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 corporate (...) class='Hi'>criminal liability. (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)

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 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)

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)

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)

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.

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)

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)

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)

In a recent book, Neil Levy argues that culpable action – action for which we are morally responsible – is necessarily produced by states of which we are consciously aware. However, criminal defendants are routinely held responsible for criminal harm caused by states of which they are not conscious in Levy’s sense. In this chapter I argue that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance (...) of an act is too strict, and that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. (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)

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)

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.

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)

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)

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)

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)

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 article argues that businesses are morally responsible for compensating the people harmed by their activities even if they were not negligent, i.e., the businesses took reasonable precautions. Critics of this position maintain that responsibility requires choice, and by taking precautions, businesses choose not to harm others. This article accepts their argument’s first premise but rejects the second premise. It contends that businesses often seek risky or innovative activities to increase profits, and the essence of innovative activities is that precautions (...) cannot sufficiently reduce their foreseeable harmful consequences. The correct understanding of businesses’ decision-making enables us to appreciate that businesses choose to undertake risky activities while knowing that they can harm others despite preventive measures. It follows that preventive measures should not serve as an excuse against liability for harm. (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)

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)

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)

It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths do not (...) have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law. (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 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)

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)

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.

The first part of this paper surveys five perspectives in Kant’s philosophy on the quantity of retribution to be inflicted on wrongdoers, ordered by two dimensions of difference – whether they are theoretical or practical perspectives, and the quantity of retribution they prescribe: (1) theoretical zero, the perspective of theoretical philosophy; (2) practical infinity, the perspective of God and conscience; (3) practical equality, the perspective of punishment in public law; (4) practical degrees, the perspective we adopt in private relations to (...) others and (5) practical zero, a perspective I argue is entailed by Kant’s doctrine of strict right, which is his justification of coercing compliance with public law. Kant acknowledges 1–4 but not 5. The second part draws on Kant’s account of the burden of proof in criminal law to argue that Kant is wrong to adopt 3 in responding to criminals, and that we ought to adopt 5 instead. (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)

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 concept of distributed moral responsibility (DMR) has a long history. When it is understood as being entirely reducible to the sum of (some) human, individual and already morally loaded actions, then the allocation of DMR, and hence of praise and reward or blame and punishment, may be pragmatically difficult, but not conceptually problematic. However, in distributed environments, it is increasingly possible that a network of agents, some human, some artificial (e.g. a program) and some hybrid (e.g. a group of (...) people working as a team thanks to a software platform), may cause distributed moral actions (DMAs). These are morally good or evil (i.e. morally loaded) actions caused by local interactions that are in themselves neither good nor evil (morally neutral). In this article, I analyse DMRs that are due to DMAs, and argue in favour of the allocation, by default and overridably, of full moral responsibility (faultless responsibility) to all the nodes/agents in the network causally relevant for bringing about the DMA in question, independently of intentionality. The mechanism proposed is inspired by, and adapts, three concepts: back propagation from network theory, strict liability from jurisprudence and common knowledge from epistemic logic. (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.

Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a (...) lawsuit on each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of reasonableness, which assigns liability instrumentally on the basis of a utilitarian calculus. Finally, Professor Fletcher examines stylistic differences between the two paradigms which may explain the modern preference for the paradigm of reasonableness. (shrink)

Many suggest that we should look backward and measure the differences among various parties' past emissions of greenhouse gases to allocate moral responsibility to remedy climate change. Such backward-looking approaches face two key objections: that previous emitters were unaware of the consequences of their actions, and that the emitters who should be held responsible have disappeared. I assess several arguments that try to counter these objections: the argument from strict liability, arguments that the beneficiary of harmful or unjust (...) emissions should pay, and arguments from distributive justice. I argue that none of these successfully justify a backward-looking approach to the temporally remote portion of the climate burden. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done by the mere (...) fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (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)

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)

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)

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)

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)

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)

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)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

Resumo: Em décadas recentes, a investigação filosófica sobre a responsabilidade moral e o livre-arbítrio, que por muito tempo foi vista como um empreendimento principalmente teórico, passou a também incluir preocupações de tipo mais prático. Essa mudança é bem ilustrada pela proposta cética desenvolvida por autores como Derk Pereboom e Gregg Caruso. Seus trabalhos não apenas negam que sejamos agentes livres e moralmente responsáveis (em um sentido específico dos termos em questão), mas também defendem reformas na maneira como a responsabilização é (...) efetivada em nossas relações interpessoais e, especialmente, no sistema penal. Este artigo examina as implicações práticas do ceticismo de Pereboom e Caruso, principalmente no que diz respeito à sua implementabilidade. Argumento que o núcleo propriamente cético da proposta é inviável para seres humanos com a psicologia moral que temos, mas que, apesar disso, alguns elementos da proposta são compatíveis com uma proposta não-cética focada no aperfeiçoamento das práticas punitivas. Abstract: In recent decades, the philosophical investigation of moral responsibility and free will, which for a long time was seen as a mostly theoretical enterprise, became also the place of more practically oriented concerns. The skeptical view developed by Derk Pereboom and Gregg Caruso is a good illustration of the change. In their work, they not just deny that we are free and morally responsible agents (in a specific sense of the relevant terms) but also propose the reform of responsibility practices as they figure in our interpersonal relations and, especially, in the criminal justice system. This paper examines the practical implications of Pereboom and Caruso’s skepticism, particularly in what concerns its likelihood of being implemented. I argue that the strictly skeptical core of their proposal is not viable for human beings with a moral psychology like ours, but that some elements are nonetheless consistent with a non-skeptical view focused on the improvement of punitive practices. (shrink)

In the real world there are people who enter the homes and steal everything they find valuable. In the virtual world there are individuals who penetrate computer systems and "steal" all your valuable data. Just as in the real world, there are uninvited guests and people feel happy when they steal or destroy someone else's property, the computer world could not be deprived of this unfortunate phenomenon. It is truly detestable the perfidy of these attacks. For if it can be (...) observed immediately the apparent lack of box jewelry, penetration of an accounting server can be detected after a few months when all clients have given up the company services because of the stolen data came to competition and have helped it to make best deals. Cybercrime is a phenomenon of our time, often reflected in the media. Forensic investigation of computer systems has a number of features that differentiate it fundamentally from other types of investigations. The computer itself is the main source of information for the investigator. CONTENTS: Computing systems and storage media - Computing devices - - Peripheral devices - - External drives for media storage - Typology of data stored on specific supports – File systems - - Program that allows working with ” inactive” space - Information that can be obtained from the computing system environment Computer networks - Copper wire in computer networks - Optical fibers - Wireless LAN - Internet and Intranet Software and services - Client/server architecture - Protocols and Standards - Internet Services - - e-Mail - - - Spam - - HTTP - - Web address - URL - - Web browsers - - - Browser cookies - - Working with web pages - - - Choosing your favorite web pages - - - Keeping track of visited web pages - - - Saving web pages - - Proxy servers - - Privacy on the Internet - FTP - Instant Messaging - Peer-to-peer networks Vulnerabilities - The first attacks on the Internet - Cybercrime - - Typologies of cyber attackers - - - Classification of cyber attackers according to their skills and objectives - Classification of risks and incidents in cyberworld - - Classification as a list of terms - - List of categories - - Categories of results - - Empirical lists - Events, attacks and incidents - Online security events, actions, and targets - - Actions - - Targets - Attacks - - Tools - - Vulnerabilities - - Unauthorized results Cybercrime laws - The concept of "cybercrime" Investigations - Computer forensic investigations - Digital evidence - Digital sampling during investigations - The suspect - Witnesses in cybercrime - Transporting of samples in laboratory - Analysis of samples - Preparing team members - Computer tools Convention on Cybercrime - Preamble - Chapter I – Use of terms - Chapter II – Measures to be taken at the national level - - Section 1 – Substantive criminal law - - - Title 1 – Offences against the confidentiality, integrity and availability of computer data and systems - - - Title 2 – Computer-related offences - - - Title 3 – Content-related offences - - - Title 4 – Offences related to infringements of copyright and related rights - - - Title 5 – Ancillary liability and sanctions - - Section 2 – Procedural law - - - Title 1 – Common provisions - - - Title 2 – Expedited preservation of stored computer data - - - Title 3 – Production order - - - Title 4 – Search and seizure of stored computer data - - - Title 5 – Real-time collection of computer data - - Section 3 – Jurisdiction - Chapter III – International co-operation - - Section 1 – General principles - - - Title 1 – General principles relating to international co-operation - - - Title 2 – Principles relating to extradition - - - Title 3 – General principles relating to mutual assistance - - - Title 4 – Procedures pertaining to mutual assistance requests in the absence of applicable international agreements - - Section 2 – Specific provisions - - - Title 1 – Mutual assistance regarding provisional measures - - - Title 2 – Mutual assistance regarding investigative powers - - - Title 3 – 24/7 Network - Chapter IV – Final provisions Recommendation No. R (95) 13 - Appendix to Recommendation No. R (95) 13 - - I. Search and seizure - - II. Technical surveillance - - III. Obligations to co-operate with the investigating authorities - - IV. Electronic evidence - - V. Use of encryption - - VI. Research, statistics and training - - VII. International co-operation Rules for obtaining digital evidence by police officers Standards in the field of digital forensics Principles in digital evidence Procedures model for the forensic examination - Hard disk examination Code of Ethics Sources and references About - Nicolae Sfetcu - - By the same author - - Contact Publishing House - MultiMedia Publishing . (shrink)

According to the dominant position in the just war tradition from Augustine to Anscombe and beyond, there is no "moral equality of combatants." That is, on the traditional view the combatants participating in a justified war may kill their enemy combatants participating in an unjustified war - but not vice versa (barring certain qualifications). I shall argue here, however, that in the large number of wars (and in practically all modern wars) where the combatants on the justified side violate the (...) rights of innocent people ("collateral damage"), these combatants are in fact liable to attack by the combatants on the unjustified side. I will support this view with a rights-based account of liability to attack and then defend it against a number of objections raised in particular by Jeff McMahan. The result is that the thesis of the moral equality of combatants holds good for a large range of armed conflicts while the opposing thesis is of very limited practical relevance. (shrink)

Jeff McMahan has argued against the moral equivalence of combatants (MEC) by developing a liability-based account of killing in warfare. On this account, a combatant is morally liable to be killed only if doing so is an effective means of reducing or eliminating an unjust threat to which that combatant is contributing. Since combatants fighting for a just cause generally do not contribute to unjust threats, they are not morally liable to be killed; thus MEC is mistaken. The problem, (...) however, is that many unjust combatants contribute very little to the war in which they participate—often no more than the typical civilian. Thus either the typical civilian is morally liable to be killed, or many unjust combatants are not morally liable to be killed. That is, the liability based account seems to force us to choose between a version of pacifism, and total war. Seth Lazar has called this “The Responsibility Dilemma”. But I will argue that we can salvage a liability-based account of war—one which rejects MEC—by grounding the moral liability of unjust combatants not only in their individual contributions but also in their complicit participation in that war. On this view, all enlistees, regardless of the degree to which they contribute to an unjust war, are complicitously liable to be killed if it is necessary to avert an unjust threat posed by their side. This collectivized liability based account I develop avoids the Responsibility Dilemma unlike individualized liability-based accounts of the sort developed by McMahan. (shrink)

McMahan argues that justification defeats liability to defensive attack (which would undermine the thesis of the "moral equality of combatants"). In response, I argue, first, that McMahan’s attempt to burden the contrary claim with counter-intuitive implications fails; second, that McMahan’s own position implies that the innocent civilians do not have a right of self-defense against justified attackers, which neither coheres with his description of the case (the justified bombers infringe the rights of the civilians) nor with his views about (...) rights forfeiture, is unsupported by independent argument, and, in any case, extremely implausible and counter-intuitive; and third, that his interpretation of the insulin case confuses the normative relations between an agent’s justification and non-liability on the one hand and permissible or impermissible interference with the agent’s act on the other. Similar confusions, fourth, affect his discussion of liability to compensation. (shrink)