In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she (...) could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. (shrink)

There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a ‘character’ based approach in criminal law is necessarily illiberal and violates the state’s commitment to political (...) neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd’s characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes. (shrink)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal dialogue the relationship (...) between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (shrink)

This is a draft of my chapter on Negligence for the forthcoming Oxford Handbook in Moral Psychology. It discusses philosophical, psychological, and legal approaches to the attribution of culpability in cases of negligent wrongdoing.

This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the “evaluative judgements” expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects , and are not mere impulses which bypass cognition, it suggests the following criticisms of their analysis. First, the concept of an emotional “evaluative judgement” tends to elide the distinction between “judgements” that are (...) merely the sense of an emotion, and do not have the character of acts, and deliberative emotional judgements that do resemble acts and so properly fall within the corrective scope of the law. Second, intentional emotions are empowered by pre–intentional psychological resources which are less amenable than intentional states to the agent's conscious supervision: The traditional recognition of “infirmity” in mitigation of crimes uncharacteristic of the criminal's overall conduct towards others is justified by the unpredictable action of these pre–intentional elements and can survive the abandonment of the mechanistic conception of emotion. (shrink)

This article argues—against the present compatibilist orthodoxy in the philosophy of criminal law—for the contemporary relevance of a kind of critique of criminal law known as the ‘determinist challenge’, through a reconstruction of Theodor Adorno’s thought on freedom and determinism. The article begins by considering traditional forms of the determinist challenge, which expressed a widespread intuition that it is irrational or inappropriate for the criminal law to hold people responsible for actions that are causally determined by social and psychological forces (...) in such a way that they cannot be said to have acted freely. Yet as traditionally presented it was possible for its opponents to interpret this challenge as an incompatibilist position within the traditional free will/determinism debate, and to present compatibilist arguments against it—in particular, that the determinist challenge is unmotivated and has implausible implications. It is argued that these compatibilist objections hold only on a certain interpretation of the determinist challenge, but that this interpretation is not the only one available. Adorno’s distinctive position on freedom and determinism is presented as an alternative version of the challenge, which cannot be assimilated to the terms of the traditional compatibilist/incompatibilist disputes. This novel, ‘metacritical’ version of the determinist challenge is essentially a social–historical, not metaphysical, thesis about the moral significance of the freedom-undermining effects of modern social forms. As such, it is argued, it is invulnerable to the usual compatibilist objections, and presents a serious challenge to our criminal legal institutions. (shrink)

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain (...) aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance. (shrink)

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)

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)

The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. The (...) law has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury is present. (shrink)

This paper explores the following question: if, as John Rawls famously suggests, justice is the first virtue of social institutions, how are we to understand the institution of contract law? On the one hand, many writers take the view that the rules of contracts are merely a tool for bringing about distributive justice; on the other hand, some libertarian writers contend that the rules of contract leave no space for any idea of distributive justice. In this paper, I propose an (...) alternative account. I situate contract law in terms of what John Rawls calls “the social division of responsibility”: society as a whole has to provide individuals with an adequate share of opportunities and resources that they need in order to set and pursue their own conception of the good. Once individuals have those fair shares, citizens have to take responsibility for how their own lives go. An important way that people may pursue their plans is by entering into arrangements with others. This requires a system of contract rules. I argue that justice requires that we understand contract rules in terms of the idea of fair terms of interaction – that is, terms that would be accepted by reasonable persons moved by a desire for a social world in which they, as free and equal, can cooperate with others on terms they accept. The underlying idea is that of reciprocity, that is, the idea that individuals should not set the terms of their interactions with others unilaterally. Those fair terms of interaction are reasonable terms. Thus, in this paper, I claim that contractual interactions should be approached from the perspective of the reasonable person. My aim is to explain the formation of a contract, the legal response to a breach, and other issues that come up with contractual interactions from that perspective. (shrink)

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts...

The intuition holding that an organized crime leader should be punished more severely than a subordinate who directly commits an offence is commonly reflected in legal literature. However, positing a direct relationship between the severity of punishment and the level of seniority within an organizational hierarchy represents a departure from a more general idea found in much of the substantive criminal law writings: that the severity of punishment increases the closer the proximity to the physical commission of the offence. This (...) paper presents an analysis of the said intuition and attempts to ascertain its roots. Rejecting both retribution and deterrence theory as valid explanations, it will be inferred that the imposition of harsher punishment on organized crime leaders is properly based on the multiplicity of offences for which they are responsible, and not the nature of their involvement in any specific offence. (shrink)

As a normative ethics theory, virtue ethics theory can present a criterion for criminalization. The revival of this theory brought about a great new change in new ethics philosophy in the second half of the 20th century. Its effects on criminalization are just like the two sides of a coin. On the one hand, it has the capacity of promoting ethics to reach its climax and even act as a permit for criminal intervention in the internal qualities of the individuals (...) and on the other hand, it can decriminalize most of the vicious actions in order to make citizens virtuous.In the field of the philosophy of the law of virtue, the theory of the ethics of virtue is used for the philosophical justification of criminalization. Therefore, in order to present a virtuous criminal theory, special attention is paid to moral vices. In the theory of virtuous criminalism, we are faced with two main axes: one, flourishing, and the second, vice. The presentation of a legislative theory in the philosophy of virtue-based law takes into account human flourishing. Proponents of liberalism, on the other hand, argue that criminalizing moral depravity violates privacy; while the problem is not simple. For this reason, the criminalization of vicious behavior faces challenges including the threat of self-ownership and the justification of these behaviors from the perspective of the principle of harm. The main question now is, to what extent is the criminalization of moral vices in the context of the theory of self-government? One might also ask how virtuous criminal theory can be justified by a reading of the principle of harm. The present paper has achieved the following approach with a descriptive-analytical method: The criminalization of some moral vices violates the right of citizens to self-government. Therefore, criminalizing these behaviors will not be justified. On the other hand, from the perspective of the theory of virtuous criminalism, moral vice is not a sufficient and even necessary condition for criminalization. For this reason, assuming that the criminalization of a vice is justified on the basis of a reading of the principle of harm, it can not necessarily be claimed that the application of criminal law against this behavior is effective. In addition, the purpose of this study is to explain the limits and challenges of the theory of virtuous criminalism in the context of the theory of self-government and the principle of harm. In addition, in this article, readers are introduced to the concerns of liberals. And they will realize that criminalization in the context of virtue-based philosophy of law does not necessarily violate privacy, that is, we will not face maximum criminalization. In addition to the analysis of the nature of virtue ethics, the present thesis dissertation reviews argumentative methods of virtuous criminalization in the context of virtue-oriented criminal law jurisprudence and criticizes hurdles and methods of creating a liberal approach. (shrink)

Legal theorists commonly employ a distinction between justification defenses and excuse defenses, but there are significant theoretical disagreements about the nature of the distinction as well as about what the distinction entails. This dissertation is concerned with finding the best way to describe the distinction between the moral concepts of justification and excuse that underlie the concepts employed by legal theorists. Chapter 1 begins by examining moral defenses in general, with emphasis on their purpose, nature, function, and epistemology. Chapter 2 (...) critically examines many of the traditional theoretical assumptions made about justification and excuse in the literature with the goal of winnowing them down to an uncontroversial core that can provide the foundation for a fuller, more specific account. Chapter 3 examines the ordinary language meaning of the words "justification" and "excuse" in order to identify any analytic constraints on what a correct theoretical account of justification and excuse may legitimately include. Finally, Chapter 4 offers and defends a reductive theory of justification and excuse which I call "the praise/blame theory." This theory identifies justified acts with those prima facie wrongful acts for which the actor is morally praiseworthy and excused acts with those prima facie wrongful acts for which the actor is merely not to blame. This simple account is consistent with the logical form of moral defenses, requires minimal elaboration on the terms' ordinary language content, avoids the conceptual mistakes that plague more traditional theories, and has the potential help resolve nagging theoretical issues in related fields. (shrink)

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if (...) we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity. (shrink)