This article provides a brief introduction to some contemporary challenges found in the intersection of bioethics and international criminal law involving genetic privacy, organ trafficking, genetic engineering, and cloning. These challenges push us to re-evaluate the question of whether the international criminal law should hold corporations criminally liable. I argue that a minimalist and Strawsonian conception of corporate responsibility could be useful for deterring the wrongs outlined in first few sections and in answering compelling objections to (...) class='Hi'>corporate criminal liability. (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)

Some progress has been made in recent decades to articulate corporate social responsibility (CSR) and, more recently, to associate CSR with international enforcement of human rights. This progress continues to be hampered, however, by the ability of a multinational corporation (MNC) that violates human rights not only to shift liability from itself to a nation-state but even to win compensation from that nation-state for loss of profits due to restrictions on its business activities. In the process, the nation-state’s (...) sovereignty is diminishing; and, in effect, though still attributed to nation-states, it is being transferred to the MNC. The main aim of this article is (1) to draw on normative considerations to claim that this MNC proto-sovereignty should be modified and (2) to contend that this can eventually be accomplished by adding to corporate adoption of CSR guidelines a regimen of global human rights enforcement. I base this contention on expectations about the internationalization of corporate criminal law and the globalization of civil society in general and of NGOs in particular. I consider various jurisdictions but I focus on US jurisprudence. (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)

Are groups ever capable of bearing responsibility, over and above their individual members? This chapter discusses and defends the view that certain organized collectives – namely, those that qualify as group moral agents – can be held responsible for their actions, and that group responsibility is not reducible to individual responsibility. The view has important implications. It supports the recognition of corporate civil and even criminal liability in our legal systems, and it suggests that, by recognizing group (...) agents as loci of responsibility, we may be able to avoid “responsibility gaps” in some cases of collectively caused harms for which there is a shortfall of individual responsibility. The chapter further asks whether the view that certain groups are responsible agents commits us to the view that those groups should also be given rights of their own and gives a qualified negative answer. (shrink)

Despite the enormity of the financial losses flowing from the 2008 financial crisis and the outrageousness of the conduct that led up to it, almost no individual involved has been prosecuted for criminal conduct, much less actually gone to prison. What this chapter argues is that the failure to punish those in management for their role in this misconduct stems from a misunderstanding of the need to prove that they personally knew of this wrongdoing and harbored an intent to (...) defraud. But not only would negligence be a sufficient legal and moral basis for imposing terms of imprisonment in these cases, mere causal responsibility would also be enough, for causal responsibility has embed in it all we need to find those causally responsible morally responsible too, and once some basis for moral responsibility is established, the imposition of terms of imprisonment is both legally permitted and morally just. (shrink)

This paper aims to explore the feasibility of a restorative justice service in the context of work‐related deaths, specifically in Victoria. Section 1 provides a brief summary of restorative justice and the kind of processes that are most likely to be used in the context of work‐related death. Section 2 discusses an issue for the use of restorative justice in this context that is similar to the problem of whether it is fair or reasonable to assign personal criminal (...) class='Hi'>liability for corporate fault. Section 3 looks at what it is that restorative justice can offer a bereaved family. Section 4 presents a range of suggestions as to how restorative justice could be used in this context—informed by real cases wherever possible. Section 5 presents a brief proposal regarding what may be the most effective and efficient strategy or model, in terms of developing a pilot restorative justice service in this area. Section 6 offers some preliminary guidance for a further consultation that would involve all the key stakeholders. (shrink)

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally (...) liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity (...) to address the basic reasons generating criminal liability. This reframes the normative issues at stake, and has the result that various, perhaps quite heterogeneous, considerations can substantiate penal authority. It also eliminates the existence of a special relation as a necessary condition for legitimate criminal accountability. The argument proceeds by offering an analysis and account of universal jurisdiction. Not only does the alternative elegantly perform where the received view struggles, it can accommodate much of what motivates the pursuit of relational ties in existing efforts to vindicate jurisdictional conclusions. (shrink)

Mobsters and others engaged in risky forms of social coordination and coercion often communicate by saying something that is overtly innocuous but transmits another message ‘off record’. In both ordinary conversation and political discourse, insinuation and other forms of indirection, like joking, offer significant protection from liability. However, they do not confer blanket immunity: speakers can be held to account for an ‘off record’ message, if the only reasonable interpreta- tions of their utterance involve a commitment to it. Legal (...) liability for speech in the service of criminal behavior displays a similar profile of significant protection from indirection along with potential liability for reasonable interpretations. Specifically, in both ordinary and legal contexts, liability depends on how a reasonable speaker would expect a reasonable hearer to interpret their utterance in the context of utter- ance, rather than on the actual speaker’s claimed communicative intentions. (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)

Corporate social responsibility (CSR) has become a focal point for research aimed at extending business ethics to extra-corporate issues; and as a result many companies now seek to at least appear dedicated to one or another version of CSR. This has not affected the arms industry, however. For, this industry has not been discussed in CSR literature, perhaps because few CSR scholars have questioned this industry's privileged status as an instrument of national sovereignty. But major changes in the (...) organization of political communities call traditional views of sovereignty into question. With these considerations in mind I assess the U.S. arms industry on the basis of CSR requirements regarding the environment, social equity, profitability, and use of political power. I find that this industry fails to meet any of these four CSR requirements. Countering a claim that these failings should not be held against arms manufacturers because their products are crucial to national defense, I contend that many of these companies function not as dutiful agents of a nation-state but as politically powerful entities in their own right. So, I conclude, they should be held responsible for the foreseeable consequences that flow from use of their products. This responsibility should include civil liability and, in cases involving war crimes and violations of human rights, responsibility under international human rights standards. (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.

While most discussions of corruption focus on administration, institutions, the law and public policy, little attention in the debate about societal reform is paid to the “internalities” of anti-corruption efforts, specifically to character-formation and issues of personal and corporate integrity. While the word “integrity” is frequently mentioned as the goal to be achieved through institutional reforms, even in criminal prosecutions, the specifically philosophical aspects of character-formation and the development of corporate and individual virtues in a rational and (...) systematic way tend to be neglected. This paper focuses on the “internalities” of anti-corruption work with special emphasis on the pre-requisites that need to be ensured on behalf of the social elites in order for proper individual and collective character- formation to take place throughout the society. The author argues that a systematic pursuit of socially recognised virtues, both those pertaining to society as a whole and those specific to particular professions and social groups, is the most comprehensive and strategically justified way of pursuing anti-corruption policy, while institutional and penal policies can only serve an auxiliary role. The pursuit of institutional and criminal justice policies against corruption in a society that is subject to increasing relativism with regard to values and morality is at best ineffective, and at worst socially destructive. Thus the paper suggests a re-examination of the social discourse on the level of what the author calls “value strategy” and the gradual building of a plan to create and solidify specifically designed features of “corporate character” for key sectors of the society. This approach can serve as the main long-term strategy to improve the public profile of integrity and reinforce morality in both the public and civil sectors. (shrink)

A -/- abortion and infanticide/ academic freedom/ academics/ action/ act-omission doctrine/ addiction and dependence/ adoption/ advertising/ affirmative action/ age of consent/ age of criminal responsibility/ age of majority/ agent/ aggression/ agriculture/ aid, foreign/ AIDS/ air/ akrasia/ allies/ altruism/ American Civil War (1861-1865)/ American exceptionalism/ American War of Independence (1775–1783)/ anarchic social order/ anarcho-capitalism/ anarchy/ animal rights/ animal welfare/ apartheid/ apathy/ appeasement/ apriorism/ aristocracy/ arms trade/ arms race/ artificial intelligence/ arts and sciences/ assassination/ asset stripping/ asylum seekers/ atomism, social/ Austrian (...) School of economics/ authoritarianism/ authority/ autonomy, intellectual/ axis/ -/- B -/- balance of trade/ balance of power (international)/ banking/ bankruptcy, insolvency, and limited liability/ barriers to entry/ begging/ belief/ betting/ big business/ bigotry/ biodiversity/ bioethics/ black market/ blackmail/ blasphemy/ booms and slumps/ borders, political/ boxing and dangerous sports/ boycott/ bribery/ British Broadcasting Corporation (BBC)/ BSE (Bovine Spongiform Encephalopathy)/ bureaucracy/ business cycles/ . (shrink)

Accomplice liability makes someone guilty of a crime he never committed, so long as he helped or influenced the perpetrator and did so with the required mens rea. Just what that mens rea should be has been contested for more than a century. Here I consider three major approaches and find them all wanting. I propose rejecting their common (but rarely questioned) assumption that what matters is the helper’s mental state toward the perpetrator’s commission of an offense. I suggest (...) considering instead his stance toward the perpetrator’s intention to act: a helper is an accomplice, on this view, if he (a) intends to see to it that the principal form or keep his own plan to commit an offense and (b) does not intend or expect that plan’s frustration. This standard better justifies imposing accomplice liability. It more precisely picks out those helpers culpable for the perpetrator’s very offense. And this parity of guilt is the best—perhaps the only good—basis for imposing the same liability on accomplice and principal, in a system so retribution-driven as to choose to do so at all. (shrink)

The purpose of this symposium is to shed light on the genealogy of the idea of a business corporation, an economic institution which has long been regarded with a mixture of awe and apprehension. Each of the four original contributions addresses the history of some of its key features. In the process, each contributor reveals some of the insights that history has to teach us regarding the central concepts that inform contemporary debates about the nature of the corporation, the contours (...) of the corporation's purpose, the sources of corporate power, the functions of corporate law, the duties of directors, the status of shareholders, and the legitimacy of corporate rights. (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 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)

Complicity marks out a way that one person can be liable to sanctions for the wrongful conduct of another. After describing the concept and role of complicity in the law, I argue that much of the motivation for presenting complicity as a separate basis of criminal liability is misplaced; paradigmatic cases of complicity can be assimilated into standard causation-based accounts of criminal liability. But unlike others who make this sort of claim I argue that there is (...) still room for genuine complicity in the law and in morality. In defending this claim, I sketch an approach to complicity which grounds our liability for what others do not in our causal relation to their actions but in our “agency-relations” with others. In such cases, one agent can be liable for the wrongs of second agent to the extent that first authorizes the second to act at her behest. This approach fills the gap where standard causation-based accounts of complicity fail – especially in where several agents cooperatively contribute to an overdetermined harm. (shrink)

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

Lawrence Nelson (2018) criticizes conscientious objection (CO) to abortion statutes as far as they permit health care providers to escape criminal liability for what would otherwise be the legally wrongful taking of a pregnant woman’s life by refusing treatment (i.e. abortion). His key argument refers to the U.S. Supreme Court judgment (Roe v. Wade 1973) that does not treat the unborn as constitutional persons under the Fourteenth Amendment. Therefore, Nelson claims that within the U.S. legal system any vital (...) interests of pregnant women must always take precedence over fetuses’ interests. While agreeing with the main thesis of the article, we believe that the author’s argument neither vindicates his claim, nor explains why those who believe that fetuses are equally protectable human beings do not have the right to refuse to perform an abortion in lifethreatening emergency circumstances (AE). Therefore, the main aim of our commentary is to outline, by referring to our earlier works on conscientious objection in health care (Z_ uradzki 2016) and cultural exemptions (Ciszewski 2016), a better and universalizable argumentative path that would lead to the same conclusion. (shrink)

This articvle describes the fire, its probable cause and corporate criminal responsibility -whether reckless manslaughter or criminal act manslaughter.

Contrary to what is commonly held, negligence (namely, conscious negligence) and willfulness (namely, recklessness) are not distinguished on the basis of the volitional element but on the basis of the cognitive element, since negligence implies ignorance-mistake, being the volitional element common to both figures. On the other hand, if, in negligence, the representation of the typical fact is something that exists less than what objectively exists, in the attempt, on the contrary, it is something that exists more. Hence, attempt implies (...) assumption-mistake. In conclusion, whenever there is a mistake and criminal liability occurs, the “normal” cases of liability, those associated with the commission of a willful and consummate crime, are excluded. (shrink)

The doctrine of mens rea can be expressed in this way: MRP: If A is culpable for performing phi, then A performs phi intentionally in circumstances in which it is impermissible to perform phi. The Sermon on the Mount suggests the following principle: SMP: If A intends to perform phi in circumstances in which it would be impermissible for A to perform phi, then A’s intending to perform phi makes A as culpable as A would be were A to perform (...) phi. MRP and SMP are principles representative of intentionalism, a family of views that emphasizes the importance of intention to judgments about culpability. This essay examines an intentionalist’s defense of MRP with respect to lying, strict criminal liability, and the distinction between intention and foreseeability, along with a defense of SMP with respect to failed attempts, and self-defense. (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)

Some form of assisted dying (voluntary euthanasia and/or assisted suicide) is lawful in the Netherlands, Belgium, Oregon, and Switzerland. In order to be lawful in these jurisdictions, a valid request must precede the provision of assistance to die. Non-adherence to the criteria for valid requests for assisted dying may be a trigger for civil and/or criminal liability, as well as disciplinary sanctions where the assistor is a medical professional. In this article, we review the criteria and evidence in (...) respect of requests for assisted dying in the Netherlands, Belgium, Oregon, and Switzerland, with the aim of establishing whether individuals who receive assisted dying do so on the basis of valid requests. We conclude that the evidence suggests that individuals who receive assisted dying in the four jurisdictions examined do so on the basis of valid requests and third parties who assist death do not act unlawfully. However, further research on the elements that may undermine the validity of requests for assisted dying is warranted. More research on the reasons why requests for assisted dying are refused is also desirable. (shrink)

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)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap (...) arises from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

This article examines the use of ‘enhanced interrogation techniques’ in the context of international legal obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) and the domestic implementation of the international prohibition of torture into United States (US) law under 18 United States Code Sections 2340-2340A. The legal basis for the interrogation programme was a series of contentious legal memoranda written by Department of Justice Office of Legal Counsel lawyers.1 This article examines (...) whether the memo drafters ought to be investigated for incurring criminal liability for the consequences of their memoranda, namely under CAT and Sections 2340-2340A and what has unfolded under President Obama’s administration. (shrink)

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist (...) class='Hi'>criminal justice system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

Philosophy Compass, Volume 17, Issue 5, May 2022.

The aim of this exploratory paper is to review an under-appreciated parallel between group agency and artificial intelligence. As both phenomena involve non-human goal-directed agents that can make a difference to the social world, they raise some similar moral and regulatory challenges, which require us to rethink some of our anthropocentric moral assumptions. Are humans always responsible for those entities’ actions, or could the entities bear responsibility themselves? Could the entities engage in normative reasoning? Could they even have rights and (...) a moral status? I will tentatively defend the (increasingly widely held) view that, under certain conditions, artificial intelligent systems, like corporate entities, might qualify as responsible moral agents and as holders of limited rights and legal personhood. I will further suggest that regulators should permit the use of autonomous artificial systems in high-stakes settings only if they are engineered to function as moral (not just intentional) agents and/or there is some liability-transfer arrangement in place. I will finally raise the possibility that if artificial systems ever became phenomenally conscious, there might be a case for extending a stronger moral status to them, but argue that, as of now, this remains very hypothetical. (shrink)

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law (...) as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. (shrink)

In this issue, Elizabeth Shaw and Gulzaar Barn offer a number of replies to my arguments in ‘Criminal Rehabilitation Through Medical Intervention: Moral Liability and the Right to Bodily Integrity’, Journal of Ethics. In this article I respond to some of their criticisms.

India is a party to several international laws which speak of the duty to prosecute, investigate, and punish crimes. In light of India’s commitments to international law, the scope of its criminal laws appears to be failing on several counts. The following are a few general and specific recommendations for penal law reforms in India. These have been framed in light of several international developments, international laws, and relevant Indian laws and judgments. The recommendations concern the following themes: 1. (...) gaps in criminal law, 2. harmonization of standards 3. liabilities for derogations from fundamental duties (cultural heritage), and 4. a project for decolonization. (shrink)

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes (...) conspirators criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy. These problems are most acute in Texas, where Pinkerton can be combined with capital murder charges to produce automatic life without parole sentences. The Texas example is an extreme illustration of the problem of unintended consequences when state legislators tinker with the carefully drafted, interlocking provisions of a model code. The new statute I propose would put the penal code back in order and respect the culpability constraint. In the latter aspect, it is informed by leading work in philosophical ethics on blameworthiness and culpability. (shrink)

The focus of this article is on the place of the limited-liability joint stock corporation in a satisfactory account of social justice and, more specifically, the question of how such corporations should be regulated and taxed in order to secure social justice. -/- Most discussion in liberal political philosophy looks at state institutions, on the one hand, and individuals, on the other hand, without giving much attention to intermediate institutions such as corporations. This is in part a consequence of (...) a certain degree of idealization in terms of the background model of society with which such theories operate. Intermediate institutions are in an important sense optional or discretionary, and one would be hampering an account of justice if it built-in from the start particular kinds of institutions which we could imagine doing without. The only non-state institution that has received adequate attention in political philosophy is the nuclear family, in part because of its pervasiveness and resilience. But the corporation is probably second only to the family in its significance, in terms of its effects on the lives of individuals, and yet has been left without adequate attention. (shrink)

This essay argues, through conceptual analysis, against an objection to reproaches addressed to financiers after the Crisis of 2007-8: the idea that they could not have acted otherwise (at least, not rationally) and that no one should be blamed for a fact one could not have avoided. If correct, this would threaten the justifiability of corporate social responsibility and legal responsibility of directors. Identified as the “thesis of inevitability”, this objection is illustrated by an analysis of the film Margin (...) Call (2011) and associated with other investigations on ethics and responsibility. This target-thesis follows from a confusion between different notions of responsibility (for an assignment, for a judgment, and causal and liability responsibility) and leads to an inconsistent form of fatalism. It is suggested, finally, that invoking the “inevitability” can be a way to rationalize the decision, obscuring reasons against it. (shrink)

Our aim in this essay is to critically examine Iris Young’s arguments in her important posthumously published book against what she calls the liability model for attributing responsibility, as well as the arguments that she marshals in support of what she calls the social connection model of political responsibility. We contend that her arguments against the liability model of conceiving responsibility are not convincing, and that her alternative to it is vulnerable to damaging objections.

According to a rights forfeiture theory of punishment, liability to punishment hinges upon the notion that criminals forfeit their rights against hard treatment. In this paper, I assume the success of rights forfeiture theory in establishing the permissibility of punishment but aim to develop the view by considering how forfeited rights might be reclaimed. Built into the very notion of proportionate punishment is the idea that forfeited rights can be recovered. The interesting question is whether punishment is the sole (...) means for reclaiming forfeited rights. I argue for a pluralistic theory of rights reclamation, according to which, there are multiple ways by which a wrongdoer can recapture her forfeited rights. In particular, I argue that offering remorseful compensation is a valid means by which a wrongdoer might partially, or fully, reclaim her right against punishment. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

Over almost a half-century, evidence law scholars and philosophers have contended with what have come to be called the “Proof Paradoxes.” In brief, the following sort of paradox arises: Factfinders in criminal and civil trials are charged with reaching a verdict if the evidence presented meets a particular standard of proof—beyond a reasonable doubt, in criminal cases, and preponderance of the evidence, in civil trials. It seems that purely statistical evidence can suffice for just such a level of (...) certainty in a variety of cases where our intuition is that it would nonetheless be wrong to convict the defendant, or find in favor of the plaintiff, on merely statistical evidence. So, we either have to convict with statistical evidence, in spite of an intuition that this is unsettling, or else explain what (dispositive) deficiency statistical evidence has. -/- Most scholars have tried to justify the resistance to relying on merely statistical evidence: by relying on epistemic deficiencies in this kind of evidence; by relying on court practice; and also by reference to the psychological literature. In fact, I argue, the epistemic deficiencies philosophers and legal scholars allege are suspect. And, I argue, while scholars often discuss unfairness to civil defendants, they ignore a long history of relying on statistical evidence in a variety of civil matters, including employment discrimination, toxic torts, and market share liability cases. Were the dominant arguments in the literature to prevail, it would extremely difficult for plaintiffs to recover in a variety of cases. -/- The various considerations I advance lead to the conclusion that when it comes to naked statistical evidence, philosophers and legal scholars who argue for its insufficiency have been caught with their pants down. (shrink)

Medicine, like law, is a pragmatic, probabilistic activity. Both require that decisions be made on the basis of available evidence, within a limited time. In contrast to law, medicine, particularly evidence-based medicine as it is currently practiced, aspires to a scientific standard of proof, one that is more certain than the standards of proof courts apply in civil and criminal proceedings. But medicine, as Dr. William Osler put it, is an "art of probabilities," or at best, a "science of (...) uncertainty." One can better practice medicine by using other evidentiary standards in addition to the "scientific." To employ only the scientific standard of proof is inappropriate, if not impossible; furthermore, as this review will show, its application in medicine is fraught with bias. Evidence is information. It supports or undermines a proposition, whether a hypothesis in science, a diagnosis in medicine, or a fact or point in question in a legal investigation. In medicine, physicians marshal evidence to make decisions on how to best prevent, diagnose, and treat disease, and improve health. In law, courts decide the facts and render justice. Judges and juries assess evidence to establish liability, to settle custody and medical issues, and to determine a defendant's guilt or innocence. (shrink)

Suppose that it can be right to grant amnesty from criminal and civil liability to those guilty of political crimes in exchange for full disclosure about them. There remains this important question to ask about the proper form that amnesty should take: Which additional burdens, if any, should the state lift from wrongdoers in the wake of according them freedom from judicial liability? I answer this question in the context of a recent South African Constitutional Court case (...) that considered whether an officer having been granted amnesty for apartheid-era killings should be held to mean that the police force may not discharge him on the ground of having been convicted of a serious offence. The Court ruled that, despite amnesty having been granted to the guilty officer, the police force was permitted to discharge him. I distinguish the major ethical reasons the Court gives for its conclusion, which ultimately appeal to the value of national reconciliation, and I argue not only that the reconciliation-based rationales rest on empirical contingencies for which there is little evidence, but also that their logic in fact provides some reason to reject the Court’s conclusion. Then, I sketch an attractive new theory of right action, grounded on salient sub-Saharan values often associated with talk of ‘ubuntu’, that I maintain provides a stronger, unitary foundation for the Court’s key pronouncements. I conclude by discussing some of the broader implications of the moral theory for related matters, such as the rights of victims in the processes leading up to presidential pardons of those who have committed atrocities and the duties of newspapers with regard to the reputations of the latter. (shrink)

The paper focuses on the conditions under which an agent can be justifiably held responsible or liable for the harmful consequences of his or her actions. Kant has famously argued that as long as the agent fulfills his or her moral duty, he or she cannot be blamed for any potential harm that might result from his or her action, no matter how foreseeable these may (have) be(en). I call this the Duty-Absolves-Thesis or DA. I begin by stating the thesis (...) in a more precise form and then go on to assess, one by one, several possible justifications for it: that (i) it wasn’t the view Kant himself actually held or was committed to; (ii) there is nothing strange about the DA, either theoretically or intuitively; (iii) the DA is more plausible as an account of legal (either criminal or tort) liability; (iv) the DA becomes perfectly plausible when conceived as a thesis about what insulates the agent from either remedial moral responsibility or the demands of compensatory justice; (v) the rationale for the DA is to protect our moral assessment of agents and their actions from the threat of moral luck. I show, with the help of the infamous Inquiring Murderer example, all these (and some other) justificatory attempts unsuccessful. I conclude that besides being counter-intuitive, the DA-thesis also lacks firm theoretical grounding and should therefore be rejected as (part of) an account of outcome moral responsibility. (shrink)

Under a policy first enacted in 1988 and expanded in 1996, federally funded public housing authorities (“PHAs”) and private landlords renting their properties to tenants receiving federal housing assistance have been required to include a provision in all leases under which drug-related criminal activity as well as criminal activity that in any way poses a threat to other tenants or nearby residents constitutes ground for initiating eviction proceedings. This strict liability eviction policy, which has become known as (...) the “One-Strike Rule,” was part of a broader congressional effort to combat the “reign of terror” that Congress believed drug dealers were imposing on public housing and assisted housing tenants. Like many of the crime-related policies enacted in the 1980s and 1990s, the One-Strike Rule has done little to reduce crime rates, but has been wildly successful in ensuring that the situation of poor households receiving federal assistance remains highly precarious. Calls for reform of the One-Strike Rule are almost as old as the policy itself, but given the political outlook of the current administration, the prospects for reform at the federal level are dim. While federal law and a combination of gridlock and unwillingness in the congressional and executive branches foreclose a range of possible strategies for reform, there is nonetheless room to mitigate the socially corrosive effects of the One-Strike Rule through legislative efforts at the state and local level. Courts in various jurisdictions have upheld state laws that protect vulnerable tenants despite the federal strict liability policy, and these holdings help to provide a framework for how state and local governments seeking to protect tenants can do so without their efforts necessarily falling prey to the Supremacy Clause. This article describes that framework and proposes three concrete measures that fit it. The article is structured as follows: after explaining the One-Strike Rule and the threat it poses to vulnerable tenants (Section II), the article discusses the burden the Rule imposes on tenants and the benefits it is supposed to bring to other parties, and argues that the resulting distribution of burdens and benefits is unjust (Section III). The article then lays out three concrete measures that state and local governments can enact to protect tenants who face eviction for criminal activity under the Rule without falling prey to a federal preemption challenge: requiring “good cause” for eviction, giving tenants the right to cure a breach of their lease, and providing tenants with free counsel in landlord-tenant court (Section IV). (shrink)

The recent trend toward privately owned and operated prisons calls attention to a variety of issues involving human rights. The growing number of corporatized correctional institutions is especially notable in the United States, but it is also a global phenomenon in many countries. The reasons cited for privatizing prisons are usually economic; the opportunity to outsource prison services enables local political leaders to save tax revenue, and local communities are promised a chance to create new jobs and bring in a (...) new industry. This article will address the history of prisons and the recent trend toward privatizing prisons and the perception of prisons as a for-profit enterprise. This new economic order brings with it a set of human rights concerns, including the relationship of for-profit prisons to increased numbers of incarcerated persons and increased sentences, racism and classism. The contractual relationship between political leaders and prison corporations will be addressed, noting that conditions of liability frequently mean that prison administrations lack motivation to safeguard the human rights of prisoners. The human rights issues often extend outside of the private prison itself, having a negative effect on the local community. (shrink)

Since our moral and legal judgments are focused on our decisions and actions, one would expect information about the neural underpinnings of human decision-making and action-production to have a significant bearing on those judgments. However, despite the wealth of empirical data, and the public attention it has attracted in the past few decades, the results of neuroscientific research have had relatively little influence on legal practice. It is here argued that this is due, at least partly, to the discussion on (...) the relationship of the neurosciences and law mixing up a number of separate issues that have different relevance on our moral and legal judgments. The approach here is hierarchical; more and less feasible ways in which neuroscientific data could inform such judgments are separated from each other. The neurosciences and other physical views on human behavior and decision-making do have the potential to have an impact on our legal reasoning. However, this happens in various different ways, and too often appeal to any neural data is assumed to be automatically relevant to shaping our moral and legal judgments. Our physicalist intuitions easily favor neural-level explanations to mental-level ones. But even if you were to subscribe to some reductionist variant of physicalism, it would not follow that all neural data should be automatically relevant to our moral and legal reasoning. However, the neurosciences can give us indirect evidence for reductive physicalism, which can then lead us to challenge the very idea of free will. Such a development can, ultimately, also have repercussions on law and legal practice. (shrink)

In seeking to clarify the concept of conflict of interest (COI) in debates about physician–industry relationships, Howard Brody (2011) highlights the extent to which the prob- lem turns on a common pejorative understanding of COI. Whether it is the academic or public policy “pharmapologists” or “pharmascolds” talking about COI, there is often a straightforward and overly simplistic correlation made: that is, a conflict of interest—by definition—leads to fraudulent or corrupt behavior. The same type of reasoning is com- monly found in (...) discussions about COI outside the health sciences, most notably in news stories about the awarding of government contracts or the behaviour of corporate executives. The problem is that in focusing on dramatic failures to manage COI (e.g., around Vioxx), there is a tendency to strongly associate COI with extreme forms of financial and even criminal misconduct, leaving the public, policymakers, academics, and professionals with a skewed and limited understanding of the concept. (shrink)