Provocateurs

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values.     

Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions

Many people believe in the intention principle, according to which an agent??s intention in performing an act can sometimes make an act that would otherwise have been permissible impermissible, other things being equal. Judith Jarvis Thomson, Frances Kamm and Thomas Scanlon have offered cases that seem to show that it can be permissible for an agent to act even when the agent has bad intentions. If valid, these cases would seem to cast doubt on the intention principle. In this paper, I point out that these cases have confounding factors that have received little attention in the literature. I argue that these confounding factors undermine the putative force of these cases against the intention principle. Indeed, when cases without these confounding factors are considered, it becomes clear, so I argue, that intentions can be relevant for the permissibility of an act.     

Causing the Conditions of One’s Defense: A Theoretical Non-problem

My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T₂ but culpable at T₁, and that a nonculpable act at T₂ has no bearing on whether an actor was culpable at T₁ when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T₂. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.     

Wrongdoing Without Motives: Why Victor Tadros is Wrong About Wrongdoing and Motivation

A central principle in Victor Tadros’s book, The Ends of Harm, is the means principle (MP) which holds that it is, with limited exceptions, impermissible to use another as a means. Tadros defends a subjective, intention-focused interpretation of the MP, according to which to use another as a means is to form plans or intentions in which the other serves as a tool for advancing one’s ends. My thesis here is that Tadros’s defense of the subjective interpretation of the MP is unsuccessful. To make that case I argue for three claims. First, the subjective interpretation has implausibly harsh implications in certain cases, implying that certain people would be guilty of much more serious wrongs than they can plausibly be thought to have committed. Second, the cases that Tadros offers to argue that the subjective interpretation of the MP must be right are better interpreted as showing that it is impermissible to act on an illicit intention – one that would direct an agent under certain, foreseeable circumstances to perform impermissible acts – than that it is impermissible to act for an illicit reason. Third, while Tadros correctly rejects the objective, causal-role-focused interpretation of the MP – according to which to use another as a means is for the other to play the causal role of means to the good which might be offered to justify the act one performs – there is another way of defending the significance of causal roles, one that has implications that track those of the MP fairly closely. I argue elsewhere at length for this other principle, which I call the Restricting Claims Principle. Here I simply sketch the basic idea in a way sufficient to show that one can escape the dilemma that the MP faces without grabbing either the subjective or the objective horn, and without moving into a consequentialist world in which it is permissible to punish the innocent for the sake of the general welfare.     

论辩护律师的法庭地位——以律师与法官的关系为视角

有关辩护律师法庭地位的理论学说,大体可归纳为辩护人系司法机关、辩护人系当事人的利益代理人和辩护人系限制的司法机关三种类型。我国对辩护律师法庭地位认识的变化,总体上经历了从司法机关理论到当事人利益代理人理论的转变过程。综合考虑我国对律师的管理及定位、我国刑事司法对实体真实主义的追求、刑事审判模式的职权主义传统及未来的改革走向等因素,我国刑事审判程序中辩护人的地位宜建立在限制的司法机关之理论基础上。     

Alon Harel on How to Deliberate Permissibly

Alon Harel defines extreme cases as those in which the only way to avert a destructive threat is to harm innocent people. He rejects traditional consequentialist and non-consequentialist approaches because of the type of reasoning they both employ. I interpret Harel as making two central objections to this form of reasoning. First, traditional approaches require comparisons to be made about the value of human life. Second, decisions in extreme cases, even if permissible, should not be made under the guidance of rules. I argue that these objections, though prima facie plausible, are on reflection relatively weak, and I offer instead a more moderate argument that vindicates Harel’s general thesis that deliberation is morally relevant. More specifically, I argue that whether one acts on certain conditions affects both the moral permissibility of one’s actions and the duties owed by others.     

侵害债权制度法律性质考察

债的相对性原则对保护个人自由的作用卓有成效。但随着人类社会化程度提高,相互依赖性增强,限制个人自由滥用的客观要求日益迫切。为顺应上述社会需要,应突破债的相对性原则,建立侵害债权制度。基于传统债法理论的一些观点没有且无法真正反映该制度的本质,债权物权化理论才是解释该制度唯一可行的观点。     

Toward a General Margin of Appreciation Doctrine in International Law?

Three recent International Court of Justice decisions –Oil Platforms, Avena and Wall in the Occupied Palestinian Territory– highlight the uncertain status of the margin of appreciationdoctrine in the Court’s jurisprudence. The purpose ofthis article is to evaluate, in the light of contemporary practiceof other courts, the current status under international lawof the margin of appreciation doctrine, which encourages internationalcourts to exercise restraint and flexibility when reviewingthe decisions of national authorities, and to offer preliminaryguidelines for future application. The article also discussesa variety of policy arguments concerning the legitimacy andeffectiveness of international courts, which can be raised insupport of the development of a general margin of appreciationdoctrine with relation to some categories of international lawnorms governing state conduct, and it examines potential criticism.Eventually, it argues that the same considerations which haveled to the creation of ‘margin of appreciation type’doctrines in the domestic law of many states and in the contextof specific international regimes (for instance, the EuropeanConvention on Human Rights) also support the introduction ofthe doctrine into general international law. The position ofthe ICJ towards the application of the doctrine therefore meritsreconsideration.     

Willfully Blind for Good Reason

Willful blindness is not an appropriate substitute for knowledge in crimes that require a mens rea of knowledge because an actor who contrives his own ignorance is only sometimes as culpable as a knowing actor. This paper begins with the assumption that the classic willfully blind actor—the drug courier—is culpable. If so, any plausible account of willful blindness must provide criteria that find this actor culpable. This paper then offers two limiting cases: a criminal defense lawyer defending a client he suspects of perjury and a pain doctor who suspects his patient may be lying about her pain. The paper argues that each of these actors is justified in cultivating ignorance about his client’s or patient’s truthfulness. If this is right, then a good theory of willful blindness must distinguish these cases. The article argues that neither Husak & Callender’s motivation-based account of willful blindness nor the recklessness account is able to do so. The paper proposes the following alternative: contrived ignorance constitutes culpable blindness when the decision to remain blind or to cultivate blindness is not itself justified. This Justification approach meshes with our intuitions about willfully blind drug couriers as well as willfully blind lawyers and doctors.     

The Significance of Transferred Intent

The doctrine of transferred intent (or transferred “malice” in England) generally provides that if A attempts to harm B but, because of bad aim, misses and accidentally causes the same harm to befall C, A’s harmful intent vis-à-vis B is transferred to C, thus rendering A guilty of intentionally harming C. Commentators acknowledge the doctrine to be a legal fiction, but they differ regarding whether the fiction produces just results, some believing it does, others believing that A is guilty at most of attempting to harm B rather than intentionally harming C. Commentators who agree that the fiction produces just results nevertheless differ regarding whether the fiction should be retained or whether A’s intent to harm “a” person, in this case, B, is the only intent that signifies for crimes of intentional harm, regardless of whom A eventually harms. Doug Husak sought to achieve reflective equilibrium between intuition and theory regarding bad-aim cases by proposing in 1996 that A be punished for attempting to harm B (rather than for harming C) but sentenced as if he had harmed B. I once believed that Husak was correct. But I now have doubts, in part because Husak, along with others, cannot explain why the strength of people’s intuitions regarding A’s responsibility in bad-aim cases depends upon (1) C’s being a reasonably foreseeable victim, and (2) C’s being harmed by the same threat of force that A initially unleashed against B. I argue that one cannot achieve reflective equilibrium in bad-aim cases without inquiring into why resulting harm matters in criminal law, and that when one does, one discovers that just as people’s intuitions regarding whether intentional harms are proximate depend upon how resulting harms occur, so, too, people’s intuitions regarding whether an actor is guilty of intentional harm depend upon how resulting harm comes about.     

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.     

Cybercrime jurisdiction

The principles that govern a sovereign’s exercise of jurisdiction to prohibit conduct and to sanction those who violate such prohibitions are well-established as to conduct occurring in the real, physical world. These principles evolved over the last several millennia, as law increased in sophistication and life became more complex. Real-world crime is, almost exclusively, a local phenomenon; the perpetrator(s) and victim(s) are all physically present at a specific geographical point when a crime is committed. The principles that govern the exercise of criminal jurisdiction are therefore predicated on the assumption that “crime” is a territorial phenomenon. Cybercrime makes these principles problematic in varying ways and in varying degrees. Unlike real-world crime, it is not physically grounded; cybercrime increasingly tends not to occur in a single sovereign territory. The perpetrator of a cybercrime may physically be in Country A, while his victim is in Country B, or his victims are in Countries B, C, D and so on. The perpetrator may further complicate matters by routing his attack on the victim in Country B through computers in Countries F and G. The result of these and other cybercrime scenarios is that the cybercrime is not committed “in” the territory of a single sovereign state; instead, “pieces” of the cybercrime occur in territory claimed by several different sovereigns.     

庭审阶段补充侦查制度合理性省思——以审判中心主义为背景

庭审阶段的补充侦查制度是职权主义诉讼结构和"侦查中心主义"的产物,其理念是追求"实体真实"。该制度不符合当前以审判为中心的刑事诉讼制度改革的精神,有违控辩平衡的诉讼原则,也不利于保障被告人的人权,导致司法资源浪费和诉讼效率降低,且有侦查权僭越审判权之嫌。针对上述弊端,结合检察机关正在实行的以"案-件比"为中心的考核机制,宜尽快废除庭审阶段的补充侦查制度。作为补偿,应当赋予控辩双方平等的证据申请权,改由人民法院进行庭外调查,庭外调查的重点应是有利于被告人的证据。对于庭审阶段翻证的证人,不宜由侦查(调查)机关单方面询问核实,而应当通知其出庭作证。     

Authority,Self-Determination,and Community in Cosmopolitan War

This paper examines Cécile Fabre’s cosmopolitan reductionist approach to war. It makes three main points. First, I show that Fabre must ‘thin down’ justice’s content in order to justify the cosmopolitan claim that the same rights and duties bind people everywhere. Second, I investigate Fabre’s account of the values at stake in national sovereignty and territorial integrity. Can cosmopolitanism explain why it is permissible to fight in defense of one’s political community? I doubt it. I argue that Fabre’s reductionist approach cannot justify national self-defense in many cases. Finally, I explore the role that authoritative institutions play in specifying the rights and duties we have under cosmopolitan justice. I believe Fabre takes an overly simple view of the relationship between rights, duties, and authoritative institutions. A more complex account may leave less space for private war on the part of individuals than she does.     

税收协定的国内适用——基于《企业所得税法》第58条的考察

《企业所得税法》第58条试图全面解决税收协定在国内适用的三个问题,即条约的国内法效力、适用方式和法律位阶。对于如何理解第58条中的"不同规定"与"办理",存在"绝对主权说"和"国际条约说"之争。虽然两种学说的理论依据和具体主张有所不同,但它们均以维护法律体系的纯粹性为最高目标。这两种学说并不符合中国的混合一元条约适用体制。当前,中国应采取更具实质主义导向的方法适用税收协定。     

The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”     

侵权违法阻却事由论纲

违法阻却事由与抗辩事由、免责事由系不同的概念,我国侵权法应在承认违法性独立地位的基础上,赋予违法阻却事由以独立意义。应该在坚持“结果不法说”的违法性理论前提下,对侵害他人权益行为进行有限的违法性推定,将属于合法权利行使的部分从传统违法阻却事由中剥离出去。要深刻把握违法性与可责性在传统构成要件理论中的不同价值及内在逻辑顺序,以“结果不法说”为基点,将违法阻却事由适用于全部侵权行为,明确虽具违法性但不具可贵性加害行为的定性,并以此为契机,确立“侵权行为”在现代侵权法中的核心地位。     

Morality Influences How People Apply the Ignorance of the Law Defense

In four empirical studies, we showed that laypeople apply the ignorance of the law defense differently depending on the perceived morality of the defendant's course of conduct at the time of the illegal act. Moral and neutral defendants who pled ignorance of the law were afforded leniency, whereas immoral defendants were sentenced as though they were not ignorant, even when defendants in all three conditions violated identical laws. These findings suggest that laypeople adopt a just deserts approach to criminal law, which influences their responsiveness to a criminal defendant's claim to be ignorant of the law. We discuss the implications of these findings for criminal law and argue that legal doctrine should reflect laypeople's moral intuitions.     

现代风险社会中危害性原则的角色定位

功利制约正义的国权主义刑法思想会使刑法成为控制风险与不安全性的重要工具,促使危害性原则内涵不断膨胀,刑法的社会机能随之扩张并使危害性原则的人权保障机能与批判机能逐渐丧失。在现代风险社会语境下,以保障人权、自由为本位的人本主义刑法理念仍然是立法与司法的基本准则。风险的控制应该是有梯度的,危害性原则必须与刑法谦抑思想并用才能成为刑事立法的指导原则;必须在形式的构成要件框架内,在形式理性优先于实质理性的前提下才能成为刑事司法的指导原则。     

Self-Mediated Risk in Criminal Law

The paper addresses the question whether ‘self-mediated risk’ – risk whose coming-to-fruition depends on future volitional conduct by the actor himself – bears on the wrongfulness of an actor's present conduct. Moral philosophers have long been divided on this question. ‘Actualists’ take the view that an actor's present moral obligations do, in fact, depend on what he or she actually is likely to do in the future. In contrast, ‘possibilists’ take the view that an actor's present obligations depend only on what he or she will have the capacity to do in the future. This paper argues that actualism better captures the morality that underlies the criminal law. The paper also explores actualism's implications for criminal law. Among these is the implication that the locus of moral fault in criminal cases sometimes is temporally removed from the conduct that triggers the assignment of blame.