Should states be held responsible and punished for violations of international law? This article argues that they can and should be.

Reprinted 1999 by The Lawbook Exchange, Ltd. LCCN 98-32334. ISBN 1-886363-74-9. Cloth. $95. * Reprint of the first edition.

v. 1. Editorial introduction -- v. 2. The English and Latin texts (i) -- v. 3. The English and Latin texts (ii).

It is commonly understood that in its focus on rights and obligations law is centrally concerned with organising responsibility. In defining how obligations are created, in contract or property law, say, or imposed, as in tort, public, or criminal law, law and legal institutions are usually seen as society’s key mode of asserting and defining the content and scope of responsibilities. This book takes the converse view: legal institutions are centrally involved in organising irresponsibility. Particularly with respect to the production (...) of large-scale harms – including extensive human rights violations, forms of colonialism, or environmental or nuclear devastation – and in opposition to conventional understandings of responsibility in law, morality and politics, the book provides a detailed analysis of the ways in which legal institutions – their practices, concepts, and categories – themselves operate as much to deflect responsibility for harms suffered as they do to acknowledge them. Drawing on a series of case studies from local, national, and global concerns the book analyses how law facilitates dispersals and disavowals of responsibility, and it shows how it does so in consistent and patterned ways. In assessing how this ‘organised irresponsibility’ operates, and what its consequences are for both legal analysis and society generally, a thoroughgoing re-evaluation of law’s methods, operation, and consequences is required. At stake is nothing less than a fundamental re-assessment of the role of modern law in the production and legitimation of human suffering. This innovative and interdisciplinary book provides a sustained challenge to conventional thinking about law and legal institutions. It will be of major interest to those working in law, political and legal theory, sociology and moral philosophy. (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)

Most people who write about punishment ask, Why may we punish the guilty? I want to ask, Why should the guilty put up with it? or, more specifically, To what extent does a person guilty of an offense have a duty to submit to punishment? ;This question forms the topic of the thesis. The work is divided into two parts, of three chapters each. In Part 1, I argue for the importance of the question. In Part 2, I try to (...) answer the question. ;In Chapter 1, I argue for the claim that the question of submission to punishment is in fact the central question of the theory of punishment. This being conceded, I argue in chapters 2 and 3 that we must consequently change our conception of punishment. We cannot define 'punishment' in the traditional way, as necessarily involving pain, suffering, or other sorts of disvalue ; rather, 'punishment' is to be defined by the justificatory connection between punishment and offense . ;In Chapter 4, I develop what I call the rectificatory theory of punishment. This theory views some punishments as required in order to maintain the equality of basic liberties: people who commit certain offenses thereby arrogate excess basic liberties, and must by way of punishment give up an equivalent body of liberties. In Chapter 5, I incorporate the rectificatory theory into a more general theory of punishment, a theory derived from John Rawls's version of the social contract. I argue there that punishment derives from the social contract in three distinct ways: by literal application, by reinterpretation, and by repudiation. Finally, in Chapter 6, I argue that this theory of punishment requires us to look at the contract in a certain way: the contract establishes a relationship of fraternity among the parties, not merely as a pleasant after-effect, but as something essential to the contract. (shrink)

This is a new revised version of Dr. Laslett's standard edition of Two Treatises. First published in 1960, and based on an analysis of the whole body of Locke's publications, writings, and papers. The Introduction and text have been revised to incorporate references to recent scholarship since the second edition and the bibliography has been updated.

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

The Metaphysics of Morals is Kant's major work in applied moral philosophy in which he deals with the basic principles of rights and of virtues. It comprises two parts: the 'Doctrine of Right', which deals with the rights which people have or can acquire, and the 'Doctrine of Virtue', which deals with the virtues they ought to acquire. Mary Gregor's translation, revised for publication in the Cambridge Texts in the History of Philosophy series, is the only complete translation of the (...) whole text, and includes extensive annotation on Kant's difficult and sometimes unfamiliar vocabulary. A new introduction by Roger Sullivan sets the work in its historical and philosophical context. This volume will be of wide interest to students of ethics and of legal and political philosophy. (shrink)

Consisting of two essays, this work by a Harvard professor offers his thoughts on the idea of a social contract regulating people's behavior toward one another.

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

In this article, I seek to make sense of the oft-invoked idea of 'public emergency' and of some of its (supposedly) radical moral implications. I challenge controversial claims by Tom Sorell, Michael Walzer, and Giorgio Agamben, and argue for a more discriminating understanding of the category and its moral force.

In this article, I seek to make sense of the oft-invoked idea of ‘public emergency’ and of some of its radical moral implications. I challenge controversial claims by Tom Sorell, Michael Walzer, and Giorgio Agamben, and argue for a more discriminating understanding of the category and its moral force.

In his recent book, Killing in War, Jeff McMahan sets out a number of conditions for a person to be liable to attack, provided the attack is used to avert an objectively unjust threat: (1) The threat, if realized, will wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to avert the threat, and (4) killing the person is a proportionate response to the threat. The present article focuses on McMahan's second (...) condition, which links liability with responsibility. McMahan's use of the responsibility criterion, the article contends, is too restrictive as an account of liability in general and an account of liability to be killed in particular. In order to defend this claim, the article disambiguates the concept of liability and explores its role in the philosophical analysis of the permission to cause harm to others. (shrink)

In this masterful work, both an illumination of Kant's thought and an important contribution to contemporary legal and political theory, Arthur Ripstein gives a comprehensive yet accessible account of Kant's political philosophy. In addition to providing a clear and coherent statement of the most misunderstood of Kant's ideas, Ripstein also shows that Kant's views remain conceptually powerful and morally appealing today.

Towards the end of her seminal work on the notion of representation Hanna Pitkin makes the following observation:At the end of the Second World War and during the Nuremberg trials there was much speculation about the war guilt of the German people. […] Many people might argue the responsibility of the German people even though a Nazi government was not representative. We might agree, however, that in the case of a representative government the responsibility would be more clear-cut.

Towards the end of her seminal work on the notion of representation Hanna Pitkin makes the following observation:At the end of the Second World War and during the Nuremberg trials there was much speculation about the war guilt of the German people. [...] Many people might argue the responsibility of the German people even though a Nazi government was not representative. We might agree, however, that in the case of a representative government the responsibility would be more clear-cut.2As Pitkin suggests (...) in this quotation, there is a common underlying assumption, both in academic writings and in popular perceptions of democracy, that a people living under a democratic government is ultimately responsible for that .. (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)

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given rise (...) to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction. (shrink)

Should we in the moral community accept the modern business corporation as one of us? French answers 'yes'. In this book, French investigates the metaphysical foundations of the application of our established moral principles to corporations as moral persons.

Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the most (...) fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)

Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment and the retributive attitudes are the necessary (...) expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and intriguing contribution to the debate over punishment and restorative justice. (shrink)

He that is to govern a whole nation, must read in himself, not this, or that particular man; but mankind. Leviathan is both a magnificent literary achievement and the greatest work of political philosophy in the English language. Permanently challenging, it has found new applications and new refutations in every generation. This new edition reproduces the first printed text, retaining the original punctuation but modernizing the spelling. It offers the most useful annotation available, an introduction that guides the reader through (...) the complexities of Hobbes's arguments, and a substantial index. (shrink)

The modern state claims supreme authority over the lives of all its citizens. Drawing together political philosophy, jurisprudence, and public choice theory, this book forces the reader to reconsider some basic assumptions about the authority of the state. Various popular and influential theories - conventionalism, contractarianism, and communitarianism - are assessed by the author and found to fail. Leslie Green argues that only the consent of the governed can justify the state's claims to authority. While he denies that there is (...) a general obligation to obey the law, he nonetheless rejects philosophical anarchism and defends civility - the willingness to tolerate some imperfection in institutions - as a political virtue. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both at the level of (...) the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

Are companies, churches, and states genuine agents? Or are they just collections of individuals that give a misleading impression of unity? This question is important, since the answer dictates how we should explain the behaviour of these entities and whether we should treat them as responsible and accountable on the model of individual agents. Group Agency offers a new approach to that question and is relevant, therefore, to a range of fields from philosophy to law, politics, and the social sciences. (...) Christian List and Philip Pettit argue that there really are group or corporate agents, over and above the individual agents who compose them, and that a proper approach to the social sciences, law, morality, and politics must take account of this fact. Unlike some earlier defences of group agency, their account is entirely unmysterious in character and, despite not being technically difficult, is grounded in cutting-edge work in social choice theory, economics, and philosophy. (shrink)

Thomas Hobbes took a new look at the ways in which society should function, and he ended up formulating the concept of political science. His crowning achievement, Leviathan, remains among the greatest works in the history of ideas. Written during a moment in English history when the political and social structures as well as methods of science were in flux and open to interpretation, Leviathan played an essential role in the development of the modern world. This edition of Hobbes' landmark (...) work is based on the original text. It incorporates the author's own corrections and retains the period spelling and punctuation, offering both flavorful authenticity and the utmost clarity of expression. (shrink)

THE ELEMENTARY MORAL DISTINCTION. The ultimate objects of moral assessment are people and their lives. I will call this the "elementary moral distinction." Many today seem to have lost sight of it. How often are we told that we should show respect for other people, only to discover that what we are actually being asked to show respect for is how those other people live? The equation of the two should be resisted. We do not always respect a person by (...) respecting how he lives. Sometimes quite the reverse. If someone is wasting his life but still deserves to be respected, the default way to show him the respect that he deserves is to do something that improves the way he is living- shake him out of it, block his path, change his incentives, shield him from further exploitation, and so forth. Sometimes, of course, there is no action open to us that will yield any improvement in how he lives, while on other occasions the only things we can do are disproportionate. In such cases we have to tolerate his continuing to live as badly he does. But toleration is one thing, and respect is quite another. Toleration is the moral virtue of those who appropriately curb their wish to eliminate what they do not respect. One cannot respect the way someone is living and tolerate it at the same time. (shrink)

Can the state, as opposed to its individual human members in their personal capacity, intelligibly seek to avoid blame for unjustified wrongdoing by invoking excuses (as opposed to justifications)? Insofar as it can, should such claims ever be given moral and legal recognition? While a number of theorists have denied it in passing, the question remains radically underexplored. -/- In this article (in its penultimate draft version), I seek to identify the main metaphysical and moral objections to state excuses, and (...) begin to investigate their strength. I work from the ecumenical assumption that general understandings of modern states as group moral agents proper or as mere fictional points of imputation for individual behaviour are both plausible, and that the question of state excuses should be asked in terms of both paradigms. Issues addressed include: the lack of state consciousness/affect, the nature and relevance of developmental and executive defects in group agents, the value of state interests and how interests relate to plausible claims of excuses, the shortfall of responsibility argument for group responsibility and its interface with state excuses, the symbolic and consequential (dis)value that state excuses may have, as well as concerns that states are entities that should live up to outstandingly high virtuous standards of impartiality and equanimity. -/- I conclude that even if the range of excuses available to states does not overlap neatly with excuses available to ordinary individuals, some excuses may still be morally available to states. More generally, I emphasize the need for a systematic discussion of group excuses writ large, and of their relationship with the wider question of when group entities may legitimately be singled out to bear adverse normative consequences for wrongdoing. (shrink)

This essay seeks first to (re)introduce Thomas Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist goals (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of (...) punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and utilitarian punishment theorists. (shrink)

This book focuses on the degree to which certain moral and legal doctrines are rooted in specific passions that are then institutionalised in the form of criminal law. A philosophical analysis is developed of the following questions: when, if ever, should hatred be overcome by sympathy or compassion? What are forgiveness and mercy and to what degree do they require - both conceptually and morally - the overcoming of certain passions and the motivation by other passions? If forgiveness and mercy (...) indeed are moral virtues, what role, if any, should they play in the law? (shrink)