Despite the theoretical uptake of ontological schemas that do not tie agency uniquely to individual humans, these new ontological geographies have had little penetration when it comes to designing institutions to prevent grave wrongs. Moreover, our persistent intuitions tie agency and responsibility to individuals within a figuration of blame. This article seeks to connect new materialist and actor network theories with the design of institutions that seek to prevent torture. It argues that although research into the causes and conditions of (...) torture points to the inadequacy of agent-centric explanations, the preponderance of prevention interventions emphasize the role of individual human agents. New materialist and ANT approaches could afford a rich theoretical underpinning for prevention approaches by addressing the broad ecology of causal factors. Drawing on Spinoza, the article considers the affective impediments to the uptake of understandings and their correlate practices that require moving beyond agent-centric explanations for grave wrongs. So long as anger, indignation and blame colonize the individual and broader institutional spheres, they will almost inevitably bind us to a particular type of inadequate causal analysis and make other types of preventative responses appear as derelictions of our duty to hold wrongdoers responsible for their acts. (shrink)

Retributivist accounts of punishment maintain that it is right to punish wrongdoers, even if the punishment has no future benefits. Research in experimental economics indicates that people are willing to pay to punish defectors. A complementary line of work in social psychology suggests that people think that it is right to punish wrongdoers. This work suggests that people are retributivists about punishment. However, all of the extant work contains an important potential confound. The target of the punishment is expected to (...) be aware of the punitive act. Thus, it's possible that people punish because they want to communicate something to the wrongdoer, e.g. disapproval, the presence of a norm, etc. In three studies, we examine whether people will punish even when the punishee will be ignorant. We find that people are no less likely to punish when the punishee will be ignorant. This finding emerges both in a survey study and in a monetized behavioural decision study. (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)

Freud justified his extensive theorizing about dreams by the observation that they were “the royal road” to something much more general: namely, our unconscious mental life. The current preoccupation with the theory of excuse in criminal law scholarship (including my own) can be given a similar justification, for the excuses are the royal road to theories of responsibility generally. The thought is that if we understand why we excuse in certain situations but not others, we will have also gained a (...) much more general insight into the nature of responsibility itself. Nowhere has this thought been more evident than in the century-old focus of criminal law theoreticians on the excuse of insanity, a focus that could not be justified by the importance of the excuse itself.In this paper I wish to isolate two theories of excuse, each of which instantiates its own distinctive theory of responsibility. One is what I shall call the choice theory of excuse, according to which one is excused for the doing of a wrongful action because and only because at the moment of such action's performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise. Such a choice theory of excuse instantiates a more general theory of responsibility, according to which we are responsible for wrongs we freely choose to do, and not responsible for wrongs we lacked the freedom (capacity and opportunity) to avoid doing. The second I shall call the character theory of excuse, according to which one is excused for the doing of a wrongful action because and only because such action is not determined by (or in some other way expressive of) those enduring attributes of ourselves we call our characters. (shrink)

This paper seeks to counter a currently popular account of criminal defences which holds that both excuses and justifications are characterised by the fact that the conduct of the actor is consistent with the standards to be expected of good citizens in the role inhabited by the actor. Its object is to restore due prominence to the role played by human frailty in core defences. The position will be advanced that a significant reason for this loss of prominence is that (...) insufficient attention has been paid to the filtering role played by crisis. For both excuses and justifications crisis marks the moral limits within which a workable system of norm enforcement can be achieved. In each case it ensures defences are socially validated, although the nature of the validation differs according to the nature of the defence. With defences of reasonable reaction crisis helps mark the parameters of reasonableness and ensures respect for the rule of law. Crisis may also deprive individuals of their susceptibility to conform their behaviour to rules. Its major constitutive role in this regard is to ensure that this susceptibility is rooted in the characteristics of human beings generally rather the specific characteristics of the actor. In this way it gives moral focus to the way excuses may intrude simply because the state cannot reasonably demand any better, at the same time providing a mechanism for distinguishing true excuses from exemptions or defences of impaired capacity. (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)

This article addresses the theoretical difficulty of justifying the use of penal coercion in circumstances of marked, unjustified social inequality. The intuitive belief behind the text is that in such a context—that of an indecent State—justifying penal coercion becomes very problematic, particularly when directed against the most disfavored members of society.

Should a person who cannot appreciate the moral significance of legal norms qualify as a blameworthy actor simply because he has the capacity to comply with them for non-moral reasons? Such a person may lack any empathy for other human beings and view moral norms as arbitrary restraints on his self-interested behavior: does he nevertheless deserve moral blame when he makes an instrumentally “rational choice” to breach a norm governing his action? Should our answers to these questions depend on whether (...) we believe that the actor is morally responsible for lacking these moral emotions and understandings? In short, must we concern ourselves with those aspects of the agent's character – his goals, desires, values, emotions, and perceptions of what courses of action are available to him – that motivate his rational choices? Or are questions about what motivates the actor to exercise his capacity for rational choice irrelevant to our judgments concerning his moral culpability for violating some governing norm? One way of thinking about such questions is to ask what attributes a person must possess to qualify as an appropriate addressee of moral norms and a suitable object of moral blame. Must a moral agent have the capacity to respond to moral norms as a reason for his choices? Must he also be able to control those aspects of his character that impair his capacity to make moral choices? Most legal theorists insist that moral agents do not need such capacities to be fairly blamed for violating the minimal moral restraints that the criminal law imposes on their self-interested acts. (shrink)

Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and obscuring caring practices. Offenders (...) may be partially silenced and excluded by mainstream criminal justice practices which limit interaction between offenders and practitioners. When we ignore significant harms, or silence and exclude, we treat others as passive non-subjects. This partially objectifies offenders, and is inconsistent with treatment as equals. Penal theories employing harm-centred and harm-normalizing definitions of punishment can provide few resources to help practitioners either avoid, or recognize and respond to, harms. Care ethics, by contrast, motivates the avoidance of harm, ongoing inclusive engagement, and respectful interaction with others. I argue that defining punishment without presupposing harm facilitates the identification of morally problematic harms, and recognition of caring practices. I offer a principled argument, and political and pragmatic supplementary arguments, for responding to offenders without intentional harm and with care. Principles drawn from care ethics can help to strengthen mainstream criminal practices by structuring decision-making and action. Bottom-up alternative criminal justice practices share some values with these proposed guiding principles, allowing a partial test of the principles. I consider examples of restorative justice practices, therapeutic jurisprudence, community justice and other problem-solving court practices, in addition to considering how well mainstream punishment practices measure up to these principles. My analysis illuminates the strengths and weaknesses of the principles, and how they might contribute to securing treatment as equals for offenders in mainstream practices. (shrink)

Retributivism so dominates criminal theory that lawyers, legal scholars and law students assert with complete confidence that criminal law is justified only in light of violations of another person’s rights. Yet the core tenet of retributivism views criminal law fundamentally through the lens of individual actors, rendering both offender and victim unrecognizably denuded from their social and civic context. Doing so means that retributivism is unable to explain even our most basic criminal law practices, such as why we punish recidivists (...) more than first time offenders or why “hate crimes” are of special concern. A republican view of criminal law brings our most natural intuitions back into focus by insisting that the core of criminal responsibility lies in the offender’s attack on the civic bonds that make living in a society as equals possible. By grounding our punishment practices in an Aristotelian republicanism that for so long was the unquestioned basis of mutual responsibility, we understand that hostility, as expressed in the offender’s “civic character,” matters to us all while still seeing our obligations to reintegrate both victim and offender into our shared civic project. (shrink)

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)