Pub Date : 2022-05-04DOI: 10.1080/0731129X.2022.2107302
Amit Pundik, Shani Schnitzer, B. Blum
This article deals with the question of which kinds of deceptions vitiate consent to sexual relations. More specifically, it addresses the question of which characteristics of the perpetrator (e.g. their identity, wealth, or marital status), of their relations with the victim (e.g. marriage, long-term intentions), or of the sexual act itself (e.g. protected) vitiate consent when deception is involved. In this proposal, we offer our view on how this question should be answered: the criminalisation of deceptive sex should be cautiously extended to include deception regarding any characteristic of the deceiver or the relationship on which the deceived’s consent was conditional, where the deceiver was aware of this conditionality. To support our proposal, we examine the different definitions of “deceptive sex” and diverse legal approaches taken to its criminalisation in the United Kingdom, Germany, and Israel, and discuss their respective merits and shortcomings. Surprisingly, different jurisdictions take strikingly different stances on these matters. This diversity ranges from the narrow definition of traditional English law (and its more opaque contemporary version in England, Canada, and Israel) to the minimalist approach of the German system. To counter the risk of over-criminalisation inherent in our proposal, we also propose using an offence lighter than rape and criminalising only those deceivers who actively lied and whose actual knowledge of the victim’s hypothetical refusal can be proven beyond reasonable doubt. Overall, while our proposal would cautiously extend the criminalisation of deceptive sex to some types of cases that are currently not criminalised, it would also significantly limit the criminalisation of deceptive sex by enhancing the requirements regarding both the accused’s actus reus and their mens rea.
{"title":"Sex, Lies, and Reasonableness: The Case for Subjectifying the Criminalisation of Deceptive Sex","authors":"Amit Pundik, Shani Schnitzer, B. Blum","doi":"10.1080/0731129X.2022.2107302","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2107302","url":null,"abstract":"This article deals with the question of which kinds of deceptions vitiate consent to sexual relations. More specifically, it addresses the question of which characteristics of the perpetrator (e.g. their identity, wealth, or marital status), of their relations with the victim (e.g. marriage, long-term intentions), or of the sexual act itself (e.g. protected) vitiate consent when deception is involved. In this proposal, we offer our view on how this question should be answered: the criminalisation of deceptive sex should be cautiously extended to include deception regarding any characteristic of the deceiver or the relationship on which the deceived’s consent was conditional, where the deceiver was aware of this conditionality. To support our proposal, we examine the different definitions of “deceptive sex” and diverse legal approaches taken to its criminalisation in the United Kingdom, Germany, and Israel, and discuss their respective merits and shortcomings. Surprisingly, different jurisdictions take strikingly different stances on these matters. This diversity ranges from the narrow definition of traditional English law (and its more opaque contemporary version in England, Canada, and Israel) to the minimalist approach of the German system. To counter the risk of over-criminalisation inherent in our proposal, we also propose using an offence lighter than rape and criminalising only those deceivers who actively lied and whose actual knowledge of the victim’s hypothetical refusal can be proven beyond reasonable doubt. Overall, while our proposal would cautiously extend the criminalisation of deceptive sex to some types of cases that are currently not criminalised, it would also significantly limit the criminalisation of deceptive sex by enhancing the requirements regarding both the accused’s actus reus and their mens rea.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59557658","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/0731129X.2022.2102838
Zachary Hoskins
Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason.
{"title":"Public Reason and the Justification of Punishment","authors":"Zachary Hoskins","doi":"10.1080/0731129X.2022.2102838","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2102838","url":null,"abstract":"Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44921121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/0731129X.2022.2101591
Nicolas Nayfeld
I argue that penal philosophy should focus more on our attitudes towards offenders, since these attitudes can shed new light on theories or principles of punishment (of which they are often expressions) and also play a significant role in changing the face of criminal justice. Building on Strawson’s “Freedom and Resentment,” I define attitudes as certain ways of seeing human beings that logically include or exclude various emotional, behavioral, and linguistic responses, that can be more or less natural, and over which we have some degree of voluntary control. I argue that, understood in this sense, there are broadly speaking six attitudes towards offenders: the retributive, the hostile, the moralistic, the paternalistic, the merciful, and the actuarial. After presenting each of these attitudes, I sum up my analysis by focusing on the Polanski sexual abuse case. I then introduce the concept of second-order attitudes, where egalitarianism is the attitude that consists of taking the same attitude towards all offenders, and particularism is the attitude that consists of adjusting your attitude to each offender. Finally, I briefly explain why a mix of the retributive and the merciful should be our default attitude.
{"title":"The Varieties of Attitudes Towards Offenders","authors":"Nicolas Nayfeld","doi":"10.1080/0731129X.2022.2101591","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2101591","url":null,"abstract":"I argue that penal philosophy should focus more on our attitudes towards offenders, since these attitudes can shed new light on theories or principles of punishment (of which they are often expressions) and also play a significant role in changing the face of criminal justice. Building on Strawson’s “Freedom and Resentment,” I define attitudes as certain ways of seeing human beings that logically include or exclude various emotional, behavioral, and linguistic responses, that can be more or less natural, and over which we have some degree of voluntary control. I argue that, understood in this sense, there are broadly speaking six attitudes towards offenders: the retributive, the hostile, the moralistic, the paternalistic, the merciful, and the actuarial. After presenting each of these attitudes, I sum up my analysis by focusing on the Polanski sexual abuse case. I then introduce the concept of second-order attitudes, where egalitarianism is the attitude that consists of taking the same attitude towards all offenders, and particularism is the attitude that consists of adjusting your attitude to each offender. Finally, I briefly explain why a mix of the retributive and the merciful should be our default attitude.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47084721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/0731129X.2022.2056351
L. Hunt
Policing in many parts of the world—the United States in particular—has embraced an archetypal model: a conception of the police based on the tenets of individuated archetypes, such as the heroic police “warrior” or “guardian.” Such policing has in part motivated moves to (1) a reallocative model: reallocating societal resources such that the police are no longer needed in society (defunding and abolishing) because reform strategies cannot fix the way societal problems become manifest in (archetypal) policing; and (2) an algorithmic model: subsuming policing into technocratic judgements encoded in algorithms through strategies such as predictive policing (mitigating archetypal bias). This paper begins by considering the normative basis of the relationship between political community and policing. It then examines the justification of reallocative and algorithmic models in light of the relationship between political community and police. Given commitments to the depth and distribution of security—and proscriptions against dehumanizing strategies—the paper concludes that a nonideal-theory priority rule promoting respect for personhood (manifest in community and dignity-promoting policing strategies) is a necessary condition for the justification of the above models.
{"title":"The Limits of Reallocative and Algorithmic Policing","authors":"L. Hunt","doi":"10.1080/0731129X.2022.2056351","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2056351","url":null,"abstract":"Policing in many parts of the world—the United States in particular—has embraced an archetypal model: a conception of the police based on the tenets of individuated archetypes, such as the heroic police “warrior” or “guardian.” Such policing has in part motivated moves to (1) a reallocative model: reallocating societal resources such that the police are no longer needed in society (defunding and abolishing) because reform strategies cannot fix the way societal problems become manifest in (archetypal) policing; and (2) an algorithmic model: subsuming policing into technocratic judgements encoded in algorithms through strategies such as predictive policing (mitigating archetypal bias). This paper begins by considering the normative basis of the relationship between political community and policing. It then examines the justification of reallocative and algorithmic models in light of the relationship between political community and police. Given commitments to the depth and distribution of security—and proscriptions against dehumanizing strategies—the paper concludes that a nonideal-theory priority rule promoting respect for personhood (manifest in community and dignity-promoting policing strategies) is a necessary condition for the justification of the above models.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45184110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/0731129X.2022.2060014
S. Ford
I defend the view that a significant ethical distinction can be made between justified killing in self-defense and police use of lethal force. I start by opposing the belief that police use of lethal force is morally justified on the basis of self-defense. Then I demonstrate that the state’s monopoly on the use of force within a given jurisdiction invests police officers with responsibilities that go beyond what morality requires of the average person. I argue that the police should primarily be concerned with preserving public safety. As a consequence, police have additional moral permissions to use lethal force. But this also means that the principle of restraint is inherent to the policing function and therefore police are obliged to go to greater lengths to avoid killing. I concede that the just use of police force can be made difficult in extreme situations such as a mass riot. In such cases, police should take proportionate actions necessary to protect the lives of inhabitants by restoring order, which might include calling on military support. I conclude with a cautionary note opposing militarization of the policing role.
{"title":"Restraining Police Use of Lethal Force and the Moral Problem of Militarization","authors":"S. Ford","doi":"10.1080/0731129X.2022.2060014","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2060014","url":null,"abstract":"I defend the view that a significant ethical distinction can be made between justified killing in self-defense and police use of lethal force. I start by opposing the belief that police use of lethal force is morally justified on the basis of self-defense. Then I demonstrate that the state’s monopoly on the use of force within a given jurisdiction invests police officers with responsibilities that go beyond what morality requires of the average person. I argue that the police should primarily be concerned with preserving public safety. As a consequence, police have additional moral permissions to use lethal force. But this also means that the principle of restraint is inherent to the policing function and therefore police are obliged to go to greater lengths to avoid killing. I concede that the just use of police force can be made difficult in extreme situations such as a mass riot. In such cases, police should take proportionate actions necessary to protect the lives of inhabitants by restoring order, which might include calling on military support. I conclude with a cautionary note opposing militarization of the policing role.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47208961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/0731129X.2022.2056352
Maro Polykarpou
This article offers a comparative analysis of the phenomenon of pre-trial non-disclosure of criminal evidence, as exhibited by police and prosecution authorities in the US and English legal systems. The majority of literature that focuses on the subject of disclosure and specifically non-disclosure when it comes to criminal evidence review, explores the challenges and experiences of the US and English disclosure systems in isolation. This article considers disclosure ethics in the context of systemic cultural patterns exhibited by prosecution and police authorities in both jurisdictions. Thus, by conducting a step-by-step appreciation of the culture and operative practices experienced in both common-law systems, the article aims to offer a better understanding of the causes that lie behind police and prosecutorial ethical violations of disclosure duties. Specifically, I conclude that both police officials and prosecutors in England and the US enjoy a significant number of incentives that encourage unethical behavior and set low standards for performing one’s ethical and legal duty to disclose. At the same time, both criminal justice systems do not appear to put enough measures in place in order to punish and deter such occurrences.
{"title":"Prosecutorial and Police Disclosure Ethics in Criminal Evidence Review in the UK and the US. A Comparative Account","authors":"Maro Polykarpou","doi":"10.1080/0731129X.2022.2056352","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2056352","url":null,"abstract":"This article offers a comparative analysis of the phenomenon of pre-trial non-disclosure of criminal evidence, as exhibited by police and prosecution authorities in the US and English legal systems. The majority of literature that focuses on the subject of disclosure and specifically non-disclosure when it comes to criminal evidence review, explores the challenges and experiences of the US and English disclosure systems in isolation. This article considers disclosure ethics in the context of systemic cultural patterns exhibited by prosecution and police authorities in both jurisdictions. Thus, by conducting a step-by-step appreciation of the culture and operative practices experienced in both common-law systems, the article aims to offer a better understanding of the causes that lie behind police and prosecutorial ethical violations of disclosure duties. Specifically, I conclude that both police officials and prosecutors in England and the US enjoy a significant number of incentives that encourage unethical behavior and set low standards for performing one’s ethical and legal duty to disclose. At the same time, both criminal justice systems do not appear to put enough measures in place in order to punish and deter such occurrences.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45613935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/0731129X.2022.2062546
David Thacher
The most influential agenda for progressive police reform today aims to shrink the police footprint by reassigning many problems they currently manage to other institutions. This paper argues that this agenda relies on faulty understanding of the police role, and that a more promising agenda based on a better understanding is available. Police are a residual institution, charged with managing the crises that other institutions cannot handle adequately on their own, and it is not easy to reassign that work to anyone else. In the course of doing it, however, they develop expertise in the nature and sources of these crises that positions them to identify and help repair the institutional failures that generate them. The paper illustrates these claims with case studies of the challenges that efforts to reassign police work elsewhere have encountered and the role that police have played in institutional repair. It concludes by considering he normative concerns that this important aspect of the police role raises.
{"title":"Shrinking the Police Footprint","authors":"David Thacher","doi":"10.1080/0731129X.2022.2062546","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2062546","url":null,"abstract":"The most influential agenda for progressive police reform today aims to shrink the police footprint by reassigning many problems they currently manage to other institutions. This paper argues that this agenda relies on faulty understanding of the police role, and that a more promising agenda based on a better understanding is available. Police are a residual institution, charged with managing the crises that other institutions cannot handle adequately on their own, and it is not easy to reassign that work to anyone else. In the course of doing it, however, they develop expertise in the nature and sources of these crises that positions them to identify and help repair the institutional failures that generate them. The paper illustrates these claims with case studies of the challenges that efforts to reassign police work elsewhere have encountered and the role that police have played in institutional repair. It concludes by considering he normative concerns that this important aspect of the police role raises.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45406831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/0731129X.2022.2044582
J. Charles
forces that fuel gun violence in our country. They are gun glorification, armed supremacy, political apathy and corruption, poverty, and the national mental health crisis. 14
助长我国枪支暴力的力量。它们是枪支美化、武装至上、政治冷漠和腐败、贫困以及全国精神健康危机。14
{"title":"The Promise (and Peril) of Libertarian Solutions to Gun Violence","authors":"J. Charles","doi":"10.1080/0731129X.2022.2044582","DOIUrl":"https://doi.org/10.1080/0731129X.2022.2044582","url":null,"abstract":"forces that fuel gun violence in our country. They are gun glorification, armed supremacy, political apathy and corruption, poverty, and the national mental health crisis. 14","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43377611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-02DOI: 10.1080/0731129X.2021.2005866
R. Leider
Jonathan Quong’s The Morality of Defensive Force tackles difficult questions concerning the moral justification of self-defense. Some are big structural questions. How does the permissibility of defensive force relate to broader moral principles? Should we have a single, unified theory of defensive force or multiple theories? Others involve narrower issues, including developing a theory of the triggering conditions for self-defense and providing novel justifications for the necessity and proportionality limitations. When it comes to some big structural questions (e.g. the relationship between self-defense and broader moral theory), The Morality of Defensive Force represents a major step forward. But the book’s omission of political theory leaves me skeptical of some answers that Quong provides to the narrower issues. In The Morality of Defensive Force, Quong does not offer a single unified theory of self-defense; instead, he presents two theories that provide independent sufficient grounds to justify defensive violence within their respective spheres. The first theory applies to cases in which “an attacker is liable to defensive harm... , and thus, he is not wronged, and has no standing to complain, when some defensive harm is imposed on him” (18). The second theory, in contrast, involves self-defense cases in which neither party has done an action that makes the person liable to defensive violence. These are cases in which innocent victims face threats from otherwise justified attackers or nonresponsible threats (58). Let’s begin with the first theory. This theory involves core selfdefense cases, such as when a culpable Aggressor A unjustly threatens to kill a victim V. What makes A liable to defensive force by V? Much previous scholarship grounds V’s permission to use defensive force either on A’s culpability in creating the threat or on the fact that ∗Robert Leider is an Assistant Professor of Law at the Antonin Scalia Law School, George Mason University. Email: rleider@gmu.edu Criminal Justice Ethics, 2021 Vol. 40, No. 3, 274–283, https://doi.org/10.1080/0731129X.2021.2005866
Jonathan Quong的《防卫力量的道德》解决了有关自卫的道德正当性的难题。有些是重大的结构性问题。防御力量的允许性与更广泛的道德原则有何关系？我们应该有一个单一的、统一的防御力理论还是多种理论？其他涉及范围较窄的问题，包括发展自卫触发条件的理论，以及为必要性和相称性限制提供新的理由。当涉及到一些重大的结构性问题（例如自卫与更广泛的道德理论之间的关系）时，《防卫力量的道德》代表着向前迈出了重要一步。但这本书省略了政治理论，这让我对孔为更狭隘的问题提供的一些答案持怀疑态度。在《防卫力量的道德》一书中，孔没有提出一个统一的自卫理论；相反，他提出了两种理论，它们提供了独立的充分理由，为各自领域内的防御性暴力辩护。第一种理论适用于“攻击者有可能受到防御性伤害……因此，当一些防御性伤害强加给他时，他没有受到冤枉，也没有资格抱怨”（18）的情况。相比之下，第二种理论涉及自卫案件，在这些案件中，任何一方都没有采取使当事人承担自卫暴力责任的行动。在这些情况下，无辜受害者面临来自其他正当攻击者或无回应威胁的威胁（58）。让我们从第一个理论开始。这一理论涉及核心自卫案件，例如当应受谴责的施暴者a不公正地威胁要杀死受害者V时。是什么让a有责任受到V的自卫？此前的许多学术研究都以A制造威胁的罪责为理由，或以*Robert Leider是乔治梅森大学Antonin Scalia法学院的助理法学教授为理由，允许V使用防御武力。电子邮件：rleider@gmu.edu《刑事司法伦理》，2021年第40卷，第3期，274-283，https://doi.org/10.1080/0731129X.2021.2005866
{"title":"Political Theory and Limiting the Right of Self-Defense","authors":"R. Leider","doi":"10.1080/0731129X.2021.2005866","DOIUrl":"https://doi.org/10.1080/0731129X.2021.2005866","url":null,"abstract":"Jonathan Quong’s The Morality of Defensive Force tackles difficult questions concerning the moral justification of self-defense. Some are big structural questions. How does the permissibility of defensive force relate to broader moral principles? Should we have a single, unified theory of defensive force or multiple theories? Others involve narrower issues, including developing a theory of the triggering conditions for self-defense and providing novel justifications for the necessity and proportionality limitations. When it comes to some big structural questions (e.g. the relationship between self-defense and broader moral theory), The Morality of Defensive Force represents a major step forward. But the book’s omission of political theory leaves me skeptical of some answers that Quong provides to the narrower issues. In The Morality of Defensive Force, Quong does not offer a single unified theory of self-defense; instead, he presents two theories that provide independent sufficient grounds to justify defensive violence within their respective spheres. The first theory applies to cases in which “an attacker is liable to defensive harm... , and thus, he is not wronged, and has no standing to complain, when some defensive harm is imposed on him” (18). The second theory, in contrast, involves self-defense cases in which neither party has done an action that makes the person liable to defensive violence. These are cases in which innocent victims face threats from otherwise justified attackers or nonresponsible threats (58). Let’s begin with the first theory. This theory involves core selfdefense cases, such as when a culpable Aggressor A unjustly threatens to kill a victim V. What makes A liable to defensive force by V? Much previous scholarship grounds V’s permission to use defensive force either on A’s culpability in creating the threat or on the fact that ∗Robert Leider is an Assistant Professor of Law at the Antonin Scalia Law School, George Mason University. Email: rleider@gmu.edu Criminal Justice Ethics, 2021 Vol. 40, No. 3, 274–283, https://doi.org/10.1080/0731129X.2021.2005866","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44666029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-02DOI: 10.1080/0731129X.2021.1997159
Sarah W. Hirschfield
Can a state punish citizens for breaking unjust laws? In his engaging defense of democratic political authority, Stephen P. Garvey answers affirmatively. Guilty Acts, Guilty Minds sets up a debate between philosophical anarchists, who think that a state can punish lawbreakers only if its laws are just, and statists, who think that a state can punish lawbreakers even if its laws are unjust. Garvey defends a version of statism that recognizes democratic political authority and defines the limits of this authority using the concepts of actus reus (guilty act) and mens rea (guilty mind). Guilty Acts, Guilty Minds provides an accessible overview of major issues in criminal and moral thought, exploring the terrain with nuance and care. The book uses real cases as starting points for discussions of issues such as insanity, duress, and incapacitation. Garvey writes for non-specialists, avoiding jargon and relegating his debates with other scholars to the footnotes, successfully pointing those looking for more detail and argumentation to the relevant scholarly literature. His larger aim—to draw the bounds of state authority using the concepts of actus reus and mens rea—is refreshingly novel and topical, especially at a time where many are wondering how state action can be legitimate when its laws are unjust. Garvey’s defense of democratic authority will spur discussions among his readers about what those limits ought to be —whether they agree with him or not. The book is divided into six chapters. Chapter 1 sketches the debate between the anarchists and statists. Chapters 2, 3, and 4 provide an overview of the actus reus and mens rea requirements for crimes committed knowingly and unknowingly. Chapter 5 covers the insanity defense. Chapter 6 returns to the debate between anarchists and statists. Chapter 1 defends a version of statism. Contra the philosophical anarchist, who “makes no distinction between justice and legitimacy,” the statist recognizes that the state can Sarah W. Hirschfield, Email: sarah.w. hirschfield@gmail.com Criminal Justice Ethics, 2021 Vol. 40, No. 3, 269–273, https://doi.org/10.1080/0731129X.2021.1997159
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