Desde los trabajos de Catriona McKinnon se ha empezado a hablar del crimen de postericidio. Este crimen es entendido como aquella conducta intencional o imprudente capaz de provocar la casi extinción de la humanidad. En este trabajo mostraré por qué el principio de daño (intergeneracional e internacional) puede aportar buenas razones en favor de la justificación moral de la criminalización del postericidio. Argumentaré que ni el problema de la no-identidad ni el de los daños por acumulación hablan en contra de (...) considerar que la criminalización del postericidio está moralmente justificada. -/- ---------------------------------------------------------------------------------------------------- -------------------------- -/- The discussion on the crime of postericide has acquired a considerable boost since Catriona McKinnon’s writings. The crime of postericide is understood as an intentional or reckless conduct fit to bring about the near extinction of humanity. In this paper, I will show why the harm principle (intergenerational and international) is able to provide good reasons in favour of the moral justification of the criminalization of the postericide. I will argue that neither the non-identity problem nor the problem of the accumulative harms speak against considering the criminalization of the postericide morally justifiable. (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained (...) by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

This article considers the proportionality requirement of the self-defense justification. It first lays bare the assumptions and the logic—and often illogic—underlying very strict accounts of the proportionality requirement. It argues that accounts that try to rule out lethal self-defense against threats to property or against threats of minor assault by an appeal to the supreme value of life have counter-intuitive implications and are untenable. Furthermore, it provides arguments demonstrating that there is not necessarily a right not to be killed in (...) defense against theft or minor assaults. While there is a general moral right of self-defense and a general right to life, the scope of these rights depends on certain social facts that—even within a liberal framework—can differ from one society to another. Moreover, the proportionality of self-defense does not depend on the rights of the aggressor alone, but also on a precautionary rule, shaped by the balance of interests of the society in question and aimed at protecting innocent people and other social interests. This rule can protect an aggressor even in cases where he does not have the right to such protection. (shrink)

In this paper we explore the relationship between forgiving and punishment. We set out a number of arguments for the claim that if one forgives a wrongdoer, one should not punish her. We then argue that none of these arguments is persuasive. We conclude by reflecting on the possibility of institutional forgiveness in the criminal justice setting and on the differences between forgiveness and acts of mercy.

Aeon Skoble and other libertarians fail to show that libertarianism supports anarchism. The focus on whether persons would rationally consent to the state misses the issue. Instead, the truth of anarchism depends on whether all or most persons actually have consented to the state. Tacit consent to the acquisition of property rights in previously unowned things provides us with a model as to how valid consent might occur. However, whether persons actually have done so is an empirical issue.

Many just war theorists (call them traditionalists) claim that just as people have a right to personal self-defense, so nations have a right to national-defense against an aggressive military invasion. David Rodin claims that the traditionalist is unable to justify most defensive wars against aggression. For most aggressive states only commit conditional aggression in that they threaten to kill or maim the citizens of the nation they are invading only if those citizens resist the occupation. Most wars, then, claimed to (...) be justified by the traditionalist fail to meet the proportionality criterion. Thus, a just war, for Rodin, is best conceived of as a punitive war of law enforcement, not as a war of national-defense. I argue that Rodin does not have a case against the traditionalist. If national-defense is a disproportionate response to conditional aggression, then punitive war is a disproportionate response as well. Furthermore, the belief that punitive war is a proportionate response to conditional aggression underscores the traditionalist’s view that self-determination, cultural identity and the like are of sufficient value to defend by means of lethal force. I end the paper by very briefly sketching an account, different from that of Rodin’s, of how individual nations can be justified in waging wars of law enforcement. (shrink)

John Locke (1632—1704) and Georges Sorel (1859—1922) are commonly understood as representing opposed positions vis-a-vis revolution — with Locke representing the liberal distinction between violence and politics versus Sorel's rejection of politics in its pacified liberal sense. This interpretation is shown by a close reading of their works to be misleading. Both draw a necessary link between revolution and violence, and both mediate this link through the concept of `war'. They both depoliticize revolution, as for both of them `war' is (...) understood as extra-political. The revolutions of 1989 emphasize what actually is true of previous revolutions: they cannot coherently be thought of as extra-political. (shrink)

What can international courts say when criminals ask, by what right do you try me? Some authors attempt to draw a connection between humanity's responsibility to call offenders to account and the harm humanity has suffered as a consequence of the offender's crimes. Others have argued that there need not be a special connection between those calling to account and the offenders, as the right to punish offenders is a general right each and every person has. Both lines of argument (...) are ultimately unconvincing. Instead, I argue for a modified version of the second position which proposes a democratically based theory of responsibility for punishment held by international criminal law institutions. (shrink)

I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an innocent (...) aggressor, forfeits rights against proportionate defense, including unnecessary defense (as well as rights against the infliction of proportionate non-defensive harm). Yet, I demonstrate that this stance need not lead to the abandonment of the necessity condition of justified self-defense in the case of a culpable aggressor. Since justification and liability are not the same, there is no reason to assume that the necessity condition of justified self-defense must be explained under an appeal to the aggressor’s rights. Parallel arguments apply to the other limiting conditions of permissible self-defense as well as to the limiting conditions of permissible punishment. Accordingly, I also sketch alternative explanations of the proportionality requirement and the subjective element. All these alternative explanations appeal to a principle of precaution: instead of explaining the unjustifiability of unnecessarily harming a culpable attacker or wrongdoer by an appeal to the rights of the attacker or wrongdoer himself, one can also, and better, explain it by a requirement to take reasonable precautions against violating the rights of innocent people. (shrink)

A person deserves a punishment if and only if he did a culpable wrongdoing and in virtue of this it is other-things-being intrinsically good that he receive punishment and if he were to receive that punishment then it would be through a non-deviant causal chain that includes the culpable wrongdoing. The wrongdoing may be institutional or pre-institutional depending on whether the moral right that the wrongdoer trespasses upon is dependent on a political institution’s goal. Desert in general, and punitive desert (...) in particular, has a ground for which the agent is blameworthy or praiseworthy and it does not itself general a duty on anyone’s behalf. Both features make desert a different type of moral entity than a moral right. In addition, the two stand in a different relation to autonomy: rights protect a sphere in which autonomy may be exercises whereas desert, including punitive desert, provides a guide to the exercise of autonomy. They thus have different connections to one of the most important value-creating features of a person. This difference between desert and moral rights indicates the need for a separate analysis of each in the context of punishment. (shrink)

In this paper, I consider the question of whether crime victims can be said to have a moral right to see their victimizers punished that could explain why they often feel wronged or cheated when the state fails to punish offenders. In the first part, I explain what I mean by a “right to punishment” and what it is for such a right to “explain” the frustrated crime victim’s reaction. In the second part, I distinguish such a right from a (...) Lockean-style right to punish, which is also shown incapable of providing the needed explanation. In the third part I argue that it is difficult to identify any benefit such that the right to punishment could plausibly be understood as a right to that benefit. I discuss two main candidates here: the vaguely Hegelian idea that punishment is itself some sort of restitution for the wrong done to the victim; and the idea, due to Victor Tadros, that punishment is a form of compensation for wrongdoing by contributing indirectly to protecting victims from future harm. In the final section, I suggest instead that the frustrated crime victim’s reaction, when justified, is best explained, not by the violation of any right to punishment, but rather by the state’s failure to treat the victim as an equal. (shrink)

La teoría de la propiedad de Locke tiene como escenario el estado de naturaleza, cuyo correlato empírico es la colonización inglesa de América. Este es el supuesto que permite articular la apelación a la teología para fundar la propiedad privada de modo unilateral y en cualquier lugar del mundo; el desplazamiento del criterio de necesidad a la teoría del valor para justificarla; así como el supuesto de abundancia que la hace posible sin requerir pacto político ni consenso social. En este (...) sentido, si su teoría de la propiedad resultó esencial para legitimar el liberalismo que moldeó América desde la colonización inglesa y la Constitución norteamericana, el hecho de que América sea el ejemplo para su teórico más temprano y destacado, permite comprender mejor el carácter esencial de la relación entre liberalismo y colonialismo. Locke's theory of property appears in the context of the state of nature, whose empirical correlate is the English colonization of America. This is the basis upon which three elements can be articulated: the appeal to theology in order to found unilaterally private property anywhere in the world; the change from the criterion of necessity to the theory of value to justify private property; and the assumption of abundance which makes it possible without having recourse to political pact or social consensus. In this sense, if Locke's theory of property has come to be essential to legitimize the liberalism which modelled America since the English colonization and the American constitution, the fact that America is the example for its earliest and most distinguished theorist, allows to a better understanding of the essential nature of the relationship between liberalism and colonialism. (shrink)

There are puzzle cases that forfeiture theory has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical so it is impossible for one to have the right if the other does not. (...) The Problem of Symmetrical Attackers is a problem for non-consequentialism because the most plausible non-consequentialist theories assume that people have rights and can lose them by forfeiting them or waiving them. This article considers whether consequentialism can get around this problem. (shrink)