Responsibility and the Limits of Conversation

Both legal and moral theorists have offered broadly “communicative” theories of criminal and moral responsibility. According to such accounts, we can understand the nature of responsibility by appealing to the idea that responsibility practices are in some fundamental sense expressive, discursive, or communicative. In this essay, I consider a variety of issues in connections with this family of views, including its relationship to free will, the theory of exemptions, and potential alternatives to the communicative model. Focusing on Michael McKenna’s Conversation and Responsibility, I argue that communicative accounts, and the conversational model in particular, direct our attention to important and under-appreciated elements of our responsibility practices. However, rather than focusing on a model of conversation-as-address, as McKenna does, we do better to regard gossip as the paradigmatic conversational form that captures the main features of moral responsibility.     

Probing the Depths of the Responsible Corporate Officer’s Duty

Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law.     

The Responsibility Gap in Corporate Crime

In many cases of criminality within large corporations, senior management does not commit the operative offense—or conspire or assist in it—but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine—including broadening of the presently narrow “responsible corporate officer” doctrine—so as to authorize such punishment do not fare well under the justificatory demands of criminal law theory. The principal obstacle to such arguments is the large industrial corporation itself, which necessarily entails kinds and degrees of delegation and risk-taking that do not fit well with settled concepts about mens rea and omission liability. Even the most egregious and harmful management failures must be addressed through design and regulation of the corporation rather than imposition of individual criminal liability.     

Transgression and Standard Theories: Contributions Toward Penal Abolition

In this paper I propose a transgression theory and a standard theory toward penal abolition. I argue that given the ubiquity of “crime” in human relationships, to speak of “criminal behavior” as deviant nullifies the concept deviance (abnormal, out of the ordinary, etc.). After demonstrating that empirically the opposite is the case, I argue for a transgression theory (that most human beings regularly act in ways that transgress the norms and laws they establish) and propose a standard theory (that human beings are both maintainers and transgressors of the social orders they establish). My paper challenges the foundational language (constructions) of “criminal justice” logic that ignore the continuity of the past in the present (white supremacy, neocolonialism, racial capitalism, and gendering enslavement), and that fortify discourse and practice from recognizing, eliminating and standing accountable by rectifying centuries of white privilege, heteronormativity, and the oppression of nonwhite bodies.     

指挥官刑事责任基本理论

指挥官刑事责任是指挥官因为其下级实施了犯罪而应当承担的一种共犯责任。该理论在20世纪随着一系列重要的国际刑事司法实践而逐渐形成,并在当前主要的国际刑事法律中得到了体现。要追究指挥官的刑事责任,必须证明三点:具有上下级关系;上级知道或者应当知道下级的罪行;上级指挥官未能采取合理、必要的措施阻止犯罪或者惩罚罪犯。但是,无论是在司法实践中,还是在理论研究上,人们对这个原则还有不同的认识与做法,一个科学、合理的指挥官刑事责任理论体系还有待建立。     

On Self-Awareness in the Sautrāntika Epistemology

This paper aims to examine the role of self-awareness (svasa?vedana) for the Sautrāntika epistemological tenet known as the doctrine that cognition has a form (sākārajñānavāda). According to this theory, we perceive external objects indirectly through the mental forms that these objects throw into our minds, and this cognitive act is interpreted as self-awareness. However, if one were to interpret the cognitive act such that the subjective mental form (grāhakākāra/svābhāsa) grasps the objective mental form, the position of the subjective mental form becomes problematic—it becomes superfluous, as can be demonstrated with reference to Dignāga’s explanation of the Sautrāntika’s pramā?a-pramā?aphala argument. As a result, self-awareness itself becomes precarious. In connection with this problem, an argument on the relationship between self-awareness and the yogic perception of other minds given by Dharmakīrti leads us to discover that self-awareness is important for establishing subjectivity, in order to avoid another person’s access to one’s own mental states. Through examining Pramā?avārttika 3.448–459, this paper tries to find a way to interpret the svābhāsa-factor without relating to its object-factor (grāhyākāra), and to shed new light on the problem of subjectivity in the Sautrāntika epistemology.     

The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

In this contribution I address the type of emergency that threatens a state’s monopoly of violence, meaning that the state’s competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second—if criminal jurisdiction is not in contradiction with the state of emergency—the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.     

Reflections on <Emphasis Type="Italic">Prince</Emphasis>, Public Welfare Offenses, <Emphasis Type="Italic">American Cyanamid</Emphasis>, and the Wisdom of the Common Law

The fundamental requirement of Anglo-American criminal law is that crime must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus reus. And yet, the criminal law is shot through with discordant lumps of strict liability—crimes for which no mens rea is required. Ignoring the conventional normative objections to this aberration, I distinguish two different types of strict criminal liability: the type that arose at common law and the type associated with the public welfare offenses that are the product of twentieth and twenty-first century legislation. Using famous cases as exemplars, I analyze the two types of strict liability, and then examine the purposes served and incentives created by subjecting individuals to strict liability. I conclude that common law strict liability is rational in that it advances the purposes of the criminal law, while the public welfare offenses are at best pointless and at worst counterproductive. I suggest that in this respect the common law contains more wisdom than the results of the legislative process.     

Can Strict Criminal Liability for Responsible Corporate Officers be Justified by the Duty to Use Extraordinary Care?

The responsible corporate officer (RCO) doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, not to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine.     

Corrective Justice as A Principle of Criminal Law: A Prolegomenon

This article argues that corrective justice is an adequate principle of criminalization. On my interpretation, corrective justice holds that, in order for an action to count as a crime, there needs to be a plausible normative story about an offender having violated the interests of a victim in a way that disturbs their relationship as equal persons and a subsequent story about responding to crime in a way that corrects this disturbance. More specifically, I claim that corrective justice is concerned with the protection of interests that persons have in owning private goods throughout standard interactions with other persons. The argument proceeds in three steps. First, I specify the subject-matter that principles of criminal law need to ground and provide an outline of the idea of corrective justice. Second, I show that corrective justice can account for the main cases of crime and the salient modes of criminal responsibility. I also argue that corrective justice can make sense of two prima facie recalcitrant types of cases (rape and inchoate offenses). Third, and finally, I address two objections to my corrective justice theory of criminal law. The first concerns the implications corrective justice has for locating criminal law along the private/public law divide. The second objection raises the putatively problematic consequences corrective justice has for understanding the separation between criminal and civil law.     

Can Flux Bring About Flux? An Appraisal of the Buddhist Momentarist’s Response to the Causal Objection

The doctrine of radical impermanence (k?a?abha?ga) expresses the temporal dimension of Buddhist metaphysics, especially in the philosophy of Dharmakīrti and his successors. Most straightforwardly, the doctrine says that everything that exists is momentary; we are not impermanent (anitya) in the sense that we perish eventually, say when our brain ceases functioning, but rather we perish immediately upon conception. The person who begins to write this sentence and the person who completes it are, strictly speaking, different entities. However, there is a devastating problem for the doctrine: How can any momentary entities be causally efficacious (arthakriyā), and more particularly, given their extremely meager duration of existence, how might the momentarist explain the phenomena of cooperation among contemporaneous entities to occasion novel entities, such as seeds, soil, water and sunlight giving rise to sprouts? Even more difficult, can the momentarist offer such an explanation that does not undermine his negative claim that non-momentary things cannot exist? ?āntarak?ita (eighth century) and Ratnakīrti (eleventh century) offer answers, but they both fail. By meticulously analyzing and evaluating their arguments, I identify the stumbling blocks of their arguments and show what needs to be done to save the doctrine of momentariness.     

Before the Law: Criminalization,Accusation and Justice

This review essay critically engages three socio-legal books directed to the changing bases of criminalization; namely, Lacey (In search of criminal responsibility: ideas, interests, and institutions, Oxford University Press, Oxford, 2017); Farmer (Making the modern criminal law: criminalization and civil order, Oxford University Press, Oxford, 2016); and Norrie, Justice and the slaughter bench: essays on law’s broken dialectic, Routledge, New York, 2016). The texts explore how modern (largely English) institutions of criminal law proscribe, assign responsibility and appear through contradictory socio-political ‘constellations’. They variously reference criminal law’s expanding punitiveness as it: embraces revived character-based ways of attributing responsibility via ideas of risk; drifts away from a social function of creating civil order; and, works through a ‘broken dialectic’ that fails to recognize its ethico-political auspices. The ensuing ‘overcriminalization’ is referenced variously, but this review questions a tendency to work off legal lexicons, with consequent limitations placed on the scope of social analysis. Referring to Roman and Cape colonial forms of criminalization, this review highlights processes of accusation that call subjects to account as criminals, thereby signalling an initiating socio-political layer upon which unequal forms of overcriminalization rest.     

Certain Questions in the Further Development of the Theory of Criminal Law

The achievements of Soviet criminal lawyers in elaborating the basic concepts of criminal law (crime, corpus delicti, complicity, stages of a crime, punishment, special and general prevention, etc.), in establishing boundaries between the norms of criminal law and those of morality, between legal and moral responsibility, between criminal law and other branches of law, etc., are doubtless of interest for the development of the theory of criminal law under the conditions of the state of the entire people. These achievements have promoted the strengthening of legality and constitute a solid basis for further improvement of the norms of criminal law. At the same time, certain concepts and institutions of criminal law that have taken root in theory and practice require critical re-examination as a consequence of various circumstances and, primarily, of certain historical events such as the 20th and 22nd congresses of the CPSU and the adoption of the new CPSU Program. The latter attaches particular significance to ideological work, the education of the new man, overcoming the vestiges of capitalism in human consciousness and behavior, and also poses the objective, new to world history, of uprooting crime within a definite and comparatively brief period of time.     

Reading Non-Dualism in Śivādvaita Vedānta: An Argument from the <Emphasis Type="Italic">Śivādvaitanirṇaya</Emphasis> in Light of the <Emphasis Type="Italic">Śivārkamaṇidīpikā</Emphasis>

This article examines Appaya Dīk?ita’s intellectual affiliation to ?ivādvaita Vedānta in light of his well-known commitment to Advaita Vedānta. Attention will be given to his ?ivādvaitanir?aya, a short work expounding the nature of the ?ivādvaita doctrine taught by ?rīka??ha in his ?aiva-leaning commentary on the Brahmasūtra. It will be shown how Appaya strategically interprets ?rīka??ha’s views on the relationship between ?iva (i.e., Brahman), its power of consciousness (cicchakti) and the individual self (jīva), along the lines of pure non-dualism (?uddhādvaita). In this context, the hermeneutical role of the daharavidyā doctrine will be considered with reference to Appaya’s ?ivādvaita magnum opus, the ?ivārkama?idīpikā.     

Stealing more is better? An economic analysis of Islamic law of theft

This study is the first attempt (in the field of Law and Economics) to apply economic analysis to shari’a or Islamic criminal law, in particular, that aspect of the law pertaining to theft. Shari’a imposes two main punishments for theft; hadd, a fixed penalty of amputation of the offender’s right hand under certain conditions and ta’zir, a discretionary punishment, less severe than hadd. From the viewpoint of marginal deterrence and multiplier principles, lesser crimes with low social harm are punished more severely with hadd whereas crimes with high social harm are punished with ta’zir. Moreover, as the probability of detection and sanction is less in those crimes of high social harm, criminals would have more incentive to commit them. Consequently, if Islamic criminal law is to be applied in its current form, crimes of high social cost are likely to become more frequent.     

Drug Treatment Policy in the Criminal Justice System: A Scoping Literature Review

This scoping review sought to map the emerging evidence on use of harm minimization drug treatment programs in criminal justice settings. A search of various data bases including Cochrane Database of Systematic Reviews Medline, ProQuest, SAGE Premier, Scopus, Taylor & Francis Online, and Web of Science yielded eight studies that met inclusion criteria. The available evidence suggests increasing adoption of harm minimization policy oriented programs by countries around the world. Specific programs adopted include needle and syringe exchange, methadone maintenance, buprenorphine maintenance and treatment in lieu of incarceration. Each of these programs has evidence to support their effectiveness in relation to individual harm reduction, disease reduction, increase treatment retention and reduced criminality. This article considers implications of the adoption of harm minimization policies by criminal justice systems.     

Exploring New Directions in Self-Forgiveness Research: Integrating Self and Other Perspectives on Moral Repair

Self-forgiveness is not only shaped by processes exclusively within the self, nor are its consequences limited to the self. The Handbook of the Psychology of Self-Forgiveness (Woodyatt et al. 2017c) offers a timely collection of the growing and diverse scholarship on self-forgiveness, as well as a valuable resource for researchers. More importantly, however, it also provides a launching point for further theoretical and empirical innovations. In particular, we highlight the need to further investigate the role of others in the search for self-forgiveness and ultimately, moral redemption for the self. We reflect on the evolution and conceptualization, antecedents and consequences, and application of self-forgiveness. We then suggest new avenues for research that integrate self and other perspectives to understand an individual’s journey through self-forgiveness within a broader social context. We propose that we can conceptualize self-forgiveness and forgiveness as two complementary sides of the same process toward moral repair.     

Crime,Employment and Social Welfare: An Individual-Level Study on Disadvantaged Males

Objectives

We seek evidence for economic and social mechanisms that aim to explain the relationship between employment and crime. We use the distinctive features of social welfare for identification.

Methods

We consider a sample of disadvantaged males from The Netherlands who are observed between ages 18 and 32 on a monthly time scale. We simultaneously model the offending, employment and social welfare variables using a dynamic discrete choice model, where we allow for state dependence, reciprocal effects and time-varying unobserved heterogeneity.

Results

We find significant negative bi-directional structural effects between employment and property crime. Robustness checks show that only regular employment is able to significantly reduce the offending probability. Further, a significant uni-directional effect is found for the public assistance category of social welfare on property offending.

Conclusion

The results highlight the importance of economic incentives for explaining the relationship between employment and crime for disadvantaged individuals. For these individuals the crime reducing effects from the public assistance category of social welfare are statistically equivalent to those from employment, which suggests the importance of financial gains. Further, the results suggest that stigmatizing effects from offending severely reduce future employment probabilities.

     

The Identity of Person and World in <Emphasis Type="Italic">Caraka Saṃhitā</Emphasis> 4.5

This paper examines the puru?a concept in the Caraka Sa?hitā (CS), an early text of Ayurveda, and its relation to Indic thinking about phenomenal worldhood. It argues that, contrary to the usual interpretation, early Ayurveda does not consider the person to be a microcosmic replication of the macrocosmos. Instead, early Ayurveda asserts that personhood is worldhood, and thus the person is non-different from the phenomenal totality (spatial and temporal) of his existence. This is confirmed by the CS’s several definitions of puru?a, which are alternately posed in terms familiar to Vai?e?ika, early (pre-“classical”) Sā?khya, early Buddhism, and Upani?adic monism. It is likewise confirmed by the Ayurvedic logic of sāmānya (translated as “identity”), which governs the meaning of the list of person-to-world correspondences in CS 4.5 and its often misinterpreted claim, puru?o’yam lokasa?mita?. Finally it is confirmed in the program of Ayurvedic therapeutics, which aims at establishing various kinds of “appropriateness” for the sake of effecting samayoga—the “harmonious joining” of person and world.