The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded (...) on sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

The reasonable person standard is used in adjudicating claims of self-defence. In US law, an individual may use defensive force if her beliefs that a threat is imminent and that force is required are beliefs that a reasonable person would have. In English law, it is sufficient that beliefs in imminence and necessity are genuinely held; but the reasonableness of so believing is given an evidential role in establishing the genuineness of the beliefs. There is, of course, much contention over (...) how to spell out when, and in virtue of what, such beliefs are reasonable. In this chapter, we identify some distinctive issues that arise when we consider that implicit racial bias might be implicated in the beliefs in imminence and necessity. Considering two prominent interpretations of the reasonable person standard, we argue that neither is acceptable. On one interpretation, we risk unfairness to the defendant-who may non-culpably harbour bias. On another, the standard embeds racist stereotypes. Whilst there are formulations of the defence that may serve to mitigate these problems, we argue that they cannot be avoided in the presence of racist social structures. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this 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 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)

Free will skepticism is radical in its core claim that free will is illusory. Criminal law, however, appears to presuppose that persons are free and hence, morally responsible for their actions. So, if free will skepticism is true, our current practices that hold people to account for their wrongs appears unjustified–even immoral. This paper will challenge the free will skeptic’s core claim that free will does not exist and defend current practices of moral responsibility by offering (and defending) a (...) Frankfurtian-compatibilist approach to the topics of free will and determinism. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather (...) than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

The trial took place at Bristol Crown Court, England, United Kingdom for the murder of Joanna Yeates, and Dr Vincent Tabak was the Defendant. The author attended at court for this trial and this paper notes many of the obvious and unsatisfactory legal and procedural points in this trial. Dr Vincent Tabak was convicted of the murder at this trial. Of course the jury were not to know the finer points of law as the lower court judge did not advise (...) the jury of any such points before they adjourned to make their decision. All but one concluded that Dr Tabak was guilty as charged, although even the charge was vague and all-encompassing as he was charged with ‘murder between Friday 17 December 2010 and Sunday 19 December 2010’. Defence counsel, very eminent barrister-at-law, appeared to be cowed by the other side and let them walk all over this case procedurally. For example, prosecution counsel handed him 1200 pages of evidence on the first day of the trial, as if to FULFIL disclosure obligations. E was stunned and asked the court for time off. But this was never again discussed. -/- The lower court judge appeared as if he had already decided on the case. When Defence Counsel asked him if he had before him a copy of a certain document, he flippantly say he had it but had left it on his desk in his room. When Defence Counsel, of international renown, was ready to present his opening speech and cross-examination of his client, Dr Vincent Tabak, this lower court judge dismissed the jury to their lunch break knowing that counsel was going to speak. Court had to be adjourned and the members of the jury quickly assembles by the court porters as they were leaving the court, which must have hampered their interest in what counsel’s statement said. A photograph of a dead body by a roadside, allegedly, Miss Yeates, was shown by projector slide a dozen irrelevant times during the trial period, thus embedding that photograph in the jury’s mind. The computer evidence leaves much to be desired and could, some suggested, easily have been concocted by the prosecution team, abusing the law of metadata evidence. Te lady who presented it did not give the court her qualifications and her expertise if any- and much more that beggars belief and loses trust in the British Criminal Justice System, such as it is, following ‘form over substance’. -/- . (shrink)

Pardon powers are common but difficult to justify. A pardon power is, roughly, a power that is (a) possessed by a non-judicial official, (b) used to cancel legal liability to a criminal sanction in a particular case without thereby altering the law, and (c) unconstrained by law. So defined, pardon powers seem to be at odds with two constitutional principles. Contrary to the separation of powers, the pardon power gives to someone other than a judge a decisive role in (...) determining criminal liability in particular cases. Contrary to the rule of law, the pardon power is neither constrained nor ruled by law. -/- Here I provide a novel defence of pardon powers, in three steps. First, even an optimal legal code requires suboptimal results in some cases. In such cases there is a “gap” between what is required by the code we should have and what we should do absent that code. Adhering to the code in every gap case is undesirable: while it would avoid suboptimal results, it would create too much unpredictability. Deviating from the code in every gap case is also undesirable: while it would ensure predictability, it would produce too many suboptimal results. The best strategy is to adhere in some cases and to deviate in others, that is, to selectively deviate. The most important thing about selective deviation is that it leads to like cases being treated differently. This is the second step in the argument. Third, pardon powers are an appropriate vehicle for selective deviation. Selective deviation calls for a power that can be used to set aside the code without changing it. It calls for a power that can be used inconsistently. Moreover, it calls for a power that is not in the hands of a body institutionally disposed towards consistency in decision-making, such as the judiciary. That is, it requires a power with features (a)-(c) – a pardon power. -/- This argument overcomes the various objections to pardon powers. Contrary to the objection from the separation of powers, selective deviation is a task better carried out by non-judicial officials. Contrary to the objection from the rule of law, a power of selective deviation must be unconstrained to preserve the law’s guiding function. Overall, the features of pardon powers that seemed to be in tension with the separation of powers and the rule of law turn out to be favoured by those same principles. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about (...) whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

The question of justice in Western philosophy finds its humble beginnings in the interplay of life and death. I am referring here to Plato’s Apology. The Apology is not only a text tracing the fate of the great philosopher Socrates by recounting his final speech before the judges of Athens, but it is also a text that, on a more subtle level, announces the advent of a promising justice that is birthed from death, or, to be more precise, from a (...) specific kind of death. Socrates, here, develops a justice that does not surge from the defence of one’s determination as a singular accused, or from the reconciliation of the criminal singularity into the ethical social body through pardon or punishment, but which rather derives from a negation, a radical annihilation of the category of pure singularity. Socrates does not defend himself as an accused who is determinately and definitively singular, but rather affirms the fact that, in some sense, there is no such singular to be defended, that he is not even one (οὐδείς), less than one, nothing. It is, precisely, in this affirmation of a negative, in this opening of a chasm, that a radically other conception of justice and its relation to the singular is subtly proposed. By pushing the singular to the margins of its possibility, by challenging, bending, pushing the question of the singular and its defence to its outmost limit, Socrates redeploys justice not as a remedying balance, but as the abysmal economy of the bottomless question, a fall into the void, in which life, death, the singular and justice co-incide to burst all definitive determination, substantial opposition and the possibility of establishing a firm ground for any such categories to hold as such. In gradually shedding off the substantial presuppositions of his singularity (knowledge, self-relation and relation to others), he unleashes a modality of the singular which deploys a kind of justice, a wholly other justice, which has shaken the tradition ever since, and, as this article will seek to show, reverberates again in what Jacques Derrida called deconstruction. (shrink)

Wars are large-scale conflicts between organized groups of belligerents, which involve suffering, devastation, and brutality unlike almost anything else in human experience. Whatever one’s other beliefs about morality, all should agree that the horrors of war are all but unconscionable, and that warfare can be justified only if we have some compel- ling account of what is worth fighting for, which can justify contributing, as individu- als and as groups, to this calamitous endeavour. Although this question should obviously be central (...) to both philosophical and politi- cal discussion about war, it is at the forefront of neither. In recent years, philosophical discussion of warfare has bloomed, but the debate has focused on whom we may kill, on the assumption that our aims are justified.1 Political debate, meanwhile, is more concerned with matters of prudence, international law, and public justification, than with reassessing what is worth fighting for. For wars of intervention to halt or prevent massive humanitarian crises, this gap is not so troubling. When warfare is the only means to prevent the mass killing or enslavement of the innocent, the purposes of military force are clear enough (though undoubtedly many other problems remain). The problem is more pressing, how- ever, for the justification of national defence.3 Although common-sense morality and international law view national defence as the paradigm case of justified warfare, grounding this consensus is surprisingly difficult.4 We typically believe that any state is justified in using lethal force to protect its territory against any form of uninvited military incursion by any other state. And yet we lack a good argument to explain why this should be so. In this chapter, I explain why one familiar and otherwise plausible approach to the justification of killing in war cannot adequately ground common-sense views of permissible national defence.5 Reductionists believe that justified warfare reduces to an aggregation of acts that are justified under ordinary principles of interpersonal morality.6 The standard form of reductionism focuses on the principles governing killing in ordinary life, specifically those that justify intentional killing in self- and other-defence, and unintended but foreseen (for short, collateral) killing as a lesser evil. Justified warfare, on this view, is no more than the coextension of multiple acts justified under these two principles. Reductionism is the default philosophical approach to thinking through the ethics of killing in war. It makes perfect sense to ask what principles govern permissible kill- ing in general, before applying them to the particular context of war. If it cannot deliver a plausible set of conclusions about when national defence is permitted, then we must either revise our beliefs about which conclusions count as plausible, or else face the significant challenge of developing a different theoretical model for justifying war- fare—an exceptionalist model, which views war as an exception to the regular moral landscape, to which principles apply which apply to nothing else but war.7 We must show, in other words, that there is something worth fighting for in wars of national defence, which is not engaged when we use force in any other context. The chapter proceeds as follows. Section 2.2 sets out the argument against reduc- tionism.8 Section 2.3 considers and rebuts one common response to the argument, which has often been thought sufficient grounds to disregard its conclusion. Section 2.4 then asks whether a modified reductionism would survive unscathed by the argu- ment. Finally, section 2.5 sets out some desiderata on a plausible exceptionalist alterna- tive. Section 2.6 concludes. (shrink)

A state-based reason for one to intend to perform an action F is a reason for one to intend to F which is not a reason for one to F. Are there any state-based reasons to intend? According to the Explanatory Argument, the answer is no, because state-based reasons do not satisfy a certain explanatory constraint. I argue that whether or not the constraint is correct, the Explanatory Argument is unsound, because state-based reasons do satisfy the constraint. The considerations that (...) undermine the Explanatory Argument also generate a strong, positive case for the existence of state-based reasons to intend. (shrink)

I confront Feyerabend's position and critical rationalism in order to have a foundation or starting point for my (historical) investigation. The main difference of his position towards falsificationism is the belief that different theories cannot be discussed rationally. Feyerabend is convinced that Galilei's observations with the telescope in the historical context of the Copernican revolution supports his criticism. In particular, he argues that the Copernican theory was supported by deficient hypotheses, and falsifications were disposed by ad hoc hypotheses and propaganda. (...) Furthermore, he claims that his philosophy of science reconstructs Galilei's defence of the Copernican theory. He introduces a central principle of his position (the principle of tenacity) in order to justify a research strategy of not eliminating falsified theories. He tries to show that the tenacious defence of a theory corresponds to Galilei's defence of the Copernican theory. Remarkably, Feyerabend's approach to explain the development of science earns an important support from his interpretation of Galilei's observations. On this basis I give a falsificationist interpretation of Galilei's observations with the telescope, and oppose this interpretation to Feyerabend's. From a falsificationist perspective, auxiliary hypotheses compete during the Copernican revolution which can (with some effort) be critically discussed. Then I analyse the historical case in order to test Feyerabend's interpretation of the Copernican revolution. Inter alias I investigate thoroughly whether Galilei, as Feyerabend claims, immunised falsifications of the Copernican theory by the introduction of ad hoc hypotheses. The investigation considers Galilei's explanation of Venus' phases, his establishment of the irradiation hypothesis, the explanation of the telescope's functionality, and the role of the reproducibility of the observations with the telescope. Finally I provide a rational reconstruction of Galilei's falsification of the Ptolemaic theory. The formalisation shows that Galilei was not a cautious critical rationalist, but a very confident scientist using the method of falsification. (shrink)

I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.

Common sense has it that animals matter considerably less than humans; the welfare and suffering of a cow, a chicken or a fish are important but not as much as the welfare and suffering of a human being. Most animal ethicists reject this “speciesist” view as mere prejudice. In their opinion, there is no difference between humans and other animals that could justify such unequal consideration. In the opposite camp, advocates of speciesism have long tried to identify a difference that (...) would fit the bill, but they have consistently seemed to fail. In light of this, some naturally began to appeal to Moorean arguments: the case against speciesism must be flawed somehow, these philosophers maintain, because speciesism is supported by a strong and widespread intuition. This chapter draws on recent findings in social psychology to criticize this defence of speciesism. It argues that the strong and widespread intuition that humans count more than animals is epistemically defective because it is causally shaped by a pair of irrelevant influences: cognitive dissonance and tribalism. Accordingly, it is no suitable basis for a Moorean argument. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals (...) a pressing need for change. (shrink)

As a painfully outdated institution the school is accused of: being alienating, closing itself off to society and to the needs of young people; reproducing social inequality and consolidating existing power relations; demotivating youth; showing a lack of effectiveness and having great difficulty with employability. And last but not least, the school is considered redundant: the school, where learning is bound to time and place, is no longer needed in the digital era of virtual learning environments. The ultimate charge: the (...) school is a product of outdated ways of distributing knowledge and expertise, determined by primitive technologies of the past. Adieu school. This book advocates the acquittal of the school. It argues that many of the allegations against the school are motivated by an age-old fear and even hatred toward one of its radical but essential characteristics: that the school provides ‘free time' and transforms knowledge and skills into 'common goods', and therefore has the potential to give everyone, regardless of background, natural talent or aptitude, the time and space to leave their known environment, rise above themselves and renew (and thus change in unpredictable ways) the world. This defence of the school starts from an investigation of what makes a school a school and pinpoints why the school has value in and of itself. It reveals the various attempts to rob the school of its scholastic character, that is, to tame the school. The ultimate aim is to elaborate a touchstone that helps to defend as well as to re-invent school. -/- Jan Masschelein and Maarten Simons are members of the Laboratory for Education and Society, KU Leuven. They share an interest in research on the public dimensions of education and are currently elaborating a philosophy of schooling. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of (...) proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

Recent years have seen growing interest in modifying interventionist accounts of causal explanation in order to characterise noncausal explanation. However, one surprising element of such accounts is that they have typically jettisoned the core feature of interventionism: interventions. Indeed, the prevailing opinion within the philosophy of science literature suggests that interventions exclusively demarcate causal relationships. This position is so prevalent that, until now, no one has even thought to name it. We call it “intervention puritanism” (I-puritanism, for short). In this (...) paper, we mount the first sustained defence of the idea that there are distinctively noncausal explanations which can be characterized in terms of possible interventions; a position we call “intervention liberalism” (I-liberalism, for short). While many have followed James Woodward (2003) in committing to I-puritanism, we trace support for I-liberalism back to the work of Jaegwon Kim (1974). Furthermore, we analyse two recent sources of scepticism regarding I-liberalism: debate surrounding mechanistic constitution; and attempts to provide a monistic account of explanation. We show that neither literature provides compelling reasons for adopting I-puritanism. Finally, we present a novel taxonomy of available positions upon the role of possible interventions in explanation: weak causal imperialism; strong causal imperialism; monist intervention puritanism; pluralist intervention puritanism; monist intervention liberalism; and finally, the specific position defended in this paper, pluralist intervention liberalism. (shrink)

This article offers an account and defence of constructionism, both as a metaphilosophical approach and as a philosophical methodology, with references to the so-called maker's knowledge tradition. Its main thesis is that Plato's “user's knowledge” tradition should be complemented, if not replaced, by a constructionist approach to philosophical problems in general and to knowledge in particular. Epistemic agents know something when they are able to build (reproduce, simulate, model, construct, etc.) that something and plug the obtained information into the correct (...) network of relations that account for it. Their epistemic expertise increases with the scope and depth of the questions that they are able to ask and answer. Thus, constructionism deprioritises mimetic, passive, and declarative knowledge that something is the case, in favour of poietic, interactive, and practical knowledge of something being the case. Metaphilosophically, constructionism suggests adding conceptual engineering to conceptual analysis as a fundamental method. (shrink)

This chapter examines how advances in nanotechnology might impact criminal sentencing. While many scholars have considered the ethical implications of emerging technologies, such as nanotechnology, few have considered their potential impact on crucial institutions such as our criminal justice system. Specifically, I will discuss the implications of two types of technological advances for criminal sentencing: advanced tracking devices enabled by nanotechnology, and nano-neuroscience, including neural implants. The key justifications for criminal punishment- including incapacitation, deterrence, rehabilitation, and (...) retribution – apply very differently to criminal sentences using these emerging technologies than they do to imprisonment. Further, use of these technologies would represent a shift away from retribution as the primary justification for criminal punishment. In addition, the possibility of nano-neural implants entails a new model of rehabilitation: namely, involuntary rehabilitation aimed at changing an offender’s character, rather than his environment. (shrink)

I defend the 'Repugnant' Conclusion that for any possible population of happy people, a population containing a sufficient number of people with lives barely worth living would be better. Four lines of argument converge on this conclusion, and the conclusion has a simple, natural theoretical explanation. The opposition to the Repugnant Conclusion rests on a bare appeal to intuition. This intuition is open to charges of being influenced by multiple distorting factors. Several theories of population ethics have been devised to (...) avoid the Repugnant Conclusion, but each generates even more counterintuitive consequences. The intuition opposing the Repugnant Conclusion is thus among the best candidates for an intuition that should be revised. (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)

Intentionalism about demonstratives is the view that the referent of a demonstrative is determined solely by the speaker's intentions. Intentionalists can disagree about the nature of these intentions, but are united in rejecting the relevance of other factors, such as the speaker's gestures, her gaze, and any facts about the addressee or the audience. In this paper, I formulate a particular version of this view, and I defend it against six objections, old and new.

In “Qualia in a Contemporary Neurobiological Perspective”, Korf tackles the perennial issue of qualia in the philosophy of mind. His discussion is partly a response to Chalmers’ hard problem, which, as evidenced by other recent discussions in Dialogues, remains fresh after nearly two decades. Korf highlights the importance of regarding each brain as a particular shaped by unique contingencies and suggests how neurobiological research might proceed in light of this. However, I argue that his discussion does not address what is (...) at the core of Chalmers’ hard problem, and so fails to bridge the gap between neurobiological processes and qualia. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of (...) proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This is the revised version of an invited keynote lecture delivered at the "1st Australian Computing and Philosophy Conference". The paper is divided into two parts. The first part defends an informational approach to structural realism. It does so in three steps. First, it is shown that, within the debate about structural realism, epistemic and ontic structural realism are reconcilable. It follows that a version of OSR is defensible from a structuralist-friendly position. Second, it is argued that a version of (...) OSR is also plausible, because not all relata are logically prior to relations. Third, it is shown that a version of OSR is also applicable to both sub-observable and observable entities, by developing its ontology of structural objects in terms of informational objects. The outcome is informational structural realism, a version of OSR supporting the ontological commitment to a view of the world as the totality of informational objects dynamically interacting with each other. The paper has been discussed by several colleagues and, in the second half, ten objections that have been moved to the proposal are answered in order to clarify it further. (shrink)

When I say that my conception of metaphysics is Aristotelian, or neo-Aristotelian, this may have more to do with Aristotle’s philosophical methodology than his metaphysics, but, as I see it, the core of this Aristotelian conception of metaphysics is the idea that metaphysics is the first philosophy . In what follows I will attempt to clarify what this conception of metaphysics amounts to in the context of some recent discussion on the methodology of metaphysics (e.g. Chalmers et al . (2009), (...) Ladyman and Ross (2007)). There is a lot of hostility towards the Aristotelian conception of metaphysics in this literature: for instance, the majority of the contributors to the Metametaphysics volume assume a rather more deflationary, Quinean approach towards metaphysics. In the process of replying to the criticisms towards Aristotelian metaphysics put forward in recent literature I will also identify some methodological points which deserve more attention and ought to be addressed in future research. (shrink)

Many contemporary philosophers rate error theories poorly. We identify the arguments these philosophers invoke, and expose their deficiencies. We thereby show that the prospects for error theory have been systematically underestimated. By undermining general arguments against all error theories, we leave it open whether any more particular arguments against particular error theories are more successful. The merits of error theories need to be settled on a case-by-case basis: there is no good general argument against error theories.

Hybrid contingentism combines first-order contingentism, the view that it is contingent what individuals there are, with higher-order necessitism, the view that it is non-contingent what properties and propositions there are (where these are conceived as entities in the range of appropriate higher-order quantifiers). This combination of views avoids the most delicate problems afflicting alternative contingentist positions while preserving the central contingentist claim that ordinary, concrete entities exist contingently. Despite these attractive features, hybrid contingentism is usually faced with rejection. The main (...) reason for this is an objection that crucially involves haecceitistic properties, properties such as being identical to Plato or being identical to Aristotle. The objection alleges that by accepting the necessary existence of such haecceities, hybrid contingentists incur an explanatory commitment that they are unable to discharge, namely that of explaining how it is that certain haecceities ‘lock onto’ their target individuals even when those individuals are absent. To defend hybrid contingentism against this charge, I first clarify the haecceities objection in several respects and consider, in particular, what notion of explanation the objection is operating with. After arguing that it can be fruitfully understood as a challenge to provide metaphysical grounds for certain haecceity facts, I develop a contingentist response to the objection that draws on recent work on the connection between ground and essence. (shrink)

Here I reply to the main points raised by the commentators on the arguments put forward in my Delusions and Other Irrational Beliefs (OUP, 2009). My response is aimed at defending a modest doxastic account of clinical delusions, and is articulated in three sections. First, I consider the view that delusions are inbetween perceptual and doxastic states, defended by Jacob Hohwy and Vivek Rajan, and the view that delusions are failed attempts at believing or not-quitebeliefs, proposed by Eric Schwitzgebel and (...) Maura Tumulty. Then, I address the relationship between the doxastic account of delusions and the role, nature, and prospects of folk psychology, which is discussed by Dominic Murphy, Keith Frankish, and Maura Tumulty in their contributions. In the final remarks, I turn to the continuity thesis and suggest that, although there are important differences between clinical delusions and non-pathological beliefs, these differences cannot be characterised satisfactorily in epistemic terms. (shrink)

This article argues that access to meaningful sexual experience should be included within the set of the goods that are subject to principles of distributive justice. It argues that some people are currently unjustly excluded from meaningful sexual experience and it is not implausible to suggest that they might thereby have certain claim rights to sexual inclusion. This does not entail that anyone has a right to sex with another person, but it does entail that duties may be imposed on (...) society to foster greater sexual inclusion. This is a controversial thesis and this article addresses this controversy by engaging with four major objections to it: the misogyny objection; the impossibility objection; the stigmatisation objection; and the unjust social engineering objection. (shrink)

In this chapter I use virtue theory to critique certain contemporary punishment practices. From the perspective of virtue theory, respect for rational agency indicates a respect for choice-making as the process by which we form dispositions which in turn give rise to further choices and action. To be a moral agent one must be able to act such that his or her actions deserve praise or blame; virtue theory thus demands that moral agents engage in rational choice-making as a means (...) to develop and exercise the character traits from which culpable action issues. With respect to criminal offenders, virtue theory indicates the state is obligated to recognize offenders’ right to form their own moral character via rational choice-making, even while under state supervision. I will argue below that punishment practices should limit choice-making only to the extent necessary to achieve the functions of punishment : whenever possible, punishment should preserve opportunities for the rational exercise of character and development of virtue. This means that even within a prison setting incarcerated offenders should be able to make some choices about their daily lives. Offenders should also be offered opportunities to develop virtuous traits through rehabilitative programming such as drug addiction treatment, educational programming, and job training. I will also argue that two contemporary punishment practices unjustly undermine an offender’s moral agency. The first is the overuse of isolation sanctions, which very severely limits offender choice-making. The second is chemical castration, which results in limiting an offender’s capacity to develop his character within a specific realm of choice-making. I conclude that these two punishments violate offenders’ moral agency, and that this violation cannot be justified by appeal to the aims of incapacitation, deterrence, retribution, and rehabilitation. (shrink)

David Owens objected to the truth-aim account of belief on the grounds that the putative aim of belief does not meet a necessary condition on aims, namely, that aims can be weighed against other aims. If the putative aim of belief cannot be weighed, then belief does not have an aim after all. Asbjørn Steglich-Petersen responded to this objection by appeal to other deliberative contexts in which the aim could be weighed, and we argued that this response to Owens failed (...) for two reasons. Steglich-Petersen has since responded to our defence of Owens’s objection. Here we reply to Steglich-Petersen and conclude, once again, that Owens’s challenge to the truth-aim approach remains to be answered. (shrink)

I defend a weak version of the Pigou-Dalton principle for chances. The principle says that it is better to increase the survival chance of a person who is more likely to die rather than a person who is less likely to die, assuming that the two people do not differ in any other morally relevant respect. The principle justifies plausible moral judgements that standard ex post views, such as prioritarianism and rank-dependent egalitarianism, cannot accommodate. However, the principle can be justified (...) by the same reasoning that has recently been used to defend the core axiom of ex post prioritarianism and egalitarianism, namely, Pigou-Dalton for well-being. The arguably biggest challenge for proponents of Pigou-Dalton for chances is that it violates State Dominance for social prospects. However, I argue that we have independent reason for rejecting State Dominance for social prospects, since it prevents a social planner from properly respecting people's preferences. (shrink)

I consider some of the objections that have been raised against a conceptualist solution to the “grounding problem”, I address in particular two objections that I call Conceptual Validity and Instantiation, and I attempt to answer them on behalf of the conceptualist. My response, in a nutshell, is that the first of these objections fails because it ascribes to the conceptualist some commitments that do not really follow from the view’s basic insight, while the second objection also fails because it (...) denies the conceptualist resources that the alternative positions are allowed to use. (shrink)

Recent work in the philosophy of religion has resurrected Leibniz’s idea that there is a best possible world, perhaps ours. In particular, Klaas Kraay’s [2010] construction of a theistic multiverse and Nevin Climenhaga’s [2018] argument from infinite value theory are novel defenses of a best possible world. I do not think that there is a best world, and show how both Kraay and Climenhaga may be resisted. First, I argue that Kraay’s construction of a theistic multiverse can be resisted from (...) plausible assumptions about set theory. Next, I argue against the value-theoretic assumptions that underlie Climenhaga’s argument and show how to give an infinite value theory where there is no best world. (shrink)

Many including Judith Jarvis Thomson, Philippa Foot, Peter Geach, Richard Kraut, and Paul Ziff have argued for good simpliciter skepticism. According to good simpliciter skepticism, we should hold that there is no concept of being good simpliciter or that there is no property of being good simpliciter. I first show that prima facie we should not accept either form of good simpliciter skepticism. I then show that all of the arguments that good simpliciter skeptics have proposed for their view fail (...) to show that we have good reason to accept good simpliciter skepticism. So, I show that we do not have good reason to accept good simpliciter skepticism. (shrink)

This paper considers issues raised by Elizabeth Anderson’s recent critique of the position she terms ‘luck egalitarianism’. It is maintained that luck egalitarianism, once clarified and elaborated in certain regards, remains the strongest egalitarian stance. Anderson’s arguments that luck egalitarians abandon both the negligent and prudent dependent caretakers fails to account for the moderate positions open to luck egalitarians and overemphasizes their commitment to unregulated market choices. The claim that luck egalitarianism insults citizens by redistributing on the grounds of paternalistic (...) beliefs, pity and envy, and by making intrusive and stigmatizing judgments of responsibility, fails accurately to characterize the luck egalitarian’s rationale for redistribution and relies upon luck egalitarians being insensitive to the danger of stigmatization. The luck egalitarian position is reinforced by the fact that Anderson’s favoured conception of equality, ‘democratic equality’, is counterintuitively indifferent to all unchosen inequalities, including intergenerational inequalities, once bare social minima are met. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were (...) considered to be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

Pereboom’s Four-Case Argument was once considered to be the most powerful of the manipulation arguments against compatibilism. However, because of Demetriou’s :595–617, 2010) response, Pereboom has significantly weakened his argument. Manipulation arguments in general have also been challenged by King : 65–83, 2013). In this paper, I argue that the Four-Case Argument resists both these challenges. One upshot is that Pereboom doesn’t need weaken his argument. Another is that compatibilists still need a response the Four-Case Argument. And another is that (...) we get a much better understanding of the Four-Case Argument, and of manipulation arguments more generally, than is currently available in the literature. (shrink)

I suggest that the theories of remembering one finds in the philosophy of memory literature are best characterised as theories principally operating at three different levels of inquiry. Simulationist views are theories of the psychofunctional process type remembering. Causalist views are theories of referential remembering. Epistemic views are theories of successful remembering. Insofar as there is conflict between these theories, it is a conflict of integration rather than—as widely presented—head‐on disagreement. Viewed in this way, we can see the previous awareness (...) condition and preservationism as principles applying at only some of the corresponding levels of inquiry. Where either principle has been rejected, it is, I claim, due to arguments which slip between these different levels. While the view of the landscape I offer does not dissolve ongoing disputes about the nature of remembering, it clarifies the dialectical rules of engagement, helping to clear the path for future, collaborative progress to be made. The view enables us to see less conflict in the recent philosophy of memory literature than there seems at face value to be. (shrink)

According to Jim Pryor’s dogmatism, when you have an experience with content p, you often have prima facie justification for believing p that doesn’t rest on your independent justification for believing any proposition. Although dogmatism has an intuitive appeal and seems to have an antisceptical bite, it has been targeted by various objections. This paper principally aims to answer the objections by Roger White according to which dogmatism is inconsistent with the Bayesian account of how evidence affects our rational credences. (...) If this were true, the rational acceptability of dogmatism would be seriously questionable. I respond that these objections don’t get off the ground because they assume that our experiences and our introspective beliefs that we have experiences have the same evidential force, whereas the dogmatist is uncommitted to this assumption. I also consider the question whether dogmatism has an antisceptical bite. I suggest that the answer turns on whether or not the Bayesian can determine the priors of hypotheses and conjectures on the grounds of their extra-empirical virtues. If the Bayesian can do so, the thesis that dogmatism has an antisceptical bite is probably false. (shrink)

I defend my ‘one-act’ interpretation of Kant’s account of judgments of beauty against recent criticisms by Paul Guyer. Guyer’s text-based arguments for his own ‘two-acts’ view rely on the assumption that a claim to the universal validity of one’s pleasure presupposes the prior existence of the pleasure. I argue that pleasure in the beautiful claims its own universal validity, thus obviating the need to distinguish two independent acts of judging. The resulting view, I argue, is closer to the text and (...) more phenomenologically plausible than Guyer’s two-acts alternative. (shrink)

The idea that humans should abandon their individuality and use technology to bind themselves together into hivemind societies seems both farfetched and frightening – something that is redolent of the worst dystopias from science fiction. In this article, we argue that these common reactions to the ideal of a hivemind society are mistaken. The idea that humans could form hiveminds is sufficiently plausible for its axiological consequences to be taken seriously. Furthermore, far from being a dystopian nightmare, the hivemind society (...) could be desirable and could enable a form of sentient flourishing. Consequently, we should not be so quick to deny it. We provide two arguments in support of this claim – the axiological openness argument and the desirability argument – and then defend it against three major objections. (shrink)

The distinction between dimensions and units in physics is commonplace. But are dimensions a feature of reality? The most widely-held view is that they are no more than a tool for keeping track of the values of quantities under a change of units. This anti-realist position is supported by an argument from underdetermination: one can assign dimensions to quantities in many different ways, all of which are empirically equivalent. In contrast, I defend a form of dimensional realism, on which some (...) assignments of dimensions to quantities better describe reality than others. The argument I provide is a form of inference to the best explanation. In particular, the technique of dimensional analysis is explanatory, but it is only successful for certain systems of dimensions. Since these dimensional systems support scientific explanations, we have reason to believe that they are real. (shrink)

The austere view of nonsense says that the source of nonsense is not a violation of the rules of logical syntax, but nonsense is always due to a lack of meaning in one of the components of a sentence. In other words, the necessary and sufficient condition for nonsensicality is that no meaning has been assigned to a constituent in a sentence. The austere conception is the key ingredient of the resolute reading of Tractatus Logico-Philosophicus that presents a therapeutical interpretation (...) of the work, and rejects a possibility of conveying some ineffable truths by means of nonsensical sentences. In this paper, I defend the austere view against the most important objections. Firstly, I discuss textual sources for ascribing to Wittgenstein the austere view that have not been sufficiently thoroughly discussed yet. Next, I indicate that the apparent occurrence of words out of the context of a sentence on lists of verbs and in definitions is not in conflict with the version of the context principle recommended by austere theorists, since this argument does not sufficiently take into account the distinction between sign and symbol. Furthermore, I argue that the austere conception and the principle of compositionality are jointly tenable, for the former view does not exclude the existence of syntactic and semantic rules, but only shows that they are recognizable conditionally. Finally, I indicate that the austere view of nonsense should be seen as a viable option by a contemporary theorist of nonsense, for it helps us to avoid making controversial assumptions about the nature of meaning and content. (shrink)

Business ethics is often understood as a variety of professional ethics, and thus distinct from ordinary morality in an important way. This article seeks to challenge two ways of defending this claim: first, from the nature of business practice, and second, from the contribution of business. The former argument fails because it undermines our ability to rule out a professional-ethics approach to a number of disreputable practices. The latter argument fails because the contribution of business is extrinsic to business in (...) a way that distinguishes from the established professions. The article ultimately suggests we adopt a more aspirational approach to business ethics, which retains an appeal even in the face of charges of anti-capitalist irrelevance. (shrink)