Castigo y comunidad: algunas reflexiones en torno al debate Gargarella-Duff

El artículo analiza algunos puntos del diálogo entablado en los últimos años entre Roberto Gargarella y Antony Duff. Gargarella ha criticado a Duff por defender una mirada que incorpora elementos de dos concepciones políticas rivales, el liberalismo y el comunitarismo, dando lugar a una teoría que es internamente inconsistente. El problema de dicha crítica es que Gargarella incurre en el mismo tipo de contradicción que atribuye a Duff. Luego de identificar la tensión que está presente en la obra de Gargarella se propone una forma posible de resolverla.

Responsabilidad, autoridad y democracia. Una exploración crítica de la filosofía del derecho penal de Antony Duff

El trabajo explora algunos aspectos centrales del programa de una filosofía del derecho penal desarrollado por Antony Duff, en referencia a tres ejes fundamentales de su pensamiento, internamente conectados: su concepción relacional de la responsabilidad, su caracterización de la autoridad del derecho y su comprensión de la democracia como fuente de legitimación. Sobre esta base, se persigue mostrar la inestabilidad de su recurso a la distinción entre mala in se y mala prohibita, así como la falta de plausibilidad de su concepción no-procedimentalista de la producción democrática del derecho

International Criminal Justice and Expressivist Theory

The origins of expressivism lie in sociology (e.g. Emile Durkheim) and communicative theories of criminal law (e.g. Joel Feinberg, Antony Duff). These ideas have been developed in contemporary criminal law doctrine (e.g. Günther Jakobs, Andrew von Hirsch, Tatjana Hörnle, Claus Roxin), transitional justice (e.g. Mark Osiel, Pablo de Greiff), and international criminal law. The chapter develops a contemporary theory of expressivism. It argues that expressivism is rooted in a communicative cycle between norms as messages, crimes as messages, and judicial responses. This triad provides an explanation for the functioning of expressivism. It can be divided into norm expression and diverse types of agent-related expression. Their application involves different tensions: empirics versus faith, power-related critiques, instrumentalism, and mediation of messages.

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

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.

Religious Fictionalism and Pascal’s Wager

This chapter is a re-examination of Pascal’s famous pragmatic argument (Pascal’s Wager) in support of wagering for God, first introduced in Pensées, Part III, §233. It is, in part, a consideration of whether Pascal is best interpreted as advocating a version of fictionalism about the Christian religion. Although it is ultimately concluded that Pascal should not be interpreted this way, his views are remarkably close to the religious fictionalist’s, and, in a sense, his views may be thought of as a precursor to religious fictionalism. In addition, this chapter is also a consideration of how a contemporary fictionalist might adapt Pascal’s argument. Although the new “factionalist” wager suffers from many of the same problems as Pascal’s original wager, it is not vulnerable to them all. In particular, fictionalists can dodge a thorny problem first raised by Antony Duff in 1986.

Approaching or Re-thinking the Realm of Criminal Law?

In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes (Duff et al. in The boundaries of the criminal law, 2010; The structures of the criminal law, 2011; The constitution of the criminal law, 2013; Criminalization: the political morality of the criminal law, 2014) and two fine monographs by Farmer (Making the modern criminal law: criminalization and civil order, 2016) and Tadros (Wrongs and crimes, 2016; see also Tadros in The ends of harm: the moral foundations of criminal law, 2011). It will shape the field for decades to come; and it has decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility (cf. Lacey in Frontiers of criminality, 1995).

Introduction

In this brief introduction, the editors summarize the motivation for the coming together of these chapters—which is to celebrate the work and philosophical legacy of Gary Watson—as well as the content of each contribution. Michael McKenna builds on and systematizes several key elements of Watson’s views on agency and responsibility. Susan Wolf extends elements of Watson’s oeuvre, notably the relationship between the way agents are responsible for their actions and the kind of response licensed by those actions. Pamela Hieronymi goes on from Watson’s work to offer her own account of what blame’s about. R. Jay Wallace is also concerned with Watson’s overall conception of moral responsibility, understanding blame to be an incipient form of moral address. Michael Smith continues the theme, offering a possible theory of moral responsibility similarly grounded in the reactive emotions. T. M. Scanlon continues a debate that Scanlon and Watson have been having over the moral status of psychopaths. Jeanette Kennett argues that psychopaths are not accountable for their actions in the sense required for moral blameworthiness; and that psychopaths’ actions are not attributable to them so as to make them plausibly criminal. Antony Duff extends Watson’s work on moral responsibility to the domain of criminal responsibility. Gideon Yaffe seeks to better understand the prospects of Watson’s account of addiction. Gary Watson himself offers his current account of the distinction between the two faces of responsibility and thoughts on weakness of will and negligence. Finally, a 2016 interview of Watson by Sarah Buss is a wide-ranging and significant discussion of Gary’s personal history and philosophical development.

Oxford Studies in Agency and Responsibility Volume 5

No one has written more insightfully on the promises and perils of human agency than Gary Watson, who has spent a career thinking about issues such as moral responsibility, blame, free will, weakness of will, addiction, and psychopathy. The chapters of this volume pay tribute to Watson’s work by taking up and extending themes from his pioneering essays. Themes covered include:: compatibilist views of freedom and moral responsibility, the distinction between attributability and accountability, the responsibility of psychopaths, the nature of blame and its relationship to morality, the relevance of addiction to responsibility, the continuing influence of P. F. Strawson’s work, the connection between criminal and moral responsibility, the philosophical development of Gary Watson and the ways Watson’s views have changed over time. Contributors include: Michael McKenna, Susan Wolf, Pamela Hieronymi, R. Jay Wallace, Michael Smith, T. M. Scanlon, Jeanette Kennett, Antony Duff, Gideon Yaffe, Gary Watson, Sarah Buss, Neal Tognazzini, and D. Justin Coates.

An Instrumental Legal Moralism

Many writers defend or attack the position nowadays known as legal moralism. According to the most common formulation, legal moralists endorse the following thesis: the fact that φ‎ing is morally wrong is a reason to criminalize φ‎ing. This chapter considers a different kind of legal moralism, here called instrumental legal moralism (ILM). According to ILM: the fact that criminalizing φ‎ing will probably prevent moral wrongs is a reason to criminalize φ‎ing. Section I draws some relevant distinctions. In doing so, it clarifies the difference between ILM and the act-centred legal moralism (ALM) commonly discussed in the literature. Sections II–IV consider two prominent arguments for ALM: the retributivist argument, offered by Michael Moore, and the answerability argument, offered by Antony Duff. The chapter shows that, contrary to the intentions of these authors, both arguments in fact support ILM.

Comentarios de libros: Comentario a Antony Duff: Sobre el castigo. Por una justicia penal que hable el lenguaje de la comunidad

Comentario a Antony Duff: Sobre el castigo. Por una justicia penal que hable el lenguaje de la comunidadSiglo XXI Editores, Buenos Aires, 2015