The paper deals with the notion of guilt according to Heidegger’s philosophy and its repercussions for the understanding of guilt according to criminal law doctrine and theory. Heidegger’s notion on guilt is tantamount to Dasein’s incapacity to exhaust all its existential possibilities, whereas legal guilt has to do only with man’s legal indebtedness, which is an aspect of inauthenticity, a deficient mode of ontological responsibility. This does not mean, though, sheer amoralism or apologetics to violence. In (...) late Heidegger one may discern traces of an ontological ethics, which refers to Dasein’s attunement to Being and especially to the sparing and healing of the Fourfold as these are coming to presence through poetic dwelling; through, that is, an authentic contact with the Uncanny, meaning a radical exposure to Being’s enigmatic hiddenness, the endurance in front of the abyss of Nothingness. In this framework there remains no space for assuming any moral-juridical responsibility, because Dasein is predestined to err constantly due to the ruptures and turnings of Being’s history. Legal blameworthiness is thus obsolete because, injustice being according to Heidegger the dis-jointure of Being’s order, there is ontologically no imputable ‘legal’ crime; there is only Dasein’s eventful projecting-opening within errancy. Whether though this notion of ‘Being’ is a new ‘arche’ to be superseded emerges then as the crucial question. To regain any non-metaphysical notion of guilt is after Heidegger only possible through a theoretical move which cannot ignore his legacy but also has to go beyond the Master. (shrink)

How does the human animal who thinks and loves relate to criminal justice? This essay takes up the idea of a moral psychology of guilt promoted by Bernard Williams and Herbert Morris. Against modern liberal society’s ‘peculiar’ legal morality of voluntary responsibility, it pursues Morris’s ethical account of guilt as involving atonement and identification with others. Thinking of guilt in line with Morris, and linking it with the idea of moral psychology, takes the essay to Freud’s metapsychology (...) in Civilization and Its Discontents. Two conflicting routes to guilt are noted in Freud, one involving internalisation of external anger to suppress destructive instincts, the other loving identification with others in the process of self-formation. This second route is developed through the psychoanalytic thought of Hans Loewald and Jonathan Lear. Following Loewald, the moral psychology of self-formation makes loving identification with others the root of responsibility, guilt and atonement. Following Lear, the moral psychology of guilt developed on these lines renders psychoanalysis part of a broadly understood philosophical project following Aristotelian and Socratic principles. Underlying Morris’s account of guilt is the possibility of ‘prospective identification’, understood as the moral and psychological ground of guilt and reconciliation. This is the rational core of criminal justice, which maintains an uneasy relationship with law’s ‘peculiar’ morality. (shrink)

Feelings of guilt are human emotions that may arise if a person committed an action that contradicts basic moral mores or failed to commit an action that is considered moral according to their ethical standards and values. Psychological scholarship distinguishes between altruistic guilt (AG) and deontological guilt (DG). AG results from having caused harm to an innocent victim, either by acting or failing to act, whereas DG is caused by violating a moral principle. Although physicians may be (...) expected to experience frequent feelings of guilt in their demanding and intensive work, it is surprising to find that this issue has not been explored in the professional literature on medical ethics. To that end, we conducted a qualitative study that included personal in-depth interviews with Sunni Muslim gynaecologists. These doctors provide underground infertility care and perform religiously forbidden treatments involving sex selection and gamete donation. They opened their hearts and spoke about the emotionally taxing pangs of conscience they suffer. Analysing their narratives led us to characterize their feelings of guilt as DG. We discuss the causes for their plight and the way they cope with it, compare DG to the concept of moral distress, and call for future research on clinicians’ feelings of guilt and pangs of conscience. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Guilt History:Benjamin's Sketch "Capitalism as Religion"Werner Hamacher (bio)Translated by Kirk Wetters (bio)History as Exchange EconomySince history cannot be conceived as a chain of events produced by mechanical causation, it must be thought of as a connection between occurrences that meets at least two conditions: first that it admit indeterminacy and thus freedom, and second that it nonetheless be demonstrable in determinate occurrences and in the distinct form of (...) their coherence. Relations can thus be called historical and can be recognized as historical only if they are determined by neither necessity nor chance, and if their causality is of a different order than the mechanical. The temporal structure of history can therefore be characterized on the one hand by the distinct connection of its elements—and on the other hand by the dissolution of all connections that do not assist these elements in achieving their independence.A temporal nexus that clearly does not satisfy these conflicting requirements has been characterized in one of the oldest texts of occidental philosophy as the time of guilt. According to the sentence of Anaximander (from about 500 BC), handed down by Simplicius in his commentary (530 AD) on Aristotle's Physics, the origin and end of all things is subordinated to the law of necessity (katà tó kreòn). "They must pay penance and be judged for their injustice, according to the order of time (katà tèn tou chrónou táxin)"—so the fragment reads in the translation offered by Nietzsche in his treatise "Philosophy in the Tragic Age of the Greeks." According to Anaximander, the sequence of time orders the rise and fall of all things and orders them in accordance with the law of guilt and punishment so that becoming (génesis) is a guilt (adikía) that must be expiated in perishing. Time and more precisely its táxis, the positing of time, is thought in Anaximander's sentence as an order of guilt and retribution, debt and payback. It is a time of economy in the sense that it is the time of law—and precisely a law that is valid for all beings, a táxis, a decree, an ordinance and an ordering—in which the unavoidable incurring of guilt is atoned in an equivalent penance that is just as unavoidable. The strict coherence of guilt and penance is ascertained by the principle of their equivalence. Time is therefore conceived here as a double process of coming into being and perishing, [End Page 81] a process that occurs in such a way that the genesis is erased in its passing away—so that time is thus erased by time itself.In Anaximander's sentence, however, time is not only the double-process of coming into being and passing away, it is—as a táxis—the common and constantly enduring medium of the exchange of the contrary but equivalent motions of coming into being and perishing. It is the time of the quid pro quo of everything that is generated and passes away within time. Its measure is a justice that represents itself as a táxis and thereby as the positing and the law of all becoming and vanishing, the law of physis and its demise as an onto-economic law. This taxiological order of time places every realm of the natural and human world under a law of substitution without exception; this also allows ethical, juridical, and economic concepts to substitute for one another within this order. The ethical dimension of justice, thus circumscribed by the order of time, is reduced to the juridical dimension of the decree, and both now define themselves according to the calculus of "an exchange economy in an eternally unchanging household of nature."1 It can only, however, be a matter of an ethics of time to the extent that this ethics, already juridified and economized, is subordinated to the schema of exchange, trade, and the equivalence of guilt and retribution. The time of history, ethical time, is thus interpreted in Anaximander's sentence as a normative time of inculpation and expiation. Whatever enters this táxis of time is thereby already guilty and can... (shrink)

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt (...) of nations should also entail collective punishment. (shrink)

Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At the end of trial, the defendant is pronounced either “guilty” or “not guilty” of the charges made against her, excluding the possibility of judgment of degree. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant “probably guilty,” “most certainly guilty,” or “guilty by preponderance of the evidence.” Nor can decision makers qualify the verdict to (...) reflect normative or legal ambiguities. Findings of guilt are construed as asserting factual and legal truths. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. The prevailing decision-making model, with its ‘on-off’ formulation of guilt, is so broadly established that it is considered an axiom— but there is nothing natural or pre-political about it, nor about the derivative distribution of punishment. This Article attempts to expose the hidden potential rooted in the construal of criminal verdicts as judgments of degree, by drawing three hypothetical manifestations of a linear conceptualization of conviction and punishment in the criminal trial and plea-bargaining arena. It also offers a normative assessment of converting criminal verdicts from categorical decisions to continuities. (shrink)

We live in a morally flawed world. Our lives are complicated by what other people do, and by the harms that flow from our social, economic and political institutions. Our relations as individuals to these collective harms constitute the domain of complicity. This book examines the relationship between collective responsibility and individual guilt. It presents a rigorous philosophical account of the nature of our relations to the social groups in which we participate, and uses that account in a discussion (...) of contemporary moral theory. Christopher Kutz shows that the two prevailing theories of moral philosophy, Kantianism and consequentialism, both have difficulties resolving problems of complicity. He then argues for a richer theory of accountability in which any real understanding of collective action not only allows but demands individual responsibility. (shrink)

The emotions of shame and guilt have recently appeared in debates concerning legal punishment, in particular in the context of so called shaming and guilting penalties. The bulk of the discussion, however, has focussed on the justification of such penalties. The focus of this article is broader than that. My aim is to offer an analysis of the concept of legal punishment that sheds light on the possible connections between punishing practices such as shaming and guilting penalties, on the (...) one hand, and emotions such as guilt, shame, and perhaps humiliation, on the other. I␣contend that this analysis enhances our understanding of the various theories of punishment that populate this part of criminal law theory and thereby sharpens the critical tools needed to assess them. My general conclusion is that, in different ways, all of the theories we encounter in this area can benefit from paying renewed attention to the nature of the connection between the state’s act of punishing and its expected or perceived emotional effect on the individual. (shrink)

The research is developed with the use of deductive and descriptive analytical methods used to obtain information on doctrine and jurisprudence and to establish and describe specific situations in the field of Ecuadorian Medical Law respectively. The main objective is to provide scientific and doctrinal tools to understand guilt in cases of omissive conduct in Ecuadorian medical practice, as well as its comparison with other countries such as Colombia, Mexico, Cuba and Argentina, the results of the research show that (...) the doctrine in the relationship to the categories of Omission, Guilt, Guarantor Position and Permitted Risk is broad and is based on scientific-doctrinal advances of the Normative Conception of Guilt comprised between 1995 and 2022. To establish useful criteria and conclusions, the discussion focuses on defining what is considered “guilty” in the context of Medical Law, highlighting the importance of elements such as the objective duty, the harmful result and the analysis of the concomitant circumstances, emphasizing the importance of considering the context and development of the facts in cases of omissive conduct in medicine and not only the result. In relation to omissions in criminal law, a distinction is made between proper and improper and finally, it concludes by suggesting the modification of article 146 of the Organic Integral Criminal Code to guarantee due process and a effective judicial protection in matters related to health in Ecuador, specifically with regard to causality in cases of omissive conduct. (shrink)

From the foreword by Steve Schlissel: "Rushdoony sounds the clarion call of liberty for all who remain oppressed by Christian leaders who wrongfully lord it over the souls of God's righteous ones... I pray that the entire book will not only instruct you in the method and content of a Biblical worldview, but actually bring you further into the glorious freedom of the children of God. Those who walk in wisdom's ways become immune to the politics of guilt and (...) pity." Man has trampled God's law under foot. In doing so, he has misused himself and trampled on the God-given rights of his fellowman. He is conscious of his guilt, and seeks self-justification through self-atonement. The author makes it perfectly clear that there is only one way of escape from present slough and despair. It is in turning in heartfelt repentance to God who has already provided atonement in the sacrifice of His Son. And true repentance includes a return to the doing of God's will as revealed in God's Word, the Bible. (shrink)

Criminal defendants cannot be punished unless found guilty “beyond a reasonable doubt”. Under probabilistic accounts, this means that the probability of guilt given the evidence is above a certain numerical threshold, such as 0.9. Under psychological accounts, by contrast, what is essential is that a factfinder reaches a certain psychological attitude toward guilt, such as certainty or unwavering belief, when contemplating the evidence. An adequate account should provide a normative explanation for why guilt BARD warrants punishment. Psychological (...) accounts are more likely to meet this challenge than probabilistic, it is argued. The permissibility of punishment is likely to be relative to the cognitive attitudes of the punisher, but not to the conditional probability of guilt in light of the evidence. (shrink)

In this article, I examine the relevance and desirability of shame and guilt to restorative justice conferences. I argue that a careful study of the psychology of shame and guilt reveals that both emotions possess traits that can be desirable and traits that can be undesirable for restoration. More in particular, having presented the aims of restorative justice, the importance of face-to-face conferences in reaching these aims, the emotional dynamics that take place within such conferences, and the relevant (...) parts of the empirical psychology of shame and guilt, I argue that restorative justice practitioners have to take account of a rather more complex picture than it had hitherto been thought. Restorative conferences are not simply about "shame management," though practitioners must certainly avoid shaming and humiliation. Given the nature of shame, guilt, and restorative conferences, it is not possible to provide a single concrete precept applicable to all restorative conferences. The successful holding of conferences depends in large part on the cultural and situational specificities at hand. The latter include among others knowledge of the perceived relations standing between victim and offender as well as the affective specificities of the individuals involved. (shrink)

Proponents of punishing states often claim that such punishment would not distribute to members of the state, and so it would not subject innocent citizens – those who did not participate in the crimes, or dissented, or even were among the victims – to guilt by association. This essay examines three features of state punishment that might be said not to distribute to citizens: it is burdensome, it is intentionally so, and it expresses social condemnation. Ultimately, I contend that (...) when a state is punished, the burdens do distribute to citizens as intended, condemning burdens – that is, as punishment. Thus the nondistribution of punishment thesis fails as a response to the guilt-by-association objection. (shrink)

Beginning with a brief presentation of the historical data and conceptual issues that have led to the emergence of the doctrine of the notion of Transitional Justice, I will describe the orientation adopted in two paradigmatic historical contexts, the Nuremberg trial at the end of the Second World War and the post-apartheid reconciliation process in South Africa. Supported by documents from International Human Rights Law and other international legal sources (Rome Statute) I will then offer a provisional definition of what (...) I call a Critical Transitional Justice. The conclusion highlights how the relationship between retrospective and prospective responsibility today is not exclusionary: as central principles of Critical Transitional Justice, they contribute in conferring normative legitimacy to transformative processes of adapting the international system to compliance to general principles of human rights. (shrink)

America is at war with terrorism. Terrorists must be brought to justice.We hear these phrases together so often that we rarely pause to reflect on the dramatic differences between the demands of war and the demands of justice, differences so deep that the pursuit of one often comes at the expense of the other. In this book, one of the country's most important legal thinkers brings much-needed clarity to the still unfolding debates about how to pursue war and justice in (...) the age of terrorism. George Fletcher also draws on his rare ability to combine insights from history, philosophy, literature, and law to place these debates in a rich cultural context. He seeks to explain why Americans--for so many years cynical about war--have recently found war so appealing. He finds the answer in a revival of Romanticism, a growing desire in the post-Vietnam era to identify with grand causes and to put nations at the center of ideas about glory and guilt.Fletcher opens with unsettling questions about the nature of terrorism, war, and justice, showing how dangerously slippery the concepts can be. He argues that those sympathetic to war are heirs to the ideals of Byron, Fichte, and other Romantics in their belief that nations--not just individuals--must uphold honor and be held accountable for crimes. Fletcher writes that ideas about collective glory and guilt are far more plausible and widespread than liberal individualists typically recognize. But as he traces the implications of the Romantic mindset for debates about war crimes, treason, military tribunals, and genocide, he also shows that losing oneself in a grand cause can all too easily lead to moral catastrophe.A work of extraordinary intellectual power and relevance, the book will change how we think not only about world events, but about the conflicting individualist and collective impulses that tear at all of us. (shrink)

Jurors customarily do their work with very little by way of instruction from the court, other than about the law. This suggests that they enter the jury room with the relevant cognitive and interactional tools at the ready, drawn from everyday life. This paper focuses on a specific conversational device jurors use to do their work: conditional-contrastive inculpations, whereby the defendant’s actions are compared unfavorably to what a normal, innocent person would have done, with the implication that the discrepancy indicates (...) guilt. We examine the logic, variants, sequential precursors, and immediate consequences of this phenomenon in two real-life American criminal juries deliberating the same charges. This study offers a rare glimpse into the operation of real juries, and specifically the way in which they appropriate a practice from ordinary conversation in order to perform the unordinary work demanded of them by the legal system. (shrink)

What does it mean to be responsible for our actions? In this brief and elegant study, Giorgio Agamben traces our most profound moral intuitions back to their roots in the sphere of law and punishment. Moral accountability, human free agency, and even the very concept of cause and effect all find their origin in the language of the trial, which Western philosophy and theology both transform into the paradigm for all of human life. In his search for a way out (...) of this destructive paradigm, Agamben not only draws on minority opinions within the Western tradition but engages at length with Buddhist texts and concepts for the first time. In sum, Karman deepens and rearticulates some of Agamben's core insights while breaking significant new ground. (shrink)

According to the Conscience Principle, it is never morally permissible to act contrary to conscience. The plausibility of this being a genuine moral principle depends on what conscience is, whether it can be mistaken, and what its role is in general moral psychology. Thomas Aquinas endorses and defends a unique version of the Conscience Principle. What’s especially interesting about his unorthodox (for his time) view on conscience is that it seems to split the difference between the views we might expect (...) to support the Conscience Principle: On the one hand, thoroughgoing subjectivism on which all moral facts and obligations are a function of agents’ mental states, and on the other hand, objectivist intuitionism on which there is an external moral law but a faculty of conscience gives us inerrant access to it. Aquinas claims that there are objective moral truths, that conscience fallibly represents those truths, and yet, conscience always generates moral obligations, whether it is correct or incorrect. Aquinas’s view will strike many initially as puzzling, perhaps even incoherent. To make sense of it, we must understand that for Aquinas the Conscience Principle is not just one moral principle among many; instead, it falls out of a novel and philosophically powerful metaethical view of moral obligations (or what we might call requiring moral reasons). (shrink)

Douglas Husak’s book is an intelligent, wide-ranging exploration of the legal principle ‘ignorance of law is no excuse’. This principle is one of the few pieces of legal doctrine known by many regular folks, along with the criminal standard of proof ‘beyond a reasonable doubt’. The traditional approach to the doctrine might be explained in this way: in some cases, ignorance of the law fails to excuse offenders from culpability because as a matter of policy we feel they ought to (...) have known the law governing their behaviour. Placing upon citizens the responsibility to know the law is good policy because it may increase both knowledge of law (by inspiring persons considering questionable action to investigate legal rules, etc.) and law-abiding behaviour (by dissuading those who discover their possible act is illegal from acting). Although many believe the criminal law’s primary purpose is state-imposed backwards-looking ‘just deserts’ for moral wrongs, the law also serves to accomplish forward-looking aims such as enhancing moral agency and decreasing crime. From this perspective, the principle that ignorance of the law does not excuse contributes to rule of law and social order by encouraging awareness of legal rules. Husak’s position on ignorance of law is sometimes difficult to discern amongst the detailed critique and commentary on competing views that occupy most of the first 100 pages. In the end, Husak bucks a forward-looking account of the principle and concludes that ignorance of the law – or more exactly, ignorance of the law related to ignorance of the morality underpinning the law – ought to serve as an excuse to criminal guilt in most cases. Further, he claims ignorance of law ought to excuse in the same way that that ignorance of an important fact regarding one’s crime excuses. That he is mistaken regarding an important fact about his crime matters to a defendant’s blameworthiness – e.g. if the defendant kills in self-defence, mistaking the toy gun their victim is carrying with a real gun. A person who honestly believes they are in immediate danger from an armed aggressor is less than fully blameworthy for killing that aggressor even if they were mistaken about the threat. Similarly, knowledge or ignorance that some act is morally wrong clearly matters to moral blameworthiness, says Husak: other things being equal, a person who is ignorant of the moral wrongness of her act is less blameworthy than someone who is aware that what she is doing is wrong. Where ignorance of that an action violates a criminal law is related to ignorance regarding the morality of the act, a person is less than fully culpable. (shrink)

The state's use of the threat, and imposition, of punishments to regulate conduct is thought (or at least said) by many to be legitimised by the idea that the criminal law's burdens only fall on those who are blameworthy for their conduct. However, the formal concept of 'blameworthiness' needs to be made substantive. This puts various ideas regarding the criminal law's person at the heart of debates about blame, guilt, and responsibility. How is the criminal law's person constructed, by (...) whom, and with what disciplinary norms? How is it threatened by new 'knowledge', and how do those threats play out amongst the various stakeholders who claim the criminal law's person as 'theirs'? To address these and cognate questions, this volume brings together an international group of academics to engage with the criminal law's person from a range of disciplinary perspectives. (shrink)

abstract During the current round of fighting in the Middle East, Israel has provoked considerable controversy as it turned to targeted killings or assassination to battle militants. While assassination has met with disfavour among traditional observers, commentators have, more recently, sought to justify targeted killings with an appeal to both self‐defence and law enforcement. While each paradigm allows the use of lethal force, they are fundamentally incompatible, the former stipulating moral innocence and the latter demanding the presumption of criminal (...) class='Hi'>guilt. Putting aside the paradigm of law enforcement which demands due process and forbids extra‐judicial execution, the only possible avenue for justifying named killings lies in self‐defence. While named killings might be defensible on the grounds that there are no other ways to disable combatants when they fight without uniforms, the costs, including the cost of targeted killing emerging as an acceptable convention in its own right, should be sufficient to view the practice with a good deal of caution. (shrink)

Recent stories of corporate insiders avoiding losses and, in some cases, generating enormous personal profits as their companies crumbled have led investors to question the integrity of American business and the fairness of the United States stock markets. The SEC tries to ensure the fairness of the stock markets by making and enforcing laws against unfair practices such as insider trading. In the United States, when insiders trade stock based on non-public information, they have broken the law and betrayed the (...) trust that has been placed in them.This study used student subjects to test the relationship between the likelihood of trading based on insider information and subjective probabilities of deterrents and motivations for insider trading. Expected gain, guilt, cynicism, and fairness of laws were the determinants that had a significant relationship with the intent to trade based on insider information. This study also found support for prospect theory with regard to insider trading. The results indicate that subjects are more likely to trade based on insider information to avoid a loss than to achieve an abnormal gain. The study also finds evidence of social desirability response bias. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such legal measure. According (...) to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

The papers in this volume focus on two central issues in the philosophy of law, the relationship between law and morality, and crime and punishment. In the essay that gives the title to this volume, it is argued that, although in many legal systems there are in fact significant connections between law and morality, these connections are not conceptually or logically necessary. They depend on various social practices. Ronald Dworkin's famous attempt to undermine the legal positivist's separation of law from (...) morality is rejected, and it is argued that Dworkin's own positive theory of law may indeed be quite compatible with certain versions of legal positivism. Other essays explore the notion of a wicked legal system, the rule of law, and various perspectives on the nature of law. The essays on crime and punishment discuss the theory and practice of punishment. They extend the work done in the author's earlier book, "Crime, Guilt and Punishment". They reject a purely retributive justification of punishment, in spite of the increasing sophistication in its recent formulations. (shrink)

I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in the idea (...) of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws. (shrink)

Are there universal values of right and wrong, good and bad, shared by virtually every human? The tradition of natural law argues that there is. Drawing on the work of psychoanalyst Melanie Klein, whose analyses have touched upon issues related to original sin, trespass, guilt, and salvation through reparation, in this 2006 book C. Fred Alford adds an extra dimension to this argument: we know natural law to be true because we have hated before we have loved and have (...) wished to destroy before we have wanted to create. Natural law is built upon the desire to make reparation for the goodness we have destroyed, or have longed to destroy. Through reparation, we earn salvation from the most hateful part of ourselves, that which would destroy what we know to be good. (shrink)

Are there universal values of right and wrong, good and bad, shared by virtually every human? The tradition of natural law argues that there is. Drawing on the work of psychoanalyst Melanie Klein, whose analyses have touched upon issues related to original sin, trespass, guilt, and salvation through reparation, in this 2006 book C. Fred Alford adds an extra dimension to this argument: we know natural law to be true because we have hated before we have loved and have (...) wished to destroy before we have wanted to create. Natural law is built upon the desire to make reparation for the goodness we have destroyed, or have longed to destroy. Through reparation, we earn salvation from the most hateful part of ourselves, that which would destroy what we know to be good. (shrink)

This chapter contains sections titled: Further reading.

Emojis have been appearing more and more frequently in court cases since at least 2015, used as evidence for or against intent to commit a crime or as signs of a defendant’s consciousness of guilt. They have also become part of an ever-expanding visual lexicon of aggression used by individuals and gangs for making threats or planning criminal activities. This essay surveys relevant cases and studies since 2015 that concern this aspect of emoji communication—an aspect that was hardly anticipated (...) by the congeners of these picture words, who introduced them as communicative tools to foster benign interactions in the global village, not as weapons of violence and criminality. The main conclusions that can be extrapolated from the present review are as follows: emojis can, in fact, no longer be viewed merely as signs designed to engender congenial communication, as was intended by their inventors; they can no longer be excluded as evidence in courtrooms, given their penetration into everyday digital communications; and they require special attention by both legal and criminal investigative practices and institutions. The last point implies the need for a field that can be called simply “emoji forensics.”. (shrink)

Ethicists and legal theorists have proposed models of corporate culpability that shift the standard of guilt determination from vicarious attribution of individual action and intention to an assessment of culture, policies, as well as organizational action and inaction. This paper briefly reviews four prominent models of corporate culpability, arguing that each makes claims that extend well beyond the limits of existing law. As an alternative to these models, a constructive corporate fault is described that relies on both objective and (...) subjective reasonableness judgments. The paper concludes with a consideration of constructive corporate fault in relation to an Accountability model of corporate liability. (shrink)

A central question in the current neurolegal and neuroethical literature is how brain-reading technologies could contribute to criminal justice. Some of these technologies have already been deployed within different criminal justice systems in Europe, including Slovenia, Italy, England and Wales, and the Netherlands, typically to determine guilt, legal responsibility, or recidivism risk. In this regard, the question arises whether brain-reading could permissibly be used against the person's will. To provide adequate legal protection from such non-consensual brain-reading in the European (...) legal context, ethicists have called for the recognition of a novel fundamental legal right to mental privacy. In this paper, we explore whether these ethical calls for recognising a novel legal right to mental privacy are necessary in the European context. We argue that a right to mental privacy could be derived from, or at least developed within in the jurisprudence of the European Court of Human Rights, and that introducing an additional fundamental right to protect against brain-reading is not necessary. What is required, however, is a specification of the implications of existing rights for particular neurotechnologies and purposes. (shrink)

In the first of these two lectures Professor Hart is concerned with certain controversies and changes of attitude towards the question of moral guilt—mens rea,’ the guilty mind’—in criminal proceedings according to English law. There is, on the one hand and at one extreme, the attitude of the McNaughten Rules which excludes guilt only in the case of a ‘defect of reason’; at the other extreme there is the modern position, represented by Lady Wootton according to which the (...) conception of metis rea should be dropped altogether—criminal proceedings are concerned with ‘social hygiene’ and have nothing to do with responsibility: the question of responsibility comes up only after a verdict has been reached in estimating what steps are likely to have the best consequences for the ‘criminal’ and for society. Between these extremes Professor Hart takes a kind of middle course, what he calls ‘a moderate form of the new doctrine’: ‘Under this scheme mens rea would continue to be a necessary condition of liability to be investigated and settled before conviction except so far as it relates to mental abnormality. The innovation would be that the accused person would not be able to adduce any form of mental abnormality as a bar to conviction. The question of his mental abnormality would under this scheme be investigated only after conviction and would primarily be concerned with his present rather than his past mental state’. He admits that there are some practical difficulties against this view, but he does not consider the theoretical difficulty that the theory does away with the principle that criminal conviction must be based on guilt and responsibility. (shrink)

The essays in this collection explore, from philosophical and religious perspectives, a variety of moral emotions and their relationship to punishment and condemnation or to decisions to lessen punishment or condemnation.

Introduction : nothing in common -- Fear -- Guilt -- Law -- Ecstasy -- Experience -- Appendix : nihilism and community.

Freedom of will is crucial to the concept of guilt in criminal law, yet its existence is a major philosophical issue. Since the 17th century, classical mechanics and relativistic physics suggested determinism, negating free will. However, quantum mechanics, emerging in the 1930 s, challenged this deterministic view, leaving the reality of free will debatable. Natural sciences cannot conclusively resolve the free will question, allowing jurisprudence to adopt a normative-functional approach: people must be seen as free to uphold the rule (...) of law. Denying free will would eliminate the concept of guilt in criminal law, a riskier outcome than assuming free will, even if fictional. (shrink)

In literature and the humanities, guilt has the same major importance as in penal law. Due to the anthropocentric legal system, however, guilt is the linchpin par excellence within the framework of penal law. The article confirms this emphasis on guilt through an examination of the constitutional determinants of penal law, the development of the concept of guilt, and also a change in its perspective which has shifted to an emphasis on the purpose of punishment rather (...) than on the reasons for it. Penal law is intended to ensure legal peace and map out a path for reconciliation within society. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:diacritics 34.1 (2004) 3-17 [Access article in PDF] Universal Shylockery Money and Morality in The Merchant of Venice Simon Critchley Tom McCarthy What if Nietzsche were a Jew, and a mean-minded Venetian Jew at that? We'd like to begin with the thought experiment of imagining The Merchant of Venice as a genealogy of morality and imagining Shylock as Nietzsche. What is The Merchant of Venice about? What is at (...) stake in this oddly inside-out drama, where a piece of good old Elizabethan comic Jew-baiting rotates 180 degrees into a devastating study of Christian anti-Semitism only to flip back into what it seemed to deny? Our initial hypothesis is that it is nothing less than an inquiry into the origin of our moral concepts of justice, good and bad, and more particularly guilt, law, mercy, and love. It is here that a link with Nietzsche suggests itself, particularly with the Second Essay of On the Genealogy of Morals.* * *How do we breed an animal with the right to make promises? For Nietzsche, the human being is an originally forgetful creature, like a young child. To make this originally forgetful creature remember requires physical discipline; it behooves punishment. The teaching of morality is never gentle; it never droppeth from heaven like gentle rain. On the contrary, if something is to be retained in memory, it must be burned in. The origin of memory lies in pain and cruelty: "Man could never do without blood, torture and sacrifices when he felt the need to create a memory for himself" [GM 61]. Nietzsche's first, astonishing hypothesis in the Second Essay is that the origin of concepts like responsibility and conscience lies in cruelty—cruelty administered and maintained through a corporal and corporeal regime. Further, as religions are systems of cruelty, all forms of asceticism originate in the same painful place. "Consider the German punishments," Nietzsche proposes—and we all know that there's nothing quite like the German punishments: stoning, breaking on the wheel, piercing with stakes, tearing apart or trampling with horses, boiling in oil, flaying alive, cutting straps from the flesh, smearing the wrongdoer with honey and leaving him to the flies in the blazing sun. As Nietzsche quips, with magnificent understatement, "With the aid of such images and procedures one finally remembers five or six 'I will not's'" [GM 62]. It is on the basis of this burned-in memory of cruelty that good, decent, upright burghers such as ourselves acquired the habit of moral reasoning:Ah, reason, seriousness, mastery over affects, the whole sombre thing called reflection, all these prerogatives and showpieces of man: how dearly they have been bought! How much blood and cruelty lie at the bottom of all "good things." [GM 62] [End Page 3]"Dearly bought": let's hold onto that trope of purchasing. In another extraordinary passage of the Second Essay, Nietzsche explains the origin of thinking itself in terms of economic activity:Setting prices, determining values, contriving equivalences, exchanging—these preoccupied the earliest thinking of man to so great an extent that in a sense they are thinking [das Denken ist]. [GM 70] In the beginning was trade. Human activity begins with exchange, with the to and fro of buying and selling, which are forms of life older than all other social alliances and organization. It is from here, Nietzsche insists, that human beings arrive at the first moral canon of justice:"Everything has its price; all things can be paid for"—the oldest and most naïve moral canon of justice, the beginning of all "good-naturedness," all "fairness," all "good will," all "objectivity" on earth. [GM 70] Which brings us to the origin of das Bewusstsein der Schuld and schlechte Gewissen, the consciousness of guilt and bad conscience. Nietzsche's hypothesis here, and our theme is beginning to come into focus, is that the origin of guilty conscience lies in the relation between a creditor and debtor, Glaubiger und Schuldner. The spiritual concept of guilt, Schuld, originates in the very material concept of Schulden... (shrink)