Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of the latter, (...) two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (shrink)

It has often been suggested that people’s ordinary capacities for understanding the world make use of much the same methods one might find in a formal scientific investigation. A series of recent experimental results offer a challenge to this widely-held view, suggesting that people’s moral judgments can actually influence the intuitions they hold both in folk psychology and in causal cognition. The present target article distinguishes two basic approaches to explaining such effects. One approach would be to say that the (...) relevant competencies are entirely non-moral but that some additional factor (conversational pragmatics, performance error, etc.) then interferes and allows people’s moral judgments to affect their intuitions. Another approach would be to say that moral considerations truly do figure in workings of the competencies themselves. It is argued that the data available now favor the second of these approaches over the first. (shrink)

The debate on alternative punishments appears to be stagnating. The impasse may be overcome if we consider humans from a different philosophical perspective. If we answer differently the question of who we are punishing, we open new possibilities regarding the question of how we punish. In particular, by applying the extended mind thesis we can arrive at interesting outcomes and reopen the debate on alternative punishments. According to this theory, external artifacts—such as smartphones—can be considered part of our minds. In (...) this article, I defend the thesis that restricting access to personal technologies that are a part of one's self should be considered a form of punishment. Thus, a human who is considered from an extended perspective can be punished in a new way. (shrink)

We know what one dualist account of human action looks like, because Descartes gave us one. I want to explore the extent ot which presnet-day accounts of physical action are vulnerable to the charges that may be made against Descartes's dualist account. I once put forward an account of human action, and I have always maintained that my view about the basic shape of a correct ‘theory of aciton’ can be combined with a thoroughgoing opposition to dualism. But the possibility (...) of the combination has been doubted and it will remain doubtful until we have a better understanding of what makes an account objectionably dualistic. In this paper, I hope to deflect some of the criticims aimed what I shall call my account, and to show that when they are turned onto their proper path their actual target is some physicalist accounts. (shrink)

Criminal liability for acts committed by AI systems has recently become a hot legal topic. This paper includes three different contributions. The first contribution is an analysis of the extent to which an AI system can satisfy the requirements for criminal liability: accomplishing an actus reus, having the corresponding mens rea, possessing the cognitive capacities needed for responsibility. The second contribution is a discussion of criminal activity accomplished by an AI entity, with reference to a recent case involving an online (...) bot, the Random Darknet Shopper. This discussion will provide the context for the analysis of commonalities and differences between criminal activities by humans and by artificial systems. The third contribution concerns the evaluation of different ways of addressing criminal activities by AI systems in a regulatory perspective. (shrink)

The doctrine of transferred intent (or transferred “malice” in England) generally provides that if A attempts to harm B but, because of bad aim, misses and accidentally causes the same harm to befall C, A’s harmful intent vis-à-vis B is transferred to C, thus rendering A guilty of intentionally harming C. Commentators acknowledge the doctrine to be a legal fiction, but they differ regarding whether the fiction produces just results, some believing it does, others believing that A is guilty at (...) most of attempting to harm B rather than intentionally harming C. Commentators who agree that the fiction produces just results nevertheless differ regarding whether the fiction should be retained or whether A’s intent to harm “a” person, in this case, B, is the only intent that signifies for crimes of intentional harm, regardless of whom A eventually harms. Doug Husak sought to achieve reflective equilibrium between intuition and theory regarding bad-aim cases by proposing in 1996 that A be punished for attempting to harm B (rather than for harming C) but sentenced as if he had harmed B. I once believed that Husak was correct. But I now have doubts, in part because Husak, along with others, cannot explain why the strength of people’s intuitions regarding A’s responsibility in bad-aim cases depends upon (1) C’s being a reasonably foreseeable victim, and (2) C’s being harmed by the same threat of force that A initially unleashed against B. I argue that one cannot achieve reflective equilibrium in bad-aim cases without inquiring into why resulting harm matters in criminal law, and that when one does, one discovers that just as people’s intuitions regarding whether intentional harms are proximate depend upon how resulting harms occur, so, too, people’s intuitions regarding whether an actor is guilty of intentional harm depend upon how resulting harm comes about. (shrink)

Knobe's laudable conclusion that we make sense of our social world based on moral considerations requires a development account of human thought and a theoretical framework. We outline a view that such a moral framework must be rooted in social interaction.

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that conscious awareness (...) is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

It has long been thought that by using morphine to alleviate the pain of a dying patient, a doctor runs the risk of causing his death. In all countries this kind of killing is explicitly or silently permitted by the law. That permission is usually explained by appealing to the doctrine of double effect: If the use of morphine shortens life, that is only an unintended side effect. The paper evaluates this view, finding it flawed beyond repair and proposing an (...) alternative explanation. It is not the intention of the doctor that counts, but the availability of an “objective” palliative justification. (shrink)

Intentions have been a central subject of research since contemporary philosophy of action emerged in the middle of the twentieth century. For almost that entire period, the approach has been to treat the study of intentions as separate from the study of morality. This essay offers a brief overview of that history and then suggests some ways forward, as exemplified by the essays collected in this volume.

Two components of lay observers’ calculus of moral judgment are proximal intent (the actor’s mind is focused on performing the action) and distal intent (the actor’s mind is focused on the broader goal). What causes observers to prioritize one form of intent over the other? The authors observed whether construal level (Studies 1-2) and beliefs about free will (Studies 3-4) would influence participants’ sensitivity to the actor’s proximal versus distal intent. In four studies, participants read scenarios in which the actor’s (...) proximal and distal intent were independently manipulated. In Study 1, when only distal intent was present in the actor’s mind, participants rated the psychologically distant actor more responsible than the psychologically near actor. In Study 2, when only distal intent was in the actor’s mind, participants with a chronic high level of action identification rated the actor more responsible than did those with a low level of action identification. In both studies, when only proximal intent was in the actor’s mind, construal level did not predict judgments of responsibility. In Study 3, when only proximal intent was present in the actor’s mind, the more participants believed in free will, the more they rated the actor responsible. When only distal intent was in the actor’s mind, free will belief did not influence ratings of responsibility. In Study 4, the same pattern emerged when free will / determinism beliefs were manipulated and the actor performed a positive (life-saving) act. The authors discuss how these results shed new light on the literatures on moral reasoning and psycho-legal theory. (shrink)

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does...

In criminal law, foresight betrays a guilty mind as much as intent does: both reveal that the agent is not properly motivated to avoid an illegal state of affairs. This commonality warrants our judgment that the state is brought about intentionally, even when unintended. In contrast to Knobe, I thus retain the idea that acting intentionally is acting with a certain frame of mind.

:Freedom is often analysed in terms of the absence of intentionally imposed constraints. I defend the alternative view on which the relevant constraints are those for which some agent can be held morally responsible. I argue that this best captures the relation between freedom and respect. Berlin correctly points out that intentional restrictions exhibit ill will and hence are disrespectful. However, the same holds, I argue, for restrictions that are due to indifference. Berlin also observed that it would be counterintuitive (...) if an agent could increase her freedom by changing her preferences. I criticize the argument that Dowding and Van Hees present according to which this observation counts in favour of explicating freedom in terms of intentionality. (shrink)

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

This paper investigates the relations between the concepts of moral harm and moral responsibility, arguing for a circularity between the two. On this basis the conceptual soundness of descriptivism, on which consequentialist and non-consequentialist arguments are often grounded, is questioned. In the last section a certain version of ascriptivism is defended: The circularity is relevant in order to understand how a restricted version of ascriptivism may in fact be well founded.