scholarly journals Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

2021 ◽  
Author(s):  
Alexander Sarch
Keyword(s):  
Criminal Law ◽  
Legal Systems ◽  
Legal Moralism ◽  
Moral Ideal ◽  
Ignorance Of Law ◽  
Criminal Culpability ◽  
Critical Morality

AbstractIn Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates.

Legal Moralism and Public Wrongs

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Professional Ethics ◽  
Good Reason ◽  
Civic Life ◽  
Legal Moralism ◽  
Preliminary Discussion ◽  
Familiar Form ◽  
Public Wrong

This chapter provides a preliminary discussion of ‘legal moralism’. It distinguishes ‘negative’ from ‘positive’ legal moralism; it defends negative legal moralism (we may not criminalize conduct that is not wrongful prior to its criminalization), and shows why positive legal moralism (the wrongfulness of a type of conduct gives us reason to criminalize it) is attractive. It criticizes the most familiar form of positive legal moralism, according to which we have good reason to criminalize all morally wrongful conduct, as being implausibly over-expansive, and argues for a modest legal moralism according to which criminal law is concerned only with public wrongs. The idea of a public wrong is explained through a discussion of professional ethics, and an analogy between codes of professional ethics, dealing with wrongdoing that falls within a particular practice, and criminal law, as concerned with wrongdoing that falls within the distinctive practice of civic life—of a polity.

What Is Criminal Culpability?

2019 ◽  
pp. 27-82
Author(s):  
Alexander Sarch
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Explanatory Power ◽  
Mental States ◽  
Criminal Culpability

Chapter 2 aims to elucidate the concept of criminal culpability. Since the project of the book is to analyze, evaluate, and ultimately defend certain criminal law doctrines that impute mental states on the basis of equal culpability, the chapter explains what criminal culpability is. Chapter 2 presents the author’s theory of culpability and aims to show why it offers an attractive way to think about this concept. The theory falls squarely within the insufficient regard tradition, but the chapter fleshes out details in new ways to strengthen the theory and solve certain problems for this sort of position. The chapter is divided into two main parts. The first is ecumenical and aims to bring as many into the broad church of the insufficient regard theory as possible. The chapter does this by highlighting the explanatory power of the author’s version of the theory (particularly the requirement to manifest bad attitudes in action before criminal liability attaches and the criminal law’s general disinterest in motives and other unmanifested mental states). The chapter also shows how the theory can accommodate both sides in certain controversies about the criminal law. The second half of the chapter adopts a normative stance and provides arguments for how these controversies should be resolved. This insufficient regard theory is used as the basis for the arguments going forward in the book.

The Limits of Criminal Culpability

2012 ◽  
Vol 25 (1) ◽  
pp. 159-175
Author(s):  
Mark Thornton
Keyword(s):  
Criminal Law ◽  
Core Concept ◽  
The Core ◽  
Criminal Culpability ◽  
Subjectivist Theory

The authors of Crime and Culpability hold a subjectivist theory of criminal culpability according to which the core concept in culpability is subjective recklessness, negligence is not culpable, and it is irrelevant to culpability whether or not a criminal act results in harm. I argue against these three theses and criticize the authors’ views on the structure of criminal law, criminal defences, criminal attempts, and codification.

The European Integrated Criminal Justice System and its Constitutional Framework

2005 ◽  
Vol 12 (2) ◽  
pp. 125-147 ◽  
Author(s):  
Joachim Vogel
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
European Integration ◽  
Criminal Law ◽  
Justice System ◽  
Legal Systems ◽  
Member States ◽  
Criminal Justice Systems ◽  
Financial Interests ◽  
Justice Systems

This article discusses the concept of the integrated European criminal justice system and its constitutional framework (as it stands now and as laid down in the Treaty Establishing a Constitution for Europe signed in Rome on 29 October 2004). It argues that European integration does not stop short of criminal justice. Integration does not mean that Member States and their legal systems, including their criminal justice systems, are being abolished or centralised or unified. Rather, they are being integrated through co-operation, co-ordination and harmonisation; centralisation, respectively unification, is a means of integration only in specific sectors such as the protection of the European Communities' financial interests. The article further argues that the integrated European criminal justice system is in need of a constitutional framework. The present framework suffers from major deficiencies. However, the Treaty establishing a Constitution for Europe will introduce a far better, all in all satisfactory, ‘criminal law constitution’.

Double Criminality in Extradition Law

1993 ◽  
Vol 27 (1-2) ◽  
pp. 288-296 ◽  
Author(s):  
Lech Gardocki
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Common Denominator ◽  
Legal Systems ◽  
Criminal Proceedings ◽  
The Common

1. The principle of double criminality is traditionally bound with institutions of international criminal law. Double criminality is a requirement not only with extradition, but also with the transfer of criminal proceedings and with execution of foreign sentences. International criminal law employs a range of “double conditions”, the common denominator of which is the requirement that two legal systems share a certain set of values or legal prescriptions. In addition to double criminality, international law uses such terms as “double punishability”, the “double possibility of criminal proceedings” and the “double possibility of the execution of penal judgment”. Among these concepts, double criminality is the most important and universal condition applied in the basic institutions of international criminal law, such as extradition, the transfer of proceedings, and the execution of foreign penal judgments.

scholarly journals The Problem of Over-Inclusive Offenses: A Closer Look at Duff on Legal Moralism and Mala Prohibita

2020 ◽  
Vol 14 (3) ◽  
pp. 395-416
Author(s):  
Stephen Bero ◽  
Alex Sarch
Keyword(s):  
Criminal Law ◽  
Legal Moralism ◽  
Criminal Offense ◽  
The Law ◽  
Antony Duff

Abstract There are sometimes good reasons to define a criminal offense in a way that is over-inclusive, in the sense that the definition will encompass conduct that is not otherwise wrongful. But are these reasons ever sufficient? When, if ever, can such laws justifiably be made and enforced? When, if ever, can they permissibly be violated? In The Realm of Criminal Law, Antony Duff tackles this challenge head on. We find Duff’s strategy promising in many ways as an effort to reconcile over-inclusive offenses with the wrongness constraint on criminalization. Nonetheless, we aim to move the discussion forward by raising questions about Duff’s solution and highlighting some limitations and costs. We begin in Part 2 by sketching the contours of Duff’s position; then in Part 3 we propose one refinement and offer two practical observations; and finally, in Part 4 we raise broader concerns. In particular, we question whether the problem of over-inclusive offenses is one that can or ought to be solved, or whether it is better conceived as a difficulty to be managed and mitigated. Of course, we should avoid undue harshness in the law where we can, and Duff’s approach is guided by this worthy ambition. But there may also be a limit to this. To the extent that the harshness cannot be avoided, perhaps this should be acknowledged and faced up to, rather than obscured or finessed.

HARM AND THE VOLENTI PRINCIPLE

2011 ◽  
Vol 29 (1) ◽  
pp. 309-321 ◽  
Author(s):  
Gerald Dworkin
Keyword(s):  
Criminal Law ◽  
The State ◽  
The Other ◽  
Legal Moralism ◽  
Great Work ◽  
Joel Feinberg ◽  
Offense Principle ◽  
Moral Limits

AbstractThis is an essay on the limits of the Criminal Law. In particular, it is about what principles, if any, determine whether it is legitimate for the state to criminalize certain conduct. Joel Feinberg in his great work on the moral limits of the criminal law argues that we need only two principles. One is a principle regulating harm to other people and the other is an offense principle regulating certain kinds of offensive conduct. I explore various aspects of his argument. In particular I concentrate on his use of the Volenti Principle: He who consents cannot be wrongfully harmed by conduct to which he has fully consented. Feinberg uses the principle to argue that certain kinds of consensual conduct cannot be forbidden unless we adopt some kind of legal moralism, i.e., conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. I explore the possibility of avoiding legal moralism by limiting the use of the Volenti Principle.

Some Aspects of the Sudan Law of Homicide

1974 ◽  
Vol 18 (1) ◽  
pp. 92-103
Author(s):  
Amin M. Medani
Keyword(s):  
19Th Century ◽  
Criminal Law ◽  
Penal Code ◽  
Present Writer ◽  
Legal Systems ◽  
Time And Space ◽  
The Law ◽  
Indian Penal Code ◽  
Changing Society

The Sudan Penal Code (henceforth abbreviated as S.P.C.) was, with minor modifications, copied in 1899 from the Indian Penal Code (henceforth abbreviated as I.P.C.), which in its turn was to some extent based on 19th-century English criminal law. Since its enactment, the S.P.C. has been revised and re-enacted once in 1925, but no significant changes were then effected. Law makers in the Sudan are at present engaged in the revision and reformulation of the laws of the country in an attempt to bring them into line with the modern needs of a changing society. It is the feeling of the present writer that the field of criminal law warrants the least intervention or modification because the S.P.C has, in its 75 years of existence, been largely satisfactorily interpreted and applied, resulting in what could legitimately be called the criminal law of the Sudan. This, however, is by no means tantamount to saying that the Code is satisfactory in all aspects and that there is no room for improvement. At any rate, it is not intended to discuss in this article what possible changes should be brought about in the Code as a whole, a task which would evidently need much more time and space. It is merely hoped to discuss critically some aspects of the law of homicide as laid down in the Code (and applied by the courts). In so doing it is hoped to show that in some respects the Sudanese law of homicide calls for modification of some of the provisions, while other provisions of the Code are so satisfactory that they may contribute to the resolution of problems faced by other legal systems.

A Cosmopolitan Liberal Account of International Criminal Law

2013 ◽  
Vol 26 (1) ◽  
pp. 127-153 ◽  
Author(s):  
DARRYL ROBINSON
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Legal Systems ◽  
The Individual ◽  
New Framework

AbstractIn this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.

Social Expectations in the Criminal Law: The "Reasonable Person" in a Comparative Perspective

2008 ◽  
Vol 11 (1) ◽  
pp. 1-32 ◽  
Author(s):  
Tatjana Höörnle
Keyword(s):  
Criminal Law ◽  
Personal Responsibility ◽  
Comparative Perspective ◽  
Social Expectations ◽  
Legal Systems ◽  
Reasonable Person ◽  
The Individual

The "reasonable person" plays an important role in English and American criminal law, but not in German criminal law. The comparative view yields a number of differences (for example, with respect to negligent crimes, errors about justifying circumstances, and excuses like duress). Besides analyzing such differences, the article examines the legitimate role of social expectations in criminal law (which stand behind references to the "reasonable person") beyond the details of different legal systems. It concludes that one must distinguish judgments about wrongdoing from judgments about personal responsibility. The former are shaped by social expectations, while personal responsibility needs to be evaluated with a view to the individual offender.

Sign in / Sign up

Export Citation Format

Share Document