The aim of this paper is to argue that the utilitarian principle of criminalization is sounder than its poor reputation suggests. The paper begins by describing three possible answers to the research question: To what extent should the consequences of criminalization matter morally in a theory of criminalization? Hereafter I explain why I shall discuss only two of these answers. Then follows a detailed and critical specification of UPC. Furthermore, I will argue why criticisms of UPC made (...) by philosophers such as Douglas Husak and Victor Tadros in their recent work are far from convincing. Finally, I will present a positive reason for accepting UPC as a principle of criminalization, namely: that UPC is consistent with what I call the Counterproductive Criminalization Principle, while non-consequentialist theories of criminalization are not. (shrink)

Over the past few decades criminal law scholarship has been dominated by moralistic conceptions of the criminal law but recent years have seen the emergence of the so-called ‘political turn’ in criminal law theorizing. In this article I analyze the theory proffered by Vincent Chiao, one of the most persuasive proponents of the political or ‘public law’ trend, in contradistinction to the moralistic theory of criminalization defended by Anthony Duff. I demonstrate that the differences between the two theories are (...) more nuanced and more complex than first appears. In fact, because of how it concerns itself only with moral wrongdoing of a certain kind – namely, public wrongdoing – it turns out that Duff’s theory is best analyzed as a version of the public law account of criminal law. I argue that taking on Chiao’s public law approach, but allowing it to be informed by the principles of Duff’s (rather than Chiao’s) political philosophy, holds out the most promise for reaching a satisfactory conception of criminal law. I finish by considering this conclusion in light of the fact that hybrid theories are nothing new in the debate between retributivism and instrumentalism, a dividing line along which Chiao’s and Duff’s theories fall. I argue that the particular hybrid theory I defend holds important advantages over other such theories. (shrink)

It is widely accepted that criminalization creates a prudential reason to refrain from the criminalized conduct in order to avoid punishment, and prudence is the wrong reason to refrain from wrongdoing. According to Michael S. Moore, these facts should lead us to conclude that the criminalization of wrongful conduct corrupts motives by making some who would otherwise have refrained from wrongdoing for the right reason, refrain from wrongdoing only out of prudence. This paper argues that and provide no (...) reason to believe that criminalization corrupts motives, but should instead lead us to conclude that the criminalization of wrongful conduct obscures motives by making it harder to identify those who refrain from wrongdoing for the right reason. The paper then goes on to argue that the badness of obscuring motives is a pro tanto reason against criminalizing wrongdoing. (shrink)

(2006). Responding to acts preparatory to the commission of a crime: Criminalization or prevention? Criminal Justice Ethics: Vol. 25, No. 2, pp. 23-39.

Abstract:This article unveils the gendered, racialized, and silent sexual dimensions at play in the criminalization of Milagro Sala, the charismatic and controversial female indigenous leader of the Organización Barrial Tupac Amaru in Argentina. It argues this organization was able to contest narrow definitions of women's welfare used in local state bureaucracies in terms of certain redistribution and recognition, while fostering complex and controversial state-movement relations in terms of transparency and accountability. In important ways, Tupac Amaru politicized the “undeserving poor.” (...) Women who did not conform to the moral prescriptions that patrol the conduct of poor women were the backbone and the leadership of the organization. Drawing on interviews, fieldwork materials, and documents gathered between 2009 and 2017, this paper shows that the main problems created by the criminalization of the organization were not only the arbitrary detention of Sala. Equally significant, the criminalization also brought about sudden negative changes in poor women and LGBT popular sectors' living conditions, employment opportunities, and access to health care, alongside the overall erosion of minimal gains in social and economic rights. It ultimately undermined the legitimacy of rights-based demands of popular and indigenous sectors in a multi-ethnic society. (shrink)

The notion that a false positive (false conviction) is worse than a false negative (false acquittal) is a deep-seated commitment in the theory of criminal law. Its most illustrious formulation, the so-called Blackstone’s ratio, affirms that “it is better that ten guilty persons escape than that one innocent suffer”. Are people’s evaluations of criminal statutes consitent with this tenet of the Western legal tradition? To answer this question, we conducted three experiments (total _N_ = 2492) investigating how people reason about (...) a particular class of offenses—proxy crimes—known to vary in their specificity and sensitivity in predicting actual crime. By manipulating the extent to which proxy crimes convict the innocent and acquit those guilty of a target offense, we uncovered evidence that attitudes toward proxy criminalization depend primarily on its propensity toward false positives, with false negatives exerting a substantially weaker effect. This tendency arose across multiple experimental conditions—whether we matched the rates of false positives and false negatives or their frequencies, whether information was presented visually or numerically, and whether decisions were made under time pressure or after a forced delay—and was unrelated to participants’ probability literacy or their professed views on the purpose of criminal punishment. Despite the observed inattentiveness to false negatives, when asked to justify their decisions, participants retrospectively supported their judgments by highlighting the proxy crime’s efficacy (or inefficacy) in combating crime. These results reveal a striking inconsistency: people favor criminal policies that protect the rights of the innocent, but report comparable concern for their expediency in fighting crime. (shrink)

January 2018, the American College of Obstetrics and Gynecology issued a position statement opposing the punishment of women for self‐induced abortion. To those unfamiliar with emerging trends in abortion in the United States and worldwide, the need for the declaration might not be apparent. Several studies suggest that self‐induced abortion is on the rise in the United States. Simultaneously, prosecutions of pregnant women for behavior thought to harm the fetus are increasing. The ACOG statement responds to both trends by urging (...) doctors to honor the integrity and confidentiality inherent in the doctor‐patient relationship. Seen in the context of the larger battle over legal abortion, the statement has far broader implications. By acknowledging the role doctors play in enforcing pregnancy‐related crimes, the ACOG position statement wisely anticipates the ways in which doctors will be implicated should access to legal abortion be further restricted. To understand the need for the ACOG directive, you must first understand that the story of what will happen if abortion becomes a crime in the United States is not to be found in history books; it is staring at us across our southern border. (shrink)

Politics, public discourse, and legislation restricting abortion has settled on a moderate orthodoxy: restrict abortion, but leave exceptions for pregnancies that result from rape and incest. I challenge that consensus and suggest it may be much harder to defend than those who support the compromise think. From both Pro-Life and Pro-Choice perspectives, there are good reasons to treat all abortions as equal.

ABSTRACT In this article I explore whether liberal retributive justice should be conceived of either individualistically or holistically. I critically examine the individualistic account of retributive justice and suggest that the question of retribution – i.e., whether and when punishment of an individual is compatible with just treatment of that individual – must be answered holistically. By resorting to the ideal of sensitive reasons, a model of legitimacy at the basis of our best normative models of democracy, the article argues (...) that in modern liberal democracies, punishment of an offender A for f is compatible with just treatment of A only if punishment of an individual for f can be legitimate in A's and A's fellow citizens' eyes. Only once retributive justice is understood in this holistic fashion the imposition of punishment can be made compatible with just treatment of individuals. RESUMO Neste artigo, exploro se justiça retributiva liberal deve ser concebida ou individualista ou de forma holística. Examino criticamente a conta individualista da justiça retributiva e sugiro que a questão da retribuição – quando a punição de um indivíduo é compatível com o tratamento justo desse indivíduo – deve ser respondida de forma holística. Recorrendo ao ideal de razões sensíveis, um modelo de legitimidade na base dos nossos melhores modelos normativos de democracia, argumento que, nas democracias liberais modernas, a punição de um delinquente A para φ é compatível com o tratamento justo de A só se punição de um indivíduo para φ pode ser legítimo aos olhos de A e seus concidadãos. Uma vez que a justiça retributiva é entendida dessa forma holística, a imposição da pena pode ser compatível com o tratamento justo de indivíduos. (shrink)

Book reviewed in this article: Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization. By David A. J. Richards. Totowa, NJ: Rowman and Littlefield, 1982. xii + 316 pp. $26.95.

In the field of human rights, expressions like justice and legal reform are closely linked to the process of harmonization of domestic and international human rights standards. Harmonization of human rights standards can be described as a process wherein international human rights are incorporated or given full effect to at the domestic level. [i] To harmonize the two set of standards i.e. domestic and international is viewed as both a commitment and obligation of states under international law. [ii] In terms (...) of state practice, the process of harmonization may entail a set of actions including adoption of laws and creation of mechanisms for enforcement and redressal of violations. -/- At the international level, the harmonization agenda is actively promoted at forums including the Universal Periodic Review (UPR) or during consultations between states and human rights treaty bodies, etc. Questions on whether states are in compliance with their international human rights commitments under treaties and other resolutions are to a large extent determined based on the extent of harmonization. Other pertinent questions being whether existing domestic laws are compatible with international human rights standards? What conditions obstruct and facilitate harmonization of human rights standards? Are there any parameters to measure harmonization? -/- While harmonization is widely promoted, its study and assessment is complex. (shrink)

La distinction de droit pénal entre la conduitemalum in seetmalum prohibitumest vieille de cinq siècles dans les juridictions de common law, et pourtant son sens autant que son utilité continuent d’être débattus. Je me joins à la mêlée, en faisant valoir que les conditions ne peuvent pas être interprétées littéralement, mais que il existe un moyen d’établir la distinction qui est à la fois plausible et utile. Une conduitemala in seest un comportement quidoitêtre interdit dans toute société politique juste, alors (...) que la conduitemala prohibita peutêtre criminalisée, mais nedoitpas absolument l’être. Je sollicite dans mon explication des concepts de la théorie du contrat social. (shrink)

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

In the last two decades there has been a meteoric rise of international criminal tribunals and courts and also a strengthening chorus of critics against them. Today it is hard to find strong defenders of international criminal tribunals and courts. This book attempts such a defense against an array of critics. It offers a nuanced defense, accepting many criticisms but arguing that the idea of international criminal tribunals can be defended as providing the fairest way to deal with mass atrocity (...) crimes in a global arena. Fairness and moral legitimacy will be at the heart of this defense. The authors take up the economic and political arguments that have been powerfully expressed, as well as arguments about sovereignty, punishment, responsibility, and evidence; but in the end they show that these arguments do not defeat the idea of international criminal courts and tribunals. (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)

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate (...) offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment. (shrink)

The Thing about Thugs a novel by Tabish Khair set between London and the Indian region of Bihar, the end of 1830’s and contemporary age, reflects on the relationship regarding the transmission of knowledge and the construction of the colonial criminal. I investigate how Khair, in his neo-Victorian and postcolonial novel, recalls canonical works of Victorian Literature in which thugs, together with other spectral, haunting figures, enter British territory to tell a different version of the official stories, to change the (...) course of the events and uncover truths regarding things happened overseas, during British colonial adventures. Starting from Meadows Taylor’s “Confessions of a Thug”, to which the novel is strictly connected, it will be interesting to follow Khair’s itinerary across the different narratives of the Thug’s symbolic, political and social meanings in mid- and late Victorian times, from Dickens’s "The Mystery of Edwin Drood” to Wilkie Collins’s “The Moonstone” and Conan Doyle’s “The Sign of Four” and “The Mystery of Cloomber”. (shrink)

This article focuses on the problem of criminal liability for unlawful engagement in economic activities, analyses the emergence and development of this norm in criminal law and the ways of its optimal explanation. Special attention is paid to the problem of identification of illegality of activities, based on specific tax and economic regulation. The study concludes that criminal liability must be limited to a violation of fundamental requirements for the legality of business, and does not include particular abuses occurring in (...) legal business. The author also deals with the criteria of delimitation of criminal and administrative liability for unlawful engagement in economic activities. Under Article 202(1) of the Criminal Code of the Republic of Lithuania, application of criminal liability is limited by two alternative conditions: either a person illegally undertakes activity in entrepreneurial way or on a large scale. According to the paper, the above-mentioned regulation lacks clarity and leads to the risk of unfounded prosecutions. The author gives practical examples, where on the basis of inexplicable criterion of an entrepreneurial way, criminal charges are filed in respect of petty economic activities. Such practice is incompatible with the purposes and principles of criminal law. The paper proposes to delete the criterion of an entrepreneurial way from the definition, leaving the possibility of criminal liability only in case of large scale illegal economic activity. The article also substantiates the conclusion that prohibited business activities provided for in Article 202(2) of the Criminal Code actually defies logical explanation and should be removed from the regulation. At the end of the article, the author offers a sample of optimal legal wording of unlawful engagement in economic activities in criminal law. (shrink)

This paper discusses the criminalization of scientific misconduct, as discussed and defended in the bioethics literature. In doing so it argues against the claim that fabrication, falsification and plagiarism (FFP) together identify the most serious forms of misconduct, which hence ought to be criminalized, whereas other forms of misconduct should not. Drawing the line strictly at FFP is problematic both in terms of what is included and what is excluded. It is also argued that the criminalization of scientific (...) misconduct, despite its anticipated benefits, is at risk of giving the false impression that dubious practices falling outside the legal regulation “do not count”. Some doubts are also raised concerning whether criminalization of the most serious forms of misconduct will lower the burdens for universities or successfully increase research integrity. Rather, with or without criminalization, other measures must be taken and are probably more important in order to foster a more healthy research environment. (shrink)

Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.

In _Criminalizing Sex_, Stuart P Green aims to provide a unified liberal theory of sexual offenses law. Green’s strategy is to provide a rational reconstruction of sexual offenses law that centres consent. In this article, I raise some doubts about whether Green fully succeeds in his aim. Nevertheless, _Criminalizing Sex_ is an impressive book, and essential reading for anyone interested in the liberal foundations of sexual offenses law.

Soon it may be possible to promote the rehabilitation of criminal offenders through _neurointerventions_ (interventions which exert direct physical, chemical or biological effects on the brain). Some jurisdictions already utilise neurointerventions to diminish the risk of sexual or drug-related reoffending. And investigation is underway into several other neurointerventions that might also have rehabilitative applications within criminal justice—for example, pharmacotherapy to reduce aggression or impulsivity. Ethical debate on the use of neurointerventions to facilitate rehabilitation—henceforth ‘neurorehabilitation’—has proceeded on two assumptions: that we (...) have instrumental reasons for employing neurorehabilitation (e.g. because it helps protect the public from crime); and that its permissibility depends upon whether its use unjustifiably infringes offenders’ rights. This paper defends a different, hitherto neglected thought. I argue we have rights-based reasons to offer neurorehabilitation to offenders—in other words, that offenders have a _moral right_ to neurorehabilitation. I identify three considerations which support a moral right to conventional rehabilitative interventions—(1) as a countermeasure to the debilitating side-effects of punishment; (2) as a derivative right of the right to hope for renewed liberty; and (3) as compensation for structural injustice. I argue these considerations extend to support a moral right to neurorehabilitation in the following instance: when neurorehabilitation would be part of the _most effective_ package for facilitating rehabilitation, and can be carried out at reasonable cost. I then defend my argument against potential objections, including the objection that neurorehabilitation is a bad option for offenders to have and the charge of over-medicalisation. (shrink)

Criminal law exists in order to punish people for their culpable misconducts, whenever there is a culpable wrong one should criminalize and punish. A distinctive moral voice: the criminal wrong that we don’t find beyond is revealed and any normative ethical enquiry should point out, as a specific axiological and moral category related to such evil conducts. Why not suppose an unconscious genesis of it in the sensitive faculties, because there is a constitution of what man is, learned through history? (...) Eduard von Hartmann thinks that the normative role of self-control functions in different moral principles. This is valid also in criminal ethics. Thinking the process what begins to be morally relevant, as morally criminal is presented as “ruse of the conscious will”: pre ethically, by specific psychological drives, and metaphysically by character formation. (shrink)

The paper seeks to analyse how two domestic courts decided criminal trials under circumstances of emotional mobilisation and political stress. Decisions from Argentina after 1983 and Romania after Ceausescu’s dictatorship illustrate how citizens’ affects influence courts’ choices within penal cases. Both cases show how the judiciary had to enter a dialogue with resentful and indignant claims for redress. However, while the Argentinean court filtered emotions through the strainer of equal respect and thus pushed the cause of democratic justice ahead, the (...) Romanian case serves as a cautionary tale about how not to correct injustices through criminal law. These two cases provide us with important lessons about the obstacles, but also the opportunities associated with public emotions during periods of radical political transformation. (shrink)

Criminal offenders are sometimes required, by the institutions of criminal justice, to undergo medical interventions intended to promote rehabilitation. Ethical debate regarding this practice has largely proceeded on the assumption that medical interventions may only permissibly be administered to criminal offenders with their consent. In this article I challenge this assumption by suggesting that committing a crime might render one morally liable to certain forms of medical intervention. I then consider whether it is possible to respond persuasively to this challenge (...) by invoking the right to bodily integrity. I argue that it is not. (shrink)

What place, if any, ought cultural considerations have when we blame and punish in the criminal law? Bringing together political and legal theorists Criminal Law and Cultural Diversity offers original and diverse discussions that go to the heart of both legal and political debates about multiculturalism, human agency, and responsibility.

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws in (...) action. (shrink)

Criminal punishments are commonly imposed on those convicted of harming others, yet punishment is itself necessarily harmful. Although we suppose that there is a moral difference between the two types of harming, the precise nature of this difference is not at all obvious. The problem here can be approached by asking this question: in what situations is harming others most obviously morally justified? And the answer, intuitively, is that these are situations involving self-defense against culpable aggression. This intuition provides a (...) point of departure for explaining how criminal punishment is morally justifiable as an instrument of societal-defense. Developing this explanation requires identifying the principle of distributive justice that justifies harming others in individual self-defense, and then applying that principle to defensive actions by societies. (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal responsibility and directed more at (...) empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

Artificial intelligence is increasingly permeating many types of high-stake societal decision-making such as the work at the criminal courts. Various types of algorithmic tools have already been introduced into sentencing. This article concerns the use of algorithms designed to deliver sentence recommendations. More precisely, it is considered how one should determine whether one type of sentencing algorithm (e.g., a model based on machine learning) would be ethically preferable to another type of sentencing algorithm (e.g., a model based on old-fashioned programming). (...) Whether the implementation of sentencing algorithms is ethically desirable obviously depends upon various questions. For instance, some of the traditional issues that have received considerable attention are algorithmic biases and lack of transparency. However, the purpose of this article is to direct attention to a further challenge that has not yet been considered in the discussion of sentencing algorithms. That is, even if is assumed that the traditional challenges concerning biases, transparency, and cost-efficiency have all been solved or proven insubstantial, there will be a further serious challenge associated with the comparison of sentencing algorithms; namely, that we do not yet possess an ethically plausible and applicable criterion for assessing how well sentencing algorithms are performing. (shrink)

Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake -- Mistake of (...) law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)

This is a review of Larry Alexander and Kim Ferzan’s _Reflections on Crime and Culpability_, a sequel to the authors’ _Crime and Culpability_. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing legal (...) theory, some of which are explored in this essay. (shrink)

Behaviour, including criminal behaviour, takes place in lived contexts of embodied action and experience. The way in which abstract models of selfhood efface the individual as a unique, living being is a central aspect of the ‘ethical-other’ debate; if an individual is modelled as abstracted from this ‘living’ context, that individual cannot be properly or meaningfully linked with his or her behaviour, and thus cannot justly be understood as responsible. The dominant rational choice models of criminal identity in legal theory (...) involve at least a partial abstraction of this ‘unethical’ type by prioritising the rational will over the more fluid dimensions of lived reality. From a phenomenological perspective, an approach of ‘restlessness’ is proposed which precludes the development of settled or general abstract categories, and can thus move us closer to an ethical understanding of living individuals on a theoretical level. Although such a move may initially seem to threaten criminal justice with an irrational nihilism, by maintaining awareness of the irreducibility of ‘living’ reality a restless theoretical understanding of moral selfhood may be able to shape or underpin the attribution of responsibility in more practical or substantive contexts without succumbing to meaninglessness. (shrink)

In the history of Lithuania during the period between the two world wars, the criminal law sources were received from Russia (Criminal Statute of 1903) and adapted for the requirements of those States, where the conditions of life were notably different from those in Lithuania. The Criminal Statute of 1903 was the main criminal law source in Lithuania until 1940. Prior to the second occupation—the return of the Soviets—tens of thousands of Lithuanian citizens fled to the West, including a very (...) large segment of the intelligentsia, university lecturers, professors and many lawyers. The lawyers in emigration were very socially active and founded a paper of law research—“Teisininkų žinios.” The article deals with the works and research of the emigration lawyers B. Nemickas, V. Vaitkevičius, P. Raulinaitis,V. Rastenis, D. Krivickas and others, in which they deal with the problem of Soviet criminal law. The lawyers analyse the sources of Soviet criminal law, which was the criminal law source in occupied Lithuania. (shrink)

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

Criminal law as public law -- Criminal law as public law -- Criminal law as public law -- Mass incarceration and the theory of punishment -- Reasons to criminalize -- Formalism and pragmatism in criminal procedure -- Responsibility without resentment.

Over the last twenty years there has been an explosion of interest in ‘criminal justice’, generating a wealth of research incorporating law, philosophy, political theory, sociology and other disciplines. The fascination of criminal justice flows from the cultural prominence of criminalization as a form of social control. The news media in Australia, Britain or the United States provide plentiful evidence of the extent to which crime, fear of crime, government criminal justice policy and the activities of the more visible (...) enforcement agencies such as the police preoccupy many contemporary Western societies. At the international level, too, criminal justice is increasingly salient. Moreover, the status of criminal justice as a particularly coercive and costly governmental repertoire claims our attention. Yet the diversity of practices encompassed within the notion of ‘criminal justice’, and the variety of practical, philosophical and political questions which they raise, make criminal justice an elusive subject. All too often, the general ‘theories of criminal justice’ which purport to make sense of the concrete practices illuminated by empirical research turn out to be too abstract and/or too narrow in focus to fulfil that promise. The purpose of this chapter is to provide a framework which might enable us to make sense of criminal justice without imposing an unrealistically rigid or unduly circumscribed model on the complicated processes with which we are concerned. (shrink)

The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of “human dignity as an objective value” and the assumption that the meaning of human dignity can be explained by referring to Kant’s moral philosophy, human dignity violations are characterized as severe humiliations.

This work delves into the nature of the morality of the judges and prosecutors of the ICC, who are instrumental in perpetuating the flawed concept of international criminal vacation. This work does not imply distrust in the capacities of the prosecutors or judges of the Court. However, if they are not morally and legally accountable for safeguarding the survival and security of the rights of victims, then who is? This volume places a significant emphasis on an ethical and philosophical understanding (...) of the system of international criminal justice and how the system of vacation for major criminals has become a mechanism against the universal rights of men across the globe. It is in these circumstances that we become instruments of political power, devoid of morality and humanity, driven solely by the evil greed of governments that disregard the dignity of other nations and relegate their victims to a state of insignificance. (shrink)

In 2021, there was a significant amendment to the legislation on medical experimentation. In particular, Chapter 4 of the Law of December 5, 1996 on the Profession of Physician and Dentist (Journal of Laws 2023, item 1516) was amended, in which the prerequisites of legally relevant consent given by the participant in the experiment or by other entities that express a position on their behalf were specified. In addition, procedures related to the opinion of the research project by the so-called (...) bioethics committee were described. Its members were obliged to maintain confidentiality with regard to information obtained in connection with the fulfilled function. These norms became protected by criminal sanctions, set forth in the amended Article 58 of the law. New generic types of criminal acts were introduced, primarily aimed at protecting the participant's right to self-determination, the voluntariness of participation in the experiment, and the confidentiality of data submitted by the experimenters in their proposals to bioethics committees. These norms fill in the gaps that have existed so far in the criminal law protection of these values. The article systematically discusses the generic types of criminal acts that have been penalized in Article 58 (4) to (6) of the referenced law. Their object of protection, object side, subject, subject side, punishability and potential confluence with other regulations are presented. The historical-dogmatic justification for the introduction of these regulations is also shown. (shrink)

A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or ‘tracing’ approach, i.e. an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it can’t account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it can’t account for why, when considering whether a defendant is negligent, what counts as a risk should be (...) assessed relative to the defendant’s evidence. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws in (...) action. (shrink)

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment provided by (...) the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

This chapter contains section titled: The Need for a Theory of Criminalization The Nature of the Criminal Law Inadequate Theories of Criminalization A Better Approach to Criminalization References Further Reading.

Written by leading philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.