This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. -/- No one should be neutral in relation to cruelty. Eminently, cruelty in (...) criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of private and public actors. It is in this sense that cruelty is a problem of practical reason, one of action preoccupied with its legal or moral obligations, rational grounds, value commitments, and actual consequences. -/- However, the connection between conceptions of cruelty and the implications practical reason can draw from the correct application of a conception of cruelty to phenomena in the world remains too detached to be able to capture and explain people's actual experiences both of seeing cruelty in the world and of confronting the question of what to do about cruelty and how to address its cultural and institutional aspects. Something is missing. -/- What is missing is the integration of conceptions of cruelty and the practical reason implications of detecting cruelty in the world into normative models which operate as meaning matrixes for cognition, meaning, and action. This Article undertakes this explanatory task through an exercise of reconstructing seminal philosophical ideas about cruelty. The result is that the four conceptions of cruelty are placed within three distinct normative models, which ultimately render intelligible legal conceptions of cruelty and legal reactions to it. (shrink)

Belief-state ascription — determining what someone “knew,” “believed,” was “aware of,” etc. — is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology — falling under the banner of “Experimental Epistemology” — reveals how laypeople’s understandings of mens (...) rea concepts differ systematically from what scholars, courts, and perhaps legislators, have assumed. -/- As implemented, mens rea concepts are much more context-dependent and normatively evaluative than the conventional wisdom suggests, even assuming that jurors are following jury instructions to the letter. As a result, there is less difference between knowledge and recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean different things in different contexts, resulting in mens rea findings systematically responsive to aspects of the case traditionally considered irrelevant to the meaning of those terms. -/- This Article provides the first systematic account of the factors driving jurors’ ascriptions of the specific belief states criminal law invokes. After surveying mens rea jury instructions, introducing the Experimental Epistemology literature to the legal literature on mens rea, and examining the implications of that literature for criminal law, this Article considers ways to begin bridging the surprisingly large gap between mens rea theory and practice. (shrink)

‘Crime is a prohibited act from which results in more evil than good’ is how Jeremy Bentham described crime. ‘Crime is a serious anti-social action to which the State reacts consciously by inflicting pain’, is how W.A.Bonger describes crime. Morality and its lack thereof are related to crime. Morality is so closely interwoven with social conduct and immorality interwoven with criminal conduct that it is desirable to investigate this matter further and so this shorter version of a paper by (...) Sally Ramage is the vehicle by which to look further into this issue of moral crime which notion is based on accepted moral code and common sense. We need to urgently study moral crime if we are to arrest the current moral decline in society and restore integrity and trust to the human race. In this example we see that maturity does not mellow the human psyche as modern criminal law states. It was Sir Norwood East who stated that ‘acquisitiveness, aggressiveness and sexuality are often closely associated but the maturity which changes criminality is never going to be present until one is conscious of one’s own maturity by beginning to live in that consciousness’. Social conduct must be cultivated. Crucially, sociologists argue that social conduct may vary with time and place. However, the case of maturity is different when considering those in formative early life and also in declining periods of life. It must be cultivated. It does not happen automatically with age and some people can never change since their greed, selfishness and criminal inclinations remain steadfast. To these types, there is no resilience learnt because resilience is characteristic of the formative period of life when the disappointments of today are counterbalanced by the anticipations of tomorrow. (shrink)

The state has always authoritatively used criminal law to give effect to its policy of condemning acts either antisocial or unacceptable to the conscience of the law and society. The existence of criminal law is well justified on grounds of ‘social welfare’ or “reinforcement of those values most basic to proper social functioning”. This initiates or sustains the process of criminalization. The relativity of ‘social welfare’ makes law ‘dynamic’ as well as ‘varying’, vis-à-vis its ambit and scope. Current (...) scholarship is critical of what is referred to as the trend of overcriminalization or rapid increase in criminalizing of acts, as leading to ‘uncertainty’ in criminal law. The rationale for such a critique is that there are activities that need not be labeled as offences if they do not possess the potential to cause damage that criminal law seeks to protect. In light of the overcriminalization critique, this paper examines the criminalization of certain offences labeled as public welfare offences. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and (...) Criminal Law, Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: the psychological factors that motivate the individual’s behavior are environmentally determined and her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted. -/- To get to this conclusion, I will proceed in four (...) steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption ultimately because we sympathize with agents who lack responsibility for their actions. -/- Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former. -/- Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility. -/- Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299, I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge. (shrink)

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is being used to argue for wider recognition of the legal capacity of people with mental disabilities. This raises a question about the implications of the Convention for attributions of criminal responsibility. The present paper works towards an answer by analysing the relationship between legal capacity in relation to personal decisions and criminal acts. Its central argument is that because moral and political considerations play an essential (...) role in setting the relevant standards, legal capacity in the context of personal decisions and criminal acts should not be thought of as two sides of the same coin. The implications of particular moral or political norms are likely to be different in these two legal contexts, and this may justify asymmetries in the relevant standards for legal capacity. However, the analysis highlights a fundamental question about how much weight moral or political considerations should be given in setting these standards, and this is used to frame a challenge to those calling for significantly wider recognition of the legal capacity of people with mental disabilities on the basis of the Convention. (shrink)

One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy (...) Arpaly to criminal negligence. Although not interested in legal issues herself, Arpaly has a well-developed theory of moral agency that explains moral concern in terms of responsiveness to moral reasons. Introducing her work to the ongoing scholarly debate will be helpful for two reasons. First, while a definition of negligence in terms of moral concern is recognized as one proposed solution to the negligence–blameworthiness problem, authors promoting it have yet to give a systematic account of moral concern and its relation to blame. Borrowing Arpaly's account will help clarify the idea of moral concern so that both proponents and critics of a concern approach to negligence can have a better-defined debate. Second, her theory of blameworthiness is especially suited to defending the blameworthiness of negligent actions, because it does not have recourse to a special quality of choice or self-control that must be active to render conduct blameworthy. To make this second advantage clear, the article argues that reliance on choice or self-control problematizes blameworthiness for negligence. Those who wish to defend blameworthiness for negligent acts should base their work on an account of moral agency that does not rely on either choice or self-control to explain when an action is blameworthy. (shrink)

Ethics and responsibility would be a vexing or awesome topic that the contemporary citizen more likely wishes to avoid giving his or her views or opinions. That is perhaps because the society transforms rapidly and turns to become more diverse from the past decades. These concepts, on the other, comes not in the ancient or middle era classics, but from the near modern context in 18th England and French land. In dealing with the nature and relationship between the two concepts, (...) another notion of morality also comes into a comparative context. Morality, if often interchangeably used with the ethics, could be seen in some differences that ethics is a dimension one step removed from action. So we used to preach our dependents or subjects to conform their conduct to the kind of moral demand, "Exert your best to the interest of nations or society," "Practice a love and humiliation with brothers, sisters and neighbors," "Never be drunken while driving," "Do not commit an adultery or do not steal other’s property," and the likes. Law, then, would be a minimal of morality which prescribes a prohibited conduct and corresponding criminal sanctions proportionally with the gravity of culpability or social harms. Those concepts might share a common element in a great extent, but could be made distinguished in some of subtleties. (shrink)

The lie detector test has long been treated with suspicion by the law. Recently, several authors have called this suspicion into question. They argue that the lie detector test may have considerable forensic benefits, particularly if we move past the classic, false-positive prone, autonomic nervous system-based (ANS-based) control question test, to the more reliable, brain-based, concealed information test. These authors typically rely on a “comparative advantage” argument to make their case. According to this argument, we should not be so suspicious (...) of lie detection evidence if it has comparative advantages over the epistemic methods currently utilised by the legal system. In this article, I add to this growing support by making a novel comparative advantage argument in favour of brain-based lie detection evidence. The argument focuses on the P300 concealed information test (P300 CIT), which has several unique properties, and on the effect it may have on pre-trial bargaining in criminal cases rather than in-court evidence. The thesis is that P300 CIT could allow for innocent defendants to credibly signal their innocence to investigators and prosecutors during pre-trial bargaining more effectively than current proposed methods for doing the same thing. I defend this argument from a number of objections, and suggest that it opens up an interesting avenue in the ongoing debate about the merits of this technology. Although the argument is presented with the criminal law in mind, it could form part of a more general cumulative case in favour of this technology. (shrink)

The principle of nemo iudex in causa sua is central to John Locke’s social contract theory: the state is justified largely due to the human need for an impartial system of criminal justice. In contemporary Anglo-American legal practice, the value of impartiality in criminal justice is accepted uncritically. At the same time, advocates of restorative justice frequently make reference to a crime victim’s right to have his or her voice heard in the criminal justice process without regard (...) for impartiality as potentially being morally valuable. In this article, I challenge the central place of impartiality in criminal justice on the grounds that it leads to a setup ill-suited to moral psychology. Though restorative justice advocates are not principled in their implicit rejection of impartiality and the nemo iudex principle, their preferred method of criminal justice conduces to crime victims’ being good judges in their own case. (shrink)

The Law Society recently published a practice note titled 'Prosecutions of victims of trafficking'. This practice note comes many years after many lawyers had highlighted the problem and after the government machinery had chuntered into action and passed the UK Modern Slavery Act 2015 with explanatory notes and non-statutory guidelines for corporations. Since 2012 there had been issued warnings about the way defence lawyers, the Crown Prosecution Service and the UK police were dealing with trafficking and the Criminal Cases (...) Review Commission as far back as 2012 had note the severe failings by defence solicitors, prosecution and police, leading to many appeals and potential miscarriages of justice. Even in 2012 there were 946 known human trafficking victims, including 234 children. There was an attempt at a Human Trafficking Bill in 2010 which came to a halt and several reports including one by the Prison Reform Trust and Cambridge University Press, notwithstanding many books by notable academics for many years before today. This article examines the inadequacies of the Law Society practice note on defending victims and the jumble of high-ideals but short-sighted and impractical parts of the UK Modern Slavery Act 2015. (shrink)

The vision of legendary criminologist Cesare Lombroso to use scientific theories of individual causes of crime as a basis for screening and prevention programmes targeting individuals at risk for future criminal behaviour has resurfaced, following advances in genetics, neuroscience and psychiatric epidemiology. This article analyses this idea and maps its ethical implications from a public health ethical standpoint. Twenty-seven variants of the new Lombrosian vision of forensic screening and prevention are distinguished, and some scientific and technical limitations are noted. (...) Some lures, biases and structural factors, making the application of the Lombrosian idea likely in spite of weak evidence are pointed out and noted as a specific type of ethical aspect. Many classic and complex ethical challenges for health screening programmes are shown to apply to the identified variants and the choice between them, albeit with peculiar and often provoking variations. These variations are shown to actualize an underlying theoretical conundrum in need of further study, pertaining to the relationship between public health ethics and the ethics and values of criminal law policy. (shrink)

‘Attempted negligence’ is a category of criminal offense that many jurists and philosophers have law have deemed conceptually incoherent. In his Attempts: In the Philosophy of Action and the Criminal Law, Gideon Yaffe challenges this dismissal, anchoring his argument in cases of what he calls ‘mental self-management’ in which agents plan to bring about that they perform unintentional actions at a later time. He plausibly argues that mental self-management-type attempted negligence is possible. However, his account raises the question (...) whether such attempts can be successful: whether, in other words, attempts to perform unintentional actions at a later time could issue in actions that are, indeed, unintentional. Intuitively, at least, it would seem that we should answer in the affirmative. However, that answer poses problems for a plausible and widely-held account of intentional action. Al Mele, responding to Yaffe’s account, has pointed out this problem without, I think, providing a satisfactory resolution. I propose another way of vindicating the possibility of successful attempted negligence with small, if significant, revision to the standard view of intentional action. In these cases, I argue, agents fail to act intentionally because they render themselves, through their acts of self-management, unaware that they are successfully executing their intentions. Moreover, I argue that these agents’ intentions to bring about that they perform unintentional actions do not commit them to acting intentionally because of the nature of intentions to bring about actions. I offer an account of the intention to bring about that one A’s and defend it against some objections. (shrink)

For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it w it h an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his (...) critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as a whole and the methodology he uses to support it. It proposes that Tadros’ argumentative strategy can’t justify his rationale by virtue of (1) the extent and complexity of the moral reasoning he invokes, (2) the counter-intuitive results his theory produces in an array of specific cases, and (3) the superiority of a negative-retributivist account in which moral reasoning and intuitive judgments, and the principles and applications that f low from each, are coherent and mutually supportive. Victor Tadros responds to these arguments in an essay following this critique. (shrink)

Matthew Kramer has recently defended a novel justification for the death penalty, something he calls the purgative rationale. According to this rationale, the death penalty can be justifiably implemented if it is necessary in order to purge defilingly evil offenders from a moral community. Kramer claims that this rationale overcomes the problems associated with traditional rationales for the death penalty. Although Kramer is to be commended for carving out a novel niche in a well-worn dialectical space, I argue that his (...) rationale falls somewhat short of the mark. By his own lights, a successful justification of the death penalty must show that death is the minimally invasive, most humane means to some legitimate moral end. But even if we grant that his rationale picks out a legitimate moral end, there are at least three alternatives to death, either ignored or not fully considered by Kramer, which would seem to satisfy that end in a less invasive, more humane manner. (shrink)

This review is unashamedly from the perspective of English law because busy United Kingdom criminal law solicitors and barristers mostly wish to know what the law states, which case is a precedent case and whether the author has provided up-to-date legal information. This is because legal practitioners deal with real and urgent cases. The English Income Tax Act gained Royal Assent in 1799 the first government attempt to stop early tax avoidance. Later, tax avoidance schemes (which in English Law (...) were deemed a legitimate method of minimising one payment of taxation) became de rigueur all over the world and often involved creation of Deeds of Covenant and Trusts, notably Discretionary Trusts under civil law. Man’s ingenuity knows no bounds and this applies to man’s characteristic of criminality as it does to scholarship, enterprise and innovation. Despite protestations by some countries police agencies, contrary to the rise of crime, the fact is that that crime is increasing exponentially worldwide, but the number of people committing crime is not increasing because many crimes are repeated crimes committed by persons with habitual criminal behaviour, ie hard-core criminals. (shrink)

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have (...) been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty. (shrink)

Causes of crime are the subject of the etiology of criminal behavior, which is characterized by an interdisciplinary approach. There are many theories attempting to explain the determin ants of criminal behavior, a set of acts recognized by the criminal law, which emphasize different aspects of this phenomenon.

This paper covers the home-made bombing used at the 2013 Boston Marathon annual races even though we knew before the trial began that the verdict will have to be 'guilty' because the people of Boston demanded that verdict and received the first lap of the verdict on 8 April 2015. Neither beautiful technical rulings nor breaches of prosecution disclosure rules nor metadata queries nor tampered evidence would have held sway at this trial.

From 1965, the Swedish penal law does not require accountability as a condition for criminal responsibility. Instead, severely mentally disordered offenders are sentenced to forensic psychiatric care. The process that led to the present legislation had its origins in a critique of the concept of accountability that was first launched 50 years earlier by the founding father of Swedish forensic psychiatry, Olof Kinberg. The concept severe mental disorder is part of the Criminal Code as well as the Compulsory (...) Mental Act. The medical conditions for being sentenced to forensic psychiatric care are supposed to be the same as those for being admitted to involuntary psychiatric care. What these conditions are is not regulated in any law. For the guidance of the courts and others, there is a collection of examples in the government bill drafting the legislation in question. On the basis of these examples the content of the concept of severe mental disorder is chiselled out. However, the purposes of imposing penal law sanction and admitting someone to psychiatric care are not the same, and therefore the content of the concept severe mental disorder is bound to differ accordingly. Severe mental disorder is a legal concept that masks as a psychiatric one. In its applications in penal law, the court determines its content. But for the forensic psychiatrist it is more natural to interpret the term as a medical one. This creates a tension that has led to several controversies in recent criminal cases in Sweden. The best way to alleviate the situation is to discard the concept of severe mental disorder from criminal law. This will allow for a better separation of the roles of the psychiatrist and the court. (shrink)

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity of punishment (...) should be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (shrink)

This is the short version, in French translation by Anne Querrien, of the originally jointly authored paper: Müller, Vincent C., ‘Autonomous killer robots are probably good news’, in Ezio Di Nucci and Filippo Santoni de Sio, Drones and responsibility: Legal, philosophical and socio-technical perspectives on the use of remotely controlled weapons. - - - L’article qui suit présente un nouveau système d’armes fondé sur des robots qui risque d’être prochainement utilisé. À la différence des drones qui sont manoeuvrés à (...) distance mais comportent une part importante de discernement humain, il s’agit de machines programmées pour défendre, attaquer, ou tuer de manière autonome. Les auteurs, philosophes, préfèrent prévenir de leur prochaine diffusion et obtenir des Nations Unies leur régulation. Une campagne internationale propose plutôt leur interdiction. (shrink)

What is the research for in the society? We may imagine the professionals engaged in these activities, shall we say, university professors, researchers in the public and private institutions, and even the lay inventors at home or in the neighborhood. The research is related with some of knowledge or ideas, which, however, should be creative and original. It is the main function of those professionals, and can develop in dissemination of the findings produced by research. It frontiers the knowledge of (...) humans which enables a better view of world and generates the public welfare. The scholars are often those professionals who are required or in some cases, squeezed to produce an original contribution to the specific field of academy. As the society develops, we now require a scientific knowledge beyond the plain understanding of the nature and society. The scientific knowledge is qualified of some elements, i.e., evidence-based, universal frame to be applied, sense of understanding, pragmatic in comprehension or application, more persuasion on theory, paradigm, typologies, intersubjectivity, empirical relevance and so. It informs a philosophy of humans, makes them conscientious and knowledgeable, as well as enhances a professional performance for not only their field but also other disciplines. For example, the criminal justice system borrows the idea or information confirmed by other disciplines, psychology and sociology notably. What is the Durham rule in the excuse of culpability? The scope of rule could not enjoy a persuasion if not to be supported by the works of psychologists. The scientific knowledge perhaps could recourse its most salient dynamism in coupling with an economic exploitation. A cultivation of knowledge to serve the economic use and its industrialization reveals it’s competitive edge in the society. The kind of concepts, information age, e-technology, and intellectual property rights are leading the present time of narrative as we see routinely. Many new laws, and new concept of e-education or e-government, GMO products as well as the travel of universe in the near future also follow that the updated profile of scientific knowledge on the engineering and natural science contributed to expand our horizon of subsistence. With this crucial importance, the author attempts to file some thoughts on the research and society. (shrink)

In Gandhi's Printing Press, Isabel Hofmeyr introduces readers to the nuances of the newspaper in a far-flung colony in the age when mail and news traveled by ship and when readers were encouraged by Gandhi to read slowly and deeply. This article explores the ways in which Thoreau's concept of slow reading influenced Gandhi and Hofmeyr herself. She discusses the community that surrounded Gandhi and the role it played in supporting the newspaper. Yet, I argue, the role of women (...) of all races as well as Coloured and black South African men in leading, modeling, and shaping the movement of resistance to pass laws and other racist legislation might have been integrated more into the main narrative. Gandhi's newspaper, Indian Opinion, reported on the pass law protests of the African women of Bloemfontein, and Abdurahman's APO newspaper (popular in the Coloured community) reported on Gandhi's protests. Indian Opinion included speeches given by John Dube, and it often praised Dube and the work at Ohlange and reprinted stories from the black press. I offer these remarks to supplement Hofmeyr's fascinating account by providing additional information in portraying the newspaper in its historical and social context. (shrink)

Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact. -/- First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, (...) and people arose as a main class or pillar of nation. As we take a precept of chaotic years from the Articles of Confederation thorough the Constitution, the earlier ambition was mixed between the diplomatic unity and one strong national government. This context implicates much over the centuries and can also be illustrated with a residue of classic and present practice of international politics. The characteristics as temporal for the years would more properly be sensible with the kinds of description, for example, “atmosphere of war, interstate comity or discredit, chaos from the heterogeneous regional power and social incongruence nationally.” A threat from the mainland Europe had been constant at considerable period of time upon the independence. For the nation, it is more urgent to make it clear who will decide the will of nation, how to effectively consolidate the function of government, or how to manage the least of nation with the subjects than active interaction with the people, although the people are one distinct element of new Constitution and ideologically pronounced in the preamble of Constitution. This generally led to recognition that the role of Constitution and Supreme Court were minimal in terms of public policy making and that their policy contained in the opinion often is sheer of internal issues among the public power other than those of people. The kind of Kantian ambition for the universal justice on liberty and equality, hence, should wait for more prosperous time afterwards that people tend to be conscious of their basic rights or public good from the arbitrary rule of majority, given our concocted recognition from the kind of public policy ideals from Bentham, “the greatest happiness of greatest number,” and “revolutionary spirit on people.” It perhaps would not be irrelevant, in understanding of the impact of judicial rulings on public policy, that the US is other than unitary system of government. Oftentimes the kind of rulings on criminalization of adultery or right to privacy would surprise the people, but the kind of oxymoron or public debate, as likely persistent over the decades and diverse reaction, would normally not be present in the jurisdictions of unitary system. The people of such jurisdictions would be more than receptive, and be readily marshaled to adapt with the public guidelines elucidated by the court ruling. We also chat on the multiculturalism in the society and workplace. Given the judicial activism, the Supreme Court justices might be clairvoyant, who would be equipped with goodwill, wisdom and almighty intelligence to assuage an untreatable scope of interests and state specificities. Foreign lawyers would find such ample source of laws in surprise, who might envy a wide coverage of judicial interests. They perhaps would take the US context as the kind of insightful classroom and learn the lessons from their case laws. (shrink)

Criminal offences and regulatory breaches in using social networking evidence in personal injury litigation Pages 2-7 Current Criminal Law ISSN 1758-8405 Volume 2 Issue 3 March 2010 Author SALLY RAMAGE WIPO 900614 UK TM 2401827 USA TM 3,440.910 Orchid ID 0000-0002-8854-4293 Sally Ramage, BA (Hons), MBA, LLM, MPhil, MCIJ, MCMI, DA., ASLS, BAWP. Publisher & Managing Editor, Criminal Lawyer series [1980-2022](ISSN 2049-8047); Current Criminal Law series [2008-2022] (ISSN 1758-8405) and Criminal Law News series [2008-2022] (...) (ISSN 1758-8421). Sweet & Maxwell (Thomson Reuters) (Licensed Annotator of UK Statutes) in Current Law Statutes Annotated, (2006, 2009, 2010 editions) (sole and separate S&M contracts) for 7 UK Criminal Justice Statutes: UK Safeguarding Vulnerable Persons Act 2006; UK International Development Act 2006; UK Fraud Act 2006; UK Policing and Crime Act 2009, UK Local Democracy Act 2009; UK Bribery Act 2010; and UK Crime and Security Act 2010. Trade Mark SALLY RAMAGE ® 2401827 (2005-2025) in the UK, WIPO Trade Mark SALLY RAMAGE® 900164; USA-(Trade Mark 3,440,910) (2008-2028). WARNING: The doing of an unauthorized act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. Essentially, Social Network information may not always be admissible in a court of law but may be the door to lead to other, non-contentious evidence. In fact, even illegally obtained evidence may sometimes be admissible evidence, though this is not absolute. Most of the information available on social networking sites will be ‘personal data’. The data controller is the network operator, without whose consent, collecting such information could be an offence, unless it was necessary for the purpose of preventing or detecting crime. (shrink)

Attacks on migrant and refugee entrepreneurs and their properties by South African rivals and ordinary citizens have become a common phenomenon throughout the country, including the city of Cape Town. Business robberies often result in deaths or serious injuries. The Somali Community Board has noted that over 400 Somali refugees, many of them informal traders, were murdered in South Africa between early 2002 and mid-2010. The police are frequently accused by migrants of fomenting or turning a blind eye to xenophobic (...) attacks on their businesses. Meanwhile, the government refuses to acknowledge the existence of xenophobia or the xenophobic rhetoric in many of these attacks, claiming instead that they are simply the actions of criminal elements. Photographs published in the media of the looting of migrant stores do not tend to feature hardened criminals, but ordinary citizens including children in school uniform. -/- Migrant businesses are portrayed by officials, citizens and the media as having a negative impact on the South African economy and undermining the livelihoods of South Africans. The prevalence of such perceptions helps to explain growing xenophobic sentiment against migrants and refugees. Contrary to these popular perceptions, an emerging literature on migrant entrepreneurship is beginning to demonstrate the positive economic contributions of migrants and refugees to the country. This report examines the nature of informal migrant and refugee entrepreneurship in Cape Town and whether or not the negative stereotypes have any validity. It also seeks to examine what economic contributions migrants and refugees make to the local economy. -/- The report is based on the research conducted by the Growing Informal Cities project, a partnership between SAMP/IMRC, the African Centre for Cities at the University of Cape Town, the Gauteng City-Region Observatory (GCRO) and Eduardo Mondlane University in Maputo. A questionnaire was administered to a sample of 518 migrant owners of microenterprises, which had to meet three basic criteria for inclusion: (a) owned by a non-South African; (b) in operation for at least two years; and (c) unregistered with the South African Revenue Services (SARS). Although migrant entrepreneurs are located in most areas of the city, certain areas have particular concentrations of migrant-owned businesses. "e questionnaires were administered in four such areas: Imizamo Yethu, Philippi, Bellville, and Cape Town CBD. Thirty in-depth interviews were also conducted with selected owners of informal micro-enterprises. Two focus group discussions were held in the Cape Town CBD and Philippi respectively. Fifteen key informant interviews were held with various stakeholders in Cape Town to understand the operation and constraints faced by migrants operating in the city’s informal economy. -/- The major findings of the personal profile of the migrant and refugee entrepreneurs were as follows: -/- • The entrepreneurs came from over 20 different countries of which Zimbabwe, Somalia, the Democratic Republic of the Congo (DRC), Nigeria, Malawi, Ethiopia and Cameroon were the most prominent. Just over a third were from other countries in the SADC. The prominence of Zimbabwean entrepreneurs in the Cape Town informal economy is not surprising, given the events in that country over the past decade and a half and resultant mass migration to South Africa. A total of 57% of the entrepreneurs were from other African countries, especially the DRC, Somalia, Nigeria and Ethiopia. "e majority of migrants from these countries (except Nigeria) came to South Africa as refugees. -/- • A third of the entrepreneurs had refugee permits. Of these, nearly 60% came from only three countries: the DRC, Ethiopia and Somalia. A further 31% held asylum-seeker permits. Of these, 32% were Zimbabwean while another 30% came from DRC, Ethiopia and Somalia. Nearly 12% had permanent residence permits while 8% were holders of work permits. Only 7% of the respondents indicated that they did not have official documentation to stay in South Africa. Thus, the majority of migrant entrepreneurs have forced migrants who are entitled to human rights protection under international and South African refugee law. • Very few of the entrepreneurs entered South Africa before 1994. Only 8% arrived in the immediate post-apartheid years. While another 20% came in the period 2000to 2004, the vast majority (70%) came during the last decade. As many as 44% arrived between 2005 and 2009 and a further 27% thereafter. Migration from Zimbabwe, in particular, escalated between 2005 and 2009 as the country plunged deeper into crisis. • Despite the perception that unemployment at home is a driver of migration to South Africa, only 14% of the entrepreneurs were unemployed immediately before leaving for South Africa. Another 19% were students. Twenty-six percent were working in the informal economy in their home countries. -/- .......INCOMPLETE..... (shrink)

Dido Belle was the illegitimate daughter of Captain Lindsay, the aristocratic nephew of William Murray, Scottish by birth and Lord Chief Justice of England for many decades. The book tells the story of Dido's life in Lord Mansfield homes, from the time her father begged Lord and Lady Mansfield to be wards of the child Dido to the death at age 88 of Lord Mansfield, mainly cared for by Dido and to Dido's young death at age 43. It also raises (...) issues of financial queries, Wills, Probate, and the place of a woman in society in those days, not quite chattel but not equal to men. (shrink)

Purdue Pharma was being investigated by United States Civil and Criminal compliance agencies for many years and a conclusion has now been reached. Although successful , this author feels that such extremely serious corporate frauds must also punish senior individual executives with long jail sentences -in this case-corporate manslaughter.

The UK has been slack in fulfilling its international obligations regarding human trafficking. The UK Modern Slavery Act 2015 has apparently nothing to say about the demand for women trafficked into prostitution, although it addresses the demand for other forms of trfficking though the supply chain provisins in the Act. The UK has disappointed many in condoning prostitution, as Lady Butler-Sloss describes as 'one of the longest standing industries'. However it is one of the longest-standing forms of exploitation. The Act (...) instead, has given much importance to modern -day slavery. An effective way of tackling demand for prostitution and the attendant exploitation would be to make it an offence to purchase someone for sex. Yet perhaps the point is that to curb modern-day slavery is to curb prostitution and pornography, through curbing the supply side. However the UK hasragged its feet over many years, especially when one considers that Internet pornography brings in over £4 billion annually to the UK Gross Domestic Product. (shrink)

In this paper we introduce the nascent literature on Moral Uncertainty Theory and explore its application to the criminal law. Moral Uncertainty Theory seeks to address the question of what we ought to do when we are uncertain about what to do because we are torn between rival moral theories. For instance, we may have some credence in one theory that tells us to do A but also in another that tells us to do B. We examine how we (...) might decide whether or not to criminalize some conduct when we are unsure as to whether or not the conduct is morally permitted, and whether or not it is permissible to criminalize the conduct. We also look at how we might make sentencing decisions under moral uncertainty. We argue that Moral Uncertainty Theory can be an illuminating way to address these questions, but find that doing so is a lot more complicated than applying Moral Uncertainty Theory to individual conduct. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal (...) epistemology and suggest a way to vindicate it. (shrink)

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to (...) perpetrating testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that can prevent every instance of testimonial injustice. (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with (...) exclusion including restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...) Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question. (shrink)

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine in this way. (...) Firms are not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee’s reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. (shrink)

The author examines two proposals to expand legal recognition of individual control over physical integrity. Protections for individual autonomy are discussed in relation to the right to die, euthanasia, medical treatment, and consensual and assaultive sexual behaviours. The author argues that at present, the legal doctrine of consent protects only those individual preferences which are seen to be congruent with dominant societal values; social preferences and convenience override all other individual choices. Under these conditions, more freedom to waive rights of (...) physical integrity can only place socially vulnerable persons at great risk of abuse. (shrink)

How can we know whether we are punishing the same corporation that committed some past crime? Though central to corporate criminal justice, legal theorists and philosophers have yet to address the basic question of how corporate identity persists through time. Simple cases, where crime and punishment are close in time and the corporation has changed little, can mislead us into thinking an answer is always easy to come by. The issue becomes more complicated when corporate criminals undergo any number (...) of transformations—rebranding, spinning-off a division, merging, changing ownership, changing management, swapping lines of business, etc. These changes are common among all corporations, including those trying to conceal or limit liability for past crimes. This article takes a first step toward developing a workable and philosophically satisfying theory of corporate personal identity and discusses its prospects for fulfilling the retributive, rehabilitative, and deterrent purposes of criminal law. (shrink)

Law-enforcement agencies are increasingly able to leverage crime statistics to make risk predictions for particular individuals, employing a form of inference that some condemn as violating the right to be “treated as an individual.” I suggest that the right encodes agents’ entitlement to a fair distribution of the burdens and benefits of the rule of law. Rather than precluding statistical prediction, it requires that citizens be able to anticipate which variables will be used as predictors and act intentionally to avoid (...) them. Furthermore, it condemns reliance on various indexes of distributive injustice, or unchosen properties, as evidence of law-breaking. (shrink)

Antony Duff argues that the criminal law’s characteristic function is to hold people responsible. It only has the authority to do this when the person who is called to account, and those who call her to account, share some prior relationship. In systems of domestic criminal law, this relationship is co-citizenship. The polity is the relevant community. In international criminal law, the relevant community is simply the moral community of humanity. I am sympathetic to his community-based analysis, (...) but argue that the moral community must play a greater role in the domestic case and that the collection of individual political communities must play a greater role in the international case. (shrink)

Alex Sarch’s recent book, Criminally Ignorant: Why the Law Pretends We Know What We Don’t is a wonderfully rich work.1 Sarch provides and defends an explanatorily powerful theory of criminal culpab...

A review of Douglas Husak, Philosophy of Criminal Law: Selected Essays (Oxford University Press, 2010).

Three popular views regarding the modal status of the laws of nature are discussed: Humean Supervenience, nomic necessitation, and scientific/dispositional essentialism. These views are examined especially with regard to their take on the apparent modal force of laws and their ability to explain that modal force. It will be suggested that none of the three views, at least in their strongest form, can be maintained if some laws are metaphysically necessary, but others are metaphysically contingent. Some reasons for thinking that (...) such variation in the modal status of laws exists will be presented with reference to physics. This drives us towards a fourth, hybrid view, according to which there are both necessary and contingent laws. The prospects for such a view are studied. (shrink)

RIGHT TO SILENCE-UK, U.S, FRANCE, and GERMANY SALLY RAMAGE (TRADE MARK REGISTERED) WIPO Orchid ID 0000-0002-8854-4293 Pages 2-30 Current Criminal Law, Volume 1, Issue 2, -/- Sally Ramage, BA (Hons), MBA, LLM, MPhil, MCIJ, MCMI, DA., ASLS, BAWP. Orchid ID 0000-0002-8854-4293 Publisher & Managing Editor Criminal Lawyer series [1980-2022](ISSN 2049-8047) Current Criminal Law series [2008-2022] (ISSN 1758-8405) and Criminal Law News series [2008-2022] (ISSN 1758-8421). Sweet & Maxwell (Thomson Reuters) (Licensed Annotator of UK Statutes) in (...) annual law books Current Law Statutes Annotated, (2006, 2009, 2010 editions) (sole and separate S&M contracts) for 7 UK Criminal Justice Statutes: UK Safeguarding Vulnerable Persons Act 2006; UK International Development Act 2006; UK Fraud Act 2006; UK Policing and Crime Act 2009, UK Local Democracy Act 2009; UK Bribery Act 2010; and UK Crime and Security Act 2010. TradeMark SALLY RAMAGE ® (2005-2025) in the UK, 2401827; WIPO TradeMark SALLY RAMAGE® 900614; USA TradeMark 3,440,910) (2008-2028). WARNING: The doing of an unauthorized act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. -/- ABSTRACT The privilege of the right to silence can be traced back to the 12th century, becoming more developed in later centuries. -/- Table of cases European Court of Human Rights Deweer v Belgium [1980], Eckle v Germany [1982], DN v The Netherlands [1975], Funke v France [1993] 16 EHRR 297, JP v Austria [1989], Kansal v UK [2003] Application No 21413/02 Khan v UK [2000] 31 EHRR 45, Saunders v UK [1997] 23 EHRR 313, Schenk v Switzerland [1991] 13 EHRR 242, and Tora Tolmos v Spain [1995] Table of Cases United Kingdom Brown v Procurator Fiscal, Dunfermline, [2000] , The Times, Feb 14, High Ct Scot.; HM Advocate v Friel [1978] SLT; Lambe v Munster [1882] 10 QBD 110.; Pearse v Pearse [1846] Eng Rep 950 (on truth); Re Pantmaenog Timber Co Ltd [2003] HL; R v Bryce [1992] 95 Cr App Rep 320; R v Canale [1990] 2 All ER 187; R v Fitzpatrick [1995] 4 SCR 154; R v Herbert [1990] 2 SCR 151; R V Hertfordshire County Council, ex parte Green Environmental Industries and another [2000] 1 All ER 773; R v Keenan [1989] Crim LR 720; R v Maguire [1990] Cr App Rep 115; R v Pound, Green and ors [2004]; R v Sang [1979] Crim LR 655; R v Saunders [1986] unreported; R v Seelig, R v Spens [1991] CA; R v Smith [1992] 95 Cr App. R. 191; R v Steen and ors [2003] unreported; R v Walsh [1981] CrimLR 822; R V Ward 96 Cr App R [1993]; R v Weekes [1993] Crim LR 211; R v White [1999] 2 SCR 417; R v Young [2003] unreported; Thompson Newspaper v Canada [1990] 1 SCR 425; Walsh Automation (Europe) Ltd v Bridgeman and ors [2002] EWHC 1344 QB France-Law France 1789 Declaration des driots de l‟homme et du citoyen 1808 Code d ‟instruction criminelle 1946 Constitution 1958 Code de procedure penale 2000 Penal Code Germany-Law Germany 1871 Criminal Code 1877 Criminal Procedure Code (St PO) 1877 Judicial Organisation Law 1949 Constitution 1975 Criminal Code 1998 Criminal Code Table of Cases Germany Germany BGH Admissibility of secret tape recordings judgement 14 June 1960, in BGHSt 14, 358 BGH Lie detector judgement 16 Feb 1954, in BGHSt 5, 332. BberfG Decision concerning the applicability of ne bis in idem 31 March 1987, in BberfGE 75,1; BGH Sweeping deception of suspect judgement 24 August 1988, in BGHSt 36, 328. BGH Judgement 24 August 1993, in BGHSt 39, 305 Table of Cases United States United States of America California v Byres [1971] 402 U.S. 424; Fisher v United States 475 U.S. 391 [1986]; Griffin v California [1965] 380 US 609 [; Hoffman v United States [1950] 341 U.S. 479; Supreme Court Baldwin v NY, 399 US 143 [1970]; Supreme Court Chavez v Martinez , U.S. 123 [2003]; Supreme Court Doyle v Ohio, 426 U.S. 610 [1976]; Supreme Court Escobedo v Illinois, 378 U.S. 478 [1964]; Supreme Court Giglio v US, 405 U.S. 150 [1972] Supreme Court Harris v NY, 401 U.S. 222 [1971]; Supreme Court Kirby v Illinois, 406 U.S. 682 [1972]; Supreme Court Miranda v Arizona, 384 U.S. 436 [1966]; Supreme Court Moore v Illinois, 408 U.S. 768 [1972]; Supreme Court Moran v Burbine, 475 U.S. [1986]; Supreme Court Orzoco v Texas, 324 U.S.24 [1969]; Supreme Court US v Hale [1975] 422 US 17; Supreme Court US v Leon, 468 U.S. 897 [1984]; Supreme Court US v Salerno, 481 U.S. 739 [1987]; Twining v New Jersey 211 US 78 113 -/- . (shrink)

Prominent theories of the criminal law borrow heavily from the two leading theories of temptation—the evaluative conception of temptation, which conceives emotion and desire as essentially involving a kind of evaluation, and the mechanistic conception of temptation, which conceives emotion and desire as essentially involving felt motivation. As I explain, both conceptions of temptation are inconsistent with the possibility of akratic action, that is, action contrary to a person’s conscious better judgment. Both are inconsistent with the possibility of akratic (...) action because both are covertly inconsistent with a two-fold psychological assumption that undergirds common beliefs about human action and lies at the heart of the law of criminal responsibility: that resisting a powerful temptation is extremely difficult yet not ordinarily impossible. I reveal these inconsistencies and offer in place of the leading theories of temptation a theory of affective desire as primitive psychic attraction, an elemental psychological state typically accompanied by evaluation and motivation but not reducible to either one. I then show how this theory of desire is consistent with the possibility of akratic action, with the two-fold psychological assumption at the heart of the law of criminal responsibility, and, in particular, with the defense of provocation. (shrink)