Criminal Law and Philosophy最新文献

Abstract

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal dialogue the relationship between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment.

The act of criminalising conduct has been understood by many theorists as a form of communication. This paper proposes a model, based on speech-act theory, for understanding how that act of communication works. In particular, it focuses on analysing how and where wrongfulness can appear in this speech-act, if one were to argue, as many theorists do, that part of what is being communicated through criminalisation is the wrongfulness of the target conduct. I argue that the act of criminalisation is best understood as an indirect speech-act, which both asserts and declares normative facts, the utterance of which makes it the case that a conduct is now criminalised. Within this speech-act, wrongfulness can appear as an implicit assertion of the wrongness of the conduct, which has to be inferred by hearers from the context of utterance. The paper then briefly discusses the upshots of this model, mainly that it allows a clearer picture of how criminalisation conveys meanings, as well as leaving open the question as to whether it makes sense to think that the wrongfulness being conveyed is specifically of a moral kind.

This paper raises four queries about Simester’s defective engagement with reason account of culpability found in his Fundamentals of Criminal Law: (1) the characterisation of the account in terms of moral ‘vices’; (2) the basis for identifying a vice as a ‘moral’ vice; (3) what is involved in an agent manifesting ‘insufficient care and concern’ for the interests of others; and (4) whether the account is an account of culpability generally, or is instead an account of criminal culpability, i.e., the type of culpability necessary for criminal conviction.

Andrew Simester’s new book, Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing, is a masterful analysis of the doctrines of the general part of the criminal law and the multiple, overlapping functions that those doctrines serve. Along the way, Simester makes explicit what criminal law theorists routinely presuppose—that the ordinary words “blameworthiness” and “culpability” pick out the same moral concept. This essay argues that this assumed equivalence is mistaken: two concepts are in play, not one. Roughly, to be blameworthy is to be justly liable to blaming practices in virtue of being at fault, and to be culpable is to act in a fashion that manifests or issues from insufficient concern for morally weighty interests. Culpability is not identical to blameworthiness, but rather a ground of blameworthiness: to be culpable is one way to be at fault, thus one way to be blameworthy. More importantly, culpability is not the exclusive ground of blameworthiness; an agent can be at fault, hence blameworthy, without being culpable. This essay defends these conceptual claims and draws forth some implications for two theses that Simester advances: that it is morally permissible to punish persons for criminal negligence and that it is unjust to punish persons who don’t deserve it.

In her latest book Spying Through a Glass Darkly: The Ethics of Espionage and Counter-Intelligence, Cécile Fabre suggests that the deception of third parties during an infiltration operation can be justified as a foreseen but unintended side effect. In this essay, I criticize this view. Such deception, I argue, is better justified paternalistically as a means of preventing third parties from becoming wrongful threats. In the second part of the article, I show that Fabre ignores an important moral complication in deception operations where agents intentionally allow others to be harmed as a means of protecting a secret. I argue that intentionally allowing harm to others as a means is a particularly problematic mode of agency which must be addressed in a normative account of espionage.

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