{"title":"Determinism, compatibilism, and basic desert: a reply to Gregg Caruso","authors":"A. Walen","doi":"10.4337/jlp.2021.02.06","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.06","url":null,"abstract":"","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"9 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82512530","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}
{"title":"Taking responsibility for criminal responsibility: comments on Rejecting Retributivism: Free Will, Punishment, and Criminal Justice","authors":"C. Kennedy","doi":"10.4337/jlp.2021.02.04","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.04","url":null,"abstract":"","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"183 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80424016","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}
{"title":"Why not ‘weak’ retributivism?","authors":"K. Sifferd","doi":"10.4337/jlp.2021.02.05","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.05","url":null,"abstract":"","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"60 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86898593","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}
I would like to begin by thanking Michael Corrado, Chloë Kennedy, Katrina Sifferd, Alec Walen, Derk Pereboom and Elizabeth Shaw for their astute and challenging comments on my book, Rejecting Retributivism: Free Will, Punishment, and Criminal Justice. It is seldom that one gets the opportunity to put their views to the test by responding to six of the leading figures in their field. While I have had only the briefest time to consider their comments, and more prolonged reflection would no doubt yield more insights, I have already benefited greatly by wrestling with their perceptive criticisms. In this article, I outline the objections, suggestions and critical points presented by each commentor and respond to each as best I can. While I dedicate more space to some challenges than others, this is not a reflection of the quality of the commentaries but is instead due to a limitation on time and space. There is also occasional overlap between the commentaries, and it makes more sense to address common criticisms only once. I begin by responding to Michael Corrado and then proceed in the order indicated in the subtitle.
{"title":"Retributivism, free will skepticism and the public health-quarantine model: replies to Corrado, Kennedy, Sifferd, Walen, Pereboom and Shaw","authors":"Gregg D. Caruso","doi":"10.4337/jlp.2021.02.09","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.09","url":null,"abstract":"I would like to begin by thanking Michael Corrado, Chloë Kennedy, Katrina Sifferd, Alec Walen, Derk Pereboom and Elizabeth Shaw for their astute and challenging comments on my book, Rejecting Retributivism: Free Will, Punishment, and Criminal Justice. It is seldom that one gets the opportunity to put their views to the test by responding to six of the leading figures in their field. While I have had only the briefest time to consider their comments, and more prolonged reflection would no doubt yield more insights, I have already benefited greatly by wrestling with their perceptive criticisms. In this article, I outline the objections, suggestions and critical points presented by each commentor and respond to each as best I can. While I dedicate more space to some challenges than others, this is not a reflection of the quality of the commentaries but is instead due to a limitation on time and space. There is also occasional overlap between the commentaries, and it makes more sense to address common criticisms only once. I begin by responding to Michael Corrado and then proceed in the order indicated in the subtitle.","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"32 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89756161","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}
In law, domesticated animals are chattels, the object of property rights. This classification does not reflect the characteristics and capacities of nonhuman animals that make them unlike other objects of property. The categorization also fails to reflect widely held beliefs that animals deserve some moral consideration. In recognition of these difficulties, a literature has developed to advance the case for animal rights and alternative frameworks for animal protection. Yet the literature has neglected one logically antecedent issue: the normative suitability of property status itself. The property paradigm provides a straightforward legal mechanism for the exercise of control over others, as seen in its historical influence over the treatment of children and married women; yet in the animal context, its suitability has remained unscrutinized. This article does not rely on moral objections to the classification of animals as property. It focuses instead on reasons of legal theory that challenge this hegemony. Consideration of animal welfare legislation provides a preliminary indication that animals’ property status is unsuitable. Regardless of whether property is conceived as the right to exclude or a ‘bundle’ of rights, protection of the interests of objects is inconsistent with other frameworks that regulate proprietary relations. Moreover, a comprehensive examination of traditional justifications for the private property institution reveals that animal property does not serve the purposes for which the institution was established. These analyses expose the normative incoherence of the classification of animals as chattels.
{"title":"Unravelling incoherence: utilizing property theory to challenge the classification of animals as chattels","authors":"Anna Wotherspoon","doi":"10.4337/jlp.2021.02.01","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.01","url":null,"abstract":"In law, domesticated animals are chattels, the object of property rights. This classification does not reflect the characteristics and capacities of nonhuman animals that make them unlike other objects of property. The categorization also fails to reflect widely held beliefs that animals deserve some moral consideration. In recognition of these difficulties, a literature has developed to advance the case for animal rights and alternative frameworks for animal protection. Yet the literature has neglected one logically antecedent issue: the normative suitability of property status itself. The property paradigm provides a straightforward legal mechanism for the exercise of control over others, as seen in its historical influence over the treatment of children and married women; yet in the animal context, its suitability has remained unscrutinized. This article does not rely on moral objections to the classification of animals as property. It focuses instead on reasons of legal theory that challenge this hegemony. Consideration of animal welfare legislation provides a preliminary indication that animals’ property status is unsuitable. Regardless of whether property is conceived as the right to exclude or a ‘bundle’ of rights, protection of the interests of objects is inconsistent with other frameworks that regulate proprietary relations. Moreover, a comprehensive examination of traditional justifications for the private property institution reveals that animal property does not serve the purposes for which the institution was established. These analyses expose the normative incoherence of the classification of animals as chattels.","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"91 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87485432","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}
The dual aims of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice are to argue against retributivism and to develop and defend a viable non-retributive alternative for addressing criminal behaviour that is both ethically defensible and practically workable. In the first half of the book, I develop six distinct arguments for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. I also consider a number of alternatives to retributivism, including consequentialist deterrence theories, educational theories and communicative theories, and argue that they have ethical problems of their own. In the second half of the book, I then develop and defend my novel non-retributive approach, which I call the public health-quarantine model. The model draws on the public health framework and prioritizes prevention and social justice. I argue that it not only offers a stark contrast to retributivism, it also provides a more humane, holistic and effective approach to dealing with criminal behaviour, one that is superior to both retributivism and other leading non-retributive alternatives. Along the way, I also explore the relationship between free will and criminal law; identify and document the social determinants of criminal behaviour and argue that they are analogous to the social determinants of health; offer a number of specific policy proposals and prescriptions for implementing a public health approach to crime prevention; and defend a capabilities approach to social justice, arguing that it can serve as the moral foundation of my public health framework as well as being consistent with my free will skepticism – which maintains that who we are and what we do is ultimately the result of factors beyond our control (whether those be determinism, indeterminism, or luck), and because of this we are never morally responsible in the basic desert sense.
{"title":"Précis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice","authors":"Gregg D. Caruso","doi":"10.4337/jlp.2021.02.02","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.02","url":null,"abstract":"The dual aims of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice are to argue against retributivism and to develop and defend a viable non-retributive alternative for addressing criminal behaviour that is both ethically defensible and practically workable. In the first half of the book, I develop six distinct arguments for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. I also consider a number of alternatives to retributivism, including consequentialist deterrence theories, educational theories and communicative theories, and argue that they have ethical problems of their own. In the second half of the book, I then develop and defend my novel non-retributive approach, which I call the public health-quarantine model. The model draws on the public health framework and prioritizes prevention and social justice. I argue that it not only offers a stark contrast to retributivism, it also provides a more humane, holistic and effective approach to dealing with criminal behaviour, one that is superior to both retributivism and other leading non-retributive alternatives. Along the way, I also explore the relationship between free will and criminal law; identify and document the social determinants of criminal behaviour and argue that they are analogous to the social determinants of health; offer a number of specific policy proposals and prescriptions for implementing a public health approach to crime prevention; and defend a capabilities approach to social justice, arguing that it can serve as the moral foundation of my public health framework as well as being consistent with my free will skepticism – which maintains that who we are and what we do is ultimately the result of factors beyond our control (whether those be determinism, indeterminism, or luck), and because of this we are never morally responsible in the basic desert sense.","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"29 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76044048","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}
{"title":"Non-free general deterrence","authors":"Derk Pereboom","doi":"10.4337/jlp.2021.02.07","DOIUrl":"https://doi.org/10.4337/jlp.2021.02.07","url":null,"abstract":"","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"145 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77960632","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}
This article attempts to determine whether there exists a coherent, plausible, and ultimately compelling explication of what it is to act neutrally. I argue that there is – an account I label neutrality of volition, and according to which an actor acts non-neutrally where she either acts for the purpose of differentially helping or hindering a particular party in a given contest, or acts or in the belief that there is a substantial likelihood that her action will have this effect. Along the way, I suggest that political philosophers concerned with whether justice requires that the state’s laws and policies be publicly justifiable, as well as legal commentators who note that oftentimes laws of general application have disparate impacts, would do well to cease framing their arguments in the language of neutrality. I conclude by arguing that debate over the proper interpretation of neutrality is not merely a matter of semantics. Having identified an account of neutrality that aligns with our ordinary understanding of the concept, and which is also internally consistent, we have access to a conceptual tool that we can use to make better sense of a wide array of actions in the political sphere and beyond, while also avoiding an unhelpful conflation of neutrality with distinct concepts such as fairness, public justifiability, anti-perfectionism, equal impact, and non-discrimination.
{"title":"Rethinking neutrality: a conceptual analysis","authors":"M. Watson","doi":"10.4337/JLP.2021.01.01","DOIUrl":"https://doi.org/10.4337/JLP.2021.01.01","url":null,"abstract":"This article attempts to determine whether there exists a coherent, plausible, and ultimately compelling explication of what it is to act neutrally. I argue that there is – an account I label neutrality of volition, and according to which an actor acts non-neutrally where she either acts for the purpose of differentially helping or hindering a particular party in a given contest, or acts or in the belief that there is a substantial likelihood that her action will have this effect. Along the way, I suggest that political philosophers concerned with whether justice requires that the state’s laws and policies be publicly justifiable, as well as legal commentators who note that oftentimes laws of general application have disparate impacts, would do well to cease framing their arguments in the language of neutrality. I conclude by arguing that debate over the proper interpretation of neutrality is not merely a matter of semantics. Having identified an account of neutrality that aligns with our ordinary understanding of the concept, and which is also internally consistent, we have access to a conceptual tool that we can use to make better sense of a wide array of actions in the political sphere and beyond, while also avoiding an unhelpful conflation of neutrality with distinct concepts such as fairness, public justifiability, anti-perfectionism, equal impact, and non-discrimination.","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"60 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81417598","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}
A central premise of Ronald Dworkin’s famous Argument from Theoretical Disagreement is that judges regularly disagree about the grounds of law. The occurrence of these so-called ‘theoretical disagreements’, it is argued, cannot be explained by the influential legal positivist theory of HLA Hart according to which the grounds of law are constituted by judicial consensus. However, in his attempt to show that theoretical disagreements actually exist Dworkin primarily relies on the occurrence of judicial disagreements about legal interpretation, as he takes them to be disagreements about the grounds of law. In this article, I will argue that these interpretive disagreements do not pose a problem for Hartian positivism. My argument will rely on standard work from the field of pragmatics which provides sophisticated explanations of how the interpretation of linguistic texts, such as legal documents, works. On the model that I will propose, interpretive disagreements concern the meaning that the legal authorities who enacted the document intended to get across and these disagreements arise from diverging assumptions about the context in which these documents were enacted. I will argue that disagreements about intentions and contextual presumptions do not concern the grounds of law and therefore do not threaten Hartian positivism.
罗纳德·德沃金(Ronald Dworkin)著名的《理论分歧论》(Argument from Theoretical controversy)的一个中心前提是，法官经常对法律依据持不同意见。有人认为，这些所谓的“理论分歧”的发生不能用有影响力的法律实证主义理论来解释，根据这种理论，法律的依据是由司法共识构成的。然而，德沃金在试图证明理论分歧确实存在时，主要依靠的是关于法律解释的司法分歧的发生，因为他把这些分歧看作是关于法律依据的分歧。在本文中，我将论证这些解释上的分歧并不会对哈田实证主义构成问题。我的论点将依赖于语用学领域的标准工作，这些工作为语言文本(如法律文件)的解释提供了复杂的解释。在我将要提出的模型中，解释上的分歧涉及制定文件的法律当局想要传达的含义，这些分歧产生于对这些文件制定背景的不同假设。我将论证，关于意图和情境假设的分歧与法律依据无关，因此不会威胁到哈罗德实证主义。
{"title":"Common ground and grounds of law","authors":"Marat Shardimgaliev","doi":"10.4337/jlp.2020.01.01","DOIUrl":"https://doi.org/10.4337/jlp.2020.01.01","url":null,"abstract":"A central premise of Ronald Dworkin’s famous Argument from Theoretical Disagreement is that judges regularly disagree about the grounds of law. The occurrence of these so-called ‘theoretical disagreements’, it is argued, cannot be explained by the influential legal positivist theory of HLA Hart according to which the grounds of law are constituted by judicial consensus. However, in his attempt to show that theoretical disagreements actually exist Dworkin primarily relies on the occurrence of judicial disagreements about legal interpretation, as he takes them to be disagreements about the grounds of law. In this article, I will argue that these interpretive disagreements do not pose a problem for Hartian positivism. My argument will rely on standard work from the field of pragmatics which provides sophisticated explanations of how the interpretation of linguistic texts, such as legal documents, works. On the model that I will propose, interpretive disagreements concern the meaning that the legal authorities who enacted the document intended to get across and these disagreements arise from diverging assumptions about the context in which these documents were enacted. I will argue that disagreements about intentions and contextual presumptions do not concern the grounds of law and therefore do not threaten Hartian positivism.","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"19 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88058986","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}
{"title":"Notes toward a supreme (legal) fiction","authors":"E. K. White","doi":"10.4337/jlp.2022.01.07","DOIUrl":"https://doi.org/10.4337/jlp.2022.01.07","url":null,"abstract":"","PeriodicalId":41811,"journal":{"name":"Rivista di Filosofia del Diritto-Journal of Legal Philosophy","volume":"15 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82317965","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}
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