Intoxication and Culpability

I tackle the difficult problem of specifying how voluntary intoxication affects criminal culpability generally and recklessness in particular. I contend that the problem need not be conceptualized as an instance of actio libera in causa, namely the situation in which persons do something at t1 to culpably create the conditions of their own defense at t2. Instead, I argue that we need only consider intoxicated defendants at t2 in order to justify their punishment. In the course of defending my view, I challenge conventional wisdom about both the nature of recklessness and the effects of intoxicants. I conclude by discussing a possible ground on which involuntary intoxication might be treated differently.     

Culpability and the Politics of Love

In L’amour du censeur, a seminal work published in French in 1974 but as yet untranslated into English, Pierre Legendre uses the Freudian Oedipus complex as a reading grid with which to decipher the libidinal dynamics underpinning Christian civilisations. This paper exposes Legendre’s work, and complements it by elucidating the play of the different modalities of identification conceptualised by Freud in Group Psychology. Horizontal and vertical identifications channel the investments that lend consistency to a political figure, an ideology, a discourse. Legendre’s work reminds us that the primary function of a given civilisation is to institute a workable libidinal economy for its subjects, and that politics names the knot of the social bond.     

On Psychopaths and Culpability

Law and Philosophy -     

Mistake of Law and Culpability

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law.     

罪责的客观化与期待可能性理论的命运

当代刑法对风险控制与危害预防的强调,使得罪责概念的内容经历了重大的变化。随着对行为人的控制能力的强调,以选择自由为基础的传统规范责任论被废弃。期待可能性被从责任论中剥离出来,其重要性也日益呈下降的趋势。期待可能性理论在当代所遭遇的命运,折射出刑法任务观的重新定位对刑法体系中具体制度与理论的重大影响。     

罪责的社会化与规范责任论的重构——期待可能性理论命运之反思

当前期待可能性理论研究中的认识误区在于,将期待可能性等同于规范责任论本身.罪责概念并没有固定的连续意义,随着刑法任务观的调整,它经历了重要的意义裂变.罪责的客观化与社会化意味着责任基础的改变,最终引起规范责任论的重构.期待可能性的命运不仅折射出罪责领域所经历的变革,也折射出刑法的整个基本运作框架发生重大转型的事实.     

Entrapment,Culpability, and Legitimacy

Law and Philosophy - In this paper, I offer a novel account of entrapment. This account suggests that the wrongness of pursuing punishment in cases of entrapment consists of two distinct...     

Military Veterans, Culpability, and Blame

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this Article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This Article analyzes the two accounts and raises some doubts about both. This Article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.     

大陆法系犯罪论体系的嬗变

通过探讨大陆法系的犯罪论体系的嬗变,指出它仍然存在诸多需要进一步研究的问题,进而,认为对我国传统的犯罪构成理论的批判是值得商榷的.我国传统的犯罪构成理论仍然具有生命力,应该暂缓引进大陆法系的犯罪论体系.     

Discontinuity and Disaster: Gaps and the Negotiation of Culpability in Medication Delivery

This paper shows how discontinuities in the process of drug delivery enable but also underdetermine the isolation of a culprit in adverse medication events. A case example illustrates how we are forced to abandon conceptualizations of blame that assume a dichotomy (either culpable or not), and shift instead to a more nuanced version that estimates the degree to which an actor desired, generated, or could have foreseen the harmful outcome, and the extent to which constraints external to the actor altered the event. The paper concludes that meaningful safety interventions in a system as diverse, socially embedded and complex as health care delivery cannot just build on "good science" (e.g., good methods) to generate "root" causes. Rather, they need to somehow be sensitive to how and which narratives of success and failure are created, as these constrain which countermeasures are likely to be encouraged, funded, and accepted.     

我国国家赔偿归责原则之反思与重构

按国家赔偿法的规定,国家赔偿的归责原则是违法原则。这个原则存在着自相矛盾、与刑事诉讼法规定不一致、过于严格限制受害人获得国家赔偿以及与国际上国家赔偿归责原则多样化趋势不协调等缺陷。国家赔偿的归责原则应当是一个归贵原则体系,在这个体系中,有一般性的、具有普适性的一般原则,又有特殊性的、仅针对特殊事项适用的特殊原则。一般原则仍然是违法原则,而特殊原则包括过错原则、无过错原则和结果原则等,各项原则所适用的具体范围又有着一定的差异和不同。     

以违法与责任为支柱构建犯罪论体系

对犯罪实体的认识不能仅停留在"客观"与"主观"两个概念上;犯罪论体系应当以价值或目的作为出发点,从而体现评价;以违法与责任为支柱构建犯罪论体系,具有充分根据与内在合理性。     

我国刑事赔偿制度归责原则反思

对刑事赔偿的归责原则,我国有学者主张适用过错责任原则,有学者主张适用违法责任原则,还有学者主张适用结果责任原则,等等。这些原则在解决应否赔偿的问题上都存在难以克服的缺陷。之所以如此,主要是因为刑事赔偿制度与一般侵权赔偿制度有重大区别,刑事赔偿程序由国家向受害者支付赔偿费用的程序以及追偿程序两大程序构成,这两大程序应适用不同的归责原则:前一程序应适用结果责任原则,后一程序应适用过错责任原则。我国国家赔偿法对刑事赔偿归责原则的规定存在严重缺陷,应当进行彻底重构。