I begin by discussing the ways in which a would‐be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her (to call her to account for her wrongdoing). This provides the basis for an examination of a particular kind of ‘bar to trial’ in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of the (...) state or its officials. The examination of this often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic. (shrink)

Journal of Political Philosophy, EarlyView.

This paper discusses differences between two major schools in philosophy of criminal law, retributivism and consequentialism, with regard to the risk of punishing the innocent. As it is argued, the main point of departure between these two camps in this respect lies in their attitude towards the high evidentiary threshold in a criminal trial: while retributivism seems to strongly support setting this standard high, consequentialists may find it desirable to relax it in some cases. This discussion is set in the (...) context of proxy criminalization, i.e. a situation, in which some suspicious behaviour is criminalized. Since proxy criminalization may be understood as an effective lowering of the evidentiary threshold, its employment is justifiable from the consequentialist perspective, while being highly problematic for the retributivists. (shrink)

While the potential of restorative justice is increasingly being recognized worldwide, its relation to criminal justice is a matter of debate. This chapter opts for a “consequential” approach to restorative justice. In the longer term, this view pursues the modification of the punitive premise in criminal justice into a reparative/restorative premise. The chapter explains the social-ethical and instrumental reasons for this option and describes the emerging contours of a restorative criminal justice system. It explores the relation of restorative justice to (...) punishment, and it seeks grounds for constructing appropriate legal safeguards by considering restorative justice as a form of “inversed, constructive retributivism.” Finally, the process toward more restorative justice is positioned as a step in the civilization process. (shrink)