Jock Young charts the move of the last 30 years from an inclusive society of stability and homogeneity to an exclusive society of change and division - where blame is apportioned to vulnerable sections of the community.

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by state (...) policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)

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)

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean (...) approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment. (shrink)

The doyen of living English philosophers, by these reflections, took hold of and changed the outlook of a good many other philosophers, if not quite enough. He did so, essentially, by assuming that talk of freedom and responsibility is talk not of facts or truths, in a certain sense, but of our attitudes. His more explicit concern was to look again at the question of whether determinism and freedom are consistent with one another -- by shifting attention to certain personal (...) rather than moral attitudes, first of all gratitude and resentment. In the end, he arrived at a kind of Compatibilist or, as he says, Optimist conclusion. That is no doubt a recommendation but not the largest recommendation of this splendidly rich piece of philosophy. (shrink)

This book provides a systematic, philosophically informed account of criminal responsibility. It begins by providing a general account of criminal responsibility based on the relationship between the action that the defendent has performed and their character. It then moves on to reconsider some of the central doctrines of criminal responsibility in the light of that account.

The present debate in legal theory is dominated by an unfruitful schism. On the one hand, analytical theories are concerned with the positivity of law, running the risk of missing the law's relation to society. On the other hand, sociological approaches analyze all sorts of social interactions of law, but have developed no conceptual tools to do justice to the autonomy of law. The theory of autopoiesis offers law a chance of getting round the falsely posed alternative between an autonomous (...) rule system or a socially conditioned decision-making process. It is a theory of law that sees the law's autonomy in the self-reproduction of a communication network and understands its relation to society as interference with other autonomous communication networks. Building on the ideas of Humberto Maturana, Heinz von Foerster and Niklas Luhmann, Gunther Teubner uses the concepts of self-organization and autopoiesis to develop a concept of law as a hypercyclically closed social system. This book will stand as a landmark in legal theory and become a standard point of departure in the sociology of law. (shrink)

In this article, I try to do two things. First I analyse critically the suggestion that the principles of criminal culpability can be explained by reference to a single, all-encompassing concept, such as “defiance of the law”. I then go on to explain the foundations of criminal culpability by reference to three interlocking theories — the capacity theory, the character theory, and the agency theory. I conclude that even these three theories may not be sufficient to explain the complex structure (...) of culpability, which is shaped as much by shared cultural understanding as by moral theory. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature of the law's demands, (...) and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

This book examines the relationship between legal tradition and national identity to offer a critical and historical perspective on the study of criminal law. It develops a radically different approach to questions of responsibility and subjectivity, and was among the first studies to combine appreciation of the institutional and historical context in which criminal law is practised with a critical understanding of the law itself. Applying contemporary social theory to the particular case of nineteenth-century Scottish law, Lindsay Farmer is able (...) to develop a critique of modern criminal law theory in general. He traces the development of the modern characteristics of criminal law and legal order, tracing the relationship between legal practice and national culture, and showing how contemporary criminal law theory fundamentally misrepresents the character of modern criminal justice. (shrink)

Why would the work of the 17th century philosopher Benedict de Spinoza concern us today? How can Spinoza shed any light on contemporary thought? In this intriguing book, Moira Gatens and Genevieve Lloyd show us that in spite of or rather because of Spinoza's apparent strangeness, his philosophy can be a rich resource for cultural self-understanding in the present. _Collective Imaginings_ draws on recent re-assessments of the philosophy of Spinoza to develop new ways of conceptualising issues of freedom and difference. (...) This ground-breaking study will be invaluable reading to anyone wishing to gain a fresh perspective on Spinoza's thought. (shrink)