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

In 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.

The Objective and Coverage of this Book; Doctrinal and Social Propositions; Social and Critical Morality; Terminology; and the Tenor of the Footnote Apparatus

Chapter 1 states the objective of this book: to develop contract law as it should be. Attention is also given to describing contract law as it is, because what contract law should be cannot be developed in a vacuum. Chapter 1 also describes some of the terms used in this book: doctrinal propositions is used in this book to mean propositions that purport to state legal rules and are found in or can be derived from sources that are generally regarded as authoritative by the legal profession. Social propositions is used to mean policies, which characterize states of affairs as good or bad, depending on whether they are conducive or adverse to the general welfare; moral norms, which characterize conduct as right or wrong; and experiential propositions, which describe the way in which the world works and mediate between moral and policy propositions, on the one hand, and doctrinal propositions on the other. All doctrinal propositions should be based on social propositions.

Rights

There is widespread consensus that rights are ways of acting or of being treated that are beneficial to the rightholder. Controversy begins, however, when one attempts to specify the notion of rights further. (1) It is sometimes said, perhaps too casually, that all rights carry with them correlated obligations – things that other persons are supposed to do or refrain from doing when some given person is said to have a right to something. The question is: how is it best to state this relationship between rights and correlated obligations? (2) Most people think that rights are, in some sense, justified. But there is considerable controversy as to what, precisely, is the proper focus of justification. Some say that rights are practices (certain ways of acting or of being treated) that are established, typically socially established. Thus, the issue for them is whether the fact of social recognition and enforcement is justified (or could be). Others say that rights themselves are claims; hence a right is a justified claim or principle of some sort (whether the practice identified in that claim exists or not). This dispute, between rights as justified practices and rights as justified claims, needs to be explored and, if possible, resolved. Other topics need addressing beyond the question of the initial characterization of rights. One of them is the question of the function of rights: what good are they anyway? what can one do with rights? Another is the question of how best to justify particular kinds of rights, such as human rights and basic constitutional rights. Is there a substantive theory of critical morality that can do the job? Many people are concerned, especially, with whether utilitarianism (one of the dominant ethical theories in the West today) is up to this task. Finally, mention should be made of one other issue much talked about of late: what kinds of beings can have rights, and under what conditions of possession and dispossession?

DIGNITY AS A MORAL CONCEPT

Although dignity figures prominently in modern ethical discourse, and in the writings of moral and political philosophers writing today, we still lack a clear account of how the concept of dignity might be implicated in various forms of moral reasoning. This essay tries to make progress on two fronts. First, it attempts to clarify the possible roles the concept of dignity might play in moral discourse, with particular reference to Hart's distinction between positive and critical morality. Second, it offers a new typology of dignity concepts and mobilizes it to, on the one hand, criticize some familiar construals of “human dignity” and, on the other, to advertise the possible virtues of an unfamiliar way of thinking about dignity as a moral concept.

The Moral Limits of Consent as a Defense in the Criminal Law

In this paper I aim to examine the objective limitations of consent as a defense to criminal harmdoing. This paper starts by briefly outlining the idea of objective morality (critical morality) as the proper basis for criminalization decisions and argues that there are also objective rather than mere conventional reasons (positive morality) for limiting the scope of consent as a defense in the criminal law. The idea of consent is in itself an objective reason for excusing wrongful harmdoing to others. However, it can be overridden by other objective considerations of greater importance. In this paper, I argue that it is only wrongful harmdoing that is criminalizable, as we do not criminalize mere accidents. Furthermore, I argue that a person can as an exercise of her personal autonomy consent to certain harms. But I note that there is a crucial difference between waiving rights that are grounded in an exercise of personal autonomy and waiving rights that violate a person's human dignity: rational autonomy. I conclude that regardless of consent, certain grave harms violate a person's dignity as a human being and therefore are wrongful and criminalizable.

Covert Intervention as a Moral Problem

Today's international community may well view covert action and democracy as mutually exclusive policies. This article examines the practice of covert action in American foreign policy in light of events of the mid-1970s and 1980s, focusing on the scandalous misuse of executive authority and lack of accountability associated with covert means. Often manipulative and sometimes anonymous, covert operations raise critical morality concerns in a democratic society. Whether “any form of accountability is likely to be sufficient to bring the unauthorized use of executive power under control” is the crucial issue to be addressed when examining the practicality of covert actions by the executive branch.