepticism, because free will is required for rationality. This thesis critically assesses these arguments. None takes free will scepticism down, but all are instructive about how not to be a sceptic. They trace the ‘contours’ of free will scepticism by discrediting some conceptions of free will and some arguments for free will scepticism. (shrink)

This essay suggests that while Antony Duff's model of criminal punishment as secular penance is pregnant with possibilities for theological reception and reflection, it proceeds by way of a number of separations that are brought into question by the penitential traditions of Christianity. The first three of these—between justice and mercy, censure and invitation, and state and victim, constrain the true communicative character of his account of punishment. The second set of oppositions, between sacrament and virtue, interior character and external (...) action, and formal and moral reconciliation, subject the model of state punishment as secular penance to problematic liberal and libertarian constraints. A postsecular analogy, outlining a theology of the invitational nature of divine judgment, and drawing on Thomas Aquinas's account of penance as both sacrament and virtue, is proposed. (shrink)

Many believe that a citizen who engages in civil disobedience is not exempt from the sanctions that apply to standard law-breaking conduct. Since he is responsible for a deliberate breach of the law, he is also liable to punishment. Focusing on a conception of responsibility as answerability, I argue that a civil disobedient is responsible (i.e. answerable) to his fellows for the charges of wrongdoing, yet he is not liable to punishment merely for breaching the law. To support this claim, (...) I defend an account of political obligation framed in terms of respect for (rather than mere obedience to) the law, and argue that the mere illegality of civil disobedience does not suffice to establish wrongdoing. I then discuss and reject three objections to my argument. (shrink)

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian (...) theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others. (shrink)

Philip Pettit’s conception of freedom as nondomination is modally robust in that it requires not simply reducing the probability of uncontrolled interference by others but entirely eliminating that possibility. In this article, I consider whether freedom as nondomination provides an attractive analysis of official discretion, particularly in the context of the criminal law, an area of recurring interest for Pettit. I argue that not only does the modally robust character of freedom as nondomination have some rather unattractive implications in the (...) criminal law, but that it sits poorly with Pettit’s more general ambitions to provide a consequentialist framework for the evaluation of social institutions. Drawing on recent work by Niko Kolodny, I develop an ‘anti-deference’ interpretation of nondomination and contrast it to Pettit’s modally robust conception. (shrink)

Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general compliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of different (...) kinds of crime. (shrink)

A companion to 'Punishment: Consequentialism' and 'Punishment: Nonconsequentialism', which examine attempts to justify punishment as a state institution, this paper considers possible alternatives to punishment. On the assumption that there are two elements to punishment, an element of condemnation and of hard treatment, the paper considers, first, the alternative of condemnation without hard treatment, and secondly, of hard treatment without condemnation. The paper then looks ahead to possible developments in thinking and theorising about punishment.

In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

This paper is concerned with the tensions that arise when one juxtaposes one important liberal understanding of the nature and use of state power in circumstances of pluralism and (broadly) retributive accounts of punishment. The argument is that there are aspects of the liberal theory that seem to be in tension with aspects of retributive punishment, and that these tensions are difficult to avoid because of the attractiveness of precisely those features of each account. However, a proper understanding of both (...) liberalism and retributive punishment allows us to dissolve some of the tensions whilst also bringing each position into sharper relief. The paper begins by introducing the liberal position and outlining the apparent tensions that may arise with retributive punishment. In so doing, there is also a brief discussion of how this debate relates to the more familiar dispute between legal moralists and their opponents. The paper then proceeds by considering each of the areas of tension in turn. (shrink)

A la vanguardia del debate clásico sobre la justificación del castigo, algunas variantes del republicanismo penal sugieren que tal fundamento debe buscarse en una relación anterior al crimen: en una relación política. Afirman que podemos castigarnos porque pertenecemos, en conciudadanía, a una misma comunidad política. Pero entonces aparece necesariamente la pregunta sobre cómo se justifica el castigo a personas extranjeras. Con referencias al caso argentino, este artículo discute con las explicaciones teóricas ensayadas por Duff y las alternativas de Zedner, Yaffe (...) y Chehtman. El debate, así planteado, parece dirimirse entre fundar la respuesta punitiva en la comunidad entre personas ciudadanas dejando sin orientación normativa a las diversas formas de castigo de las no-ciudadanas o renunciar a una justificación relacional del castigo para todos. Para escapar del dilema, planteo que quienes entiendan que la legitimidad del castigo debe buscarse en algún tipo de relación política preexistente deben redefinir esa relación para que pueda dar cuenta de los diferentes vínculos que nos unen a quienes cohabitamos un mismo territorio político. En lugar de descartar a la membresía política como justificación del reproche penal, sostengo que se puede renunciar a que esa membresía constituya la única justificación posible. Finalmente propongo dos pautas para que una teoría de la justificación del castigo pueda dar cuenta de los diferentes criterios de atribución de la ley penal: el nivel de dependencia y el nivel de participación. (shrink)

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty (...) theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer. (shrink)