Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy.     

Law,the State,and the Dialectics of State Crime

Drawing on material from a study of civil society and state crime in six countries, this article reflects on two themes from Chambliss’s work: the debate between state-centred and more pluralistic views of law, and the “dialectical” approach to the analysis of state crime. It argues for a more pluralistic approach to law than Chambliss and Seidman adopted in Law Order and Power, along with a broader approach to the definition of state crime as a form of deviant behaviour. Case studies from the civil society research illustrate how the strategies adopted by organizations challenging state practices can be understood in terms of an interplay between different forms of law. With some qualifications, we support Chambliss’s dialectical approach, and attempt to clarify just what the term “dialectical” means. Finally we bring together the two strands of the argument to propose an approach to state crime founded on “dialectical legal pluralism”.     

PTSD,Endophenotypes, the RDoC,and the DSM-5

The search for endophenotypes that stand between genetics and disease has been applied to the diagnostic entity of Posttraumatic Stress Disorder (PTSD). Advances are being made in understanding the pathway to disorder in PTSD in terms of brain regions, neuronal networks, stress-related systems (e.g., the hypothalamic–pituitary–adrenal (HPA) axis), and their underlying genetic and neurogenetic bases. The latter are affected by gene–environmental interactions and epigenetic effects, and the environment and context reciprocally interrelate with them, as well. Therefore, a primary focus on (neuro)pathophysiological intermediates in the disease pathway, as appears emphasized in the research domain criteria (RDoC) approach to etiology of psychiatric disorder, and to which the Diagnostic and Statistical Manual of Mental Disorders 5 (DSM-5) subscribes, might detract from a more inclusive biopsychosocial approach that would be more applicable in the case of PTSD. The paper undertakes a comprehensive review of the recent literature in the areas of endophenotypes, neurogenetics, epigenetics, neural networks, HPA axis, neuronal networks, pathways, the PTSD five-factor model, allostasis, and the RDoC criteria for psychiatric diagnosis, and then returns to the topic of endophenotypes. Neuronal networks constitute one integrating area that could help in arriving at an appropriate model of PTSD endophenotype. Pathway analysis provides a rich field for discerning individual differences in PTSD development, more so than the static approach of using DSM-5 symptom criteria. A model of endophenotypes is presented, which considers these factors in relation to PTSD. The paper concludes with implications for the DSM-5, for practice and for court, especially that it would be premature to seek individual biomarkers of PTSD given the current state of knowledge, even if it is burgeoning.     

The Dead, the Law, and the Politics of the Past

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of 'ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been 'disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.     

Retract,Expand: Libel Law,the Professionalization of Journalism,and the Limits of Press Freedom at the Turn of the Twentieth Century

At the turn of the twentieth century, many judges and juries considered libel law to be a robust check against a reckless and sensational press. So how did the newspaper industry convince seventeen state legislatures between 1885 and 1915 to pass laws easing liability for accidental libel? This article analyzes a debate surrounding libel law reform to tell the story of how retraction statutes were conceived in press association meetings, enacted in spite of lawyers' reservations, and challenged in state supreme courts during a pivotal era in the professionalization of journalism. It offers a better understanding of the power of the institutional press to influence Americans' conception of the purpose of press freedom and the role of journalism in democratic society, and a clearer picture of the beginnings of a more press friendly era in libel law, from the wire service defense to the actual malice standard.     

The good, the bad, the ugly, and the Colombian peace plan

Among the many wars thatColombia is fighting, there are two that itis definitely losing – those forgovernment legitimacy and against poverty.Although the country has always shown anearly infinite capacity to turn itselfaround, its traditionally praised democracyshows fresh signs of erosion that lookalmost impossible to reverse. With solidinstitutions no longer standing, theguerrillas, the paramilitary, the corruptjustice system, and the drug producerscontinue to thrive like perennial weeds.Massacres, bombings, kidnappings and thedestruction of infrastructure continue toproduce a devastating effect on theColombian psyche. The good, the bad and theugly mix together in a pitiable realismbetween civil society and state. Theoutcome is poverty, dissatisfaction, andlack of legitimacy and hope.     

Rights,women, and the state of Pakistan

Violence against women is a problem around the world. Addressing the issues of physical and sexual violence against women has been a complicated endeavor for criminologists. Much of the traditional criminological research on violence against women has frequently focused on rape as a crime of power between individuals. However, this framework has been expanded to incorporate the analysis of rape during times of war and rape as a state crime. In these cases, rape serves a broader purpose within the military and social structure. By focusing on the specific case of the gang rape of Mukhtar Mai, the goal of this paper was to demonstrate and analyze the role of the state in many of these crimes. Mukhtar Mai’s case should not be understood in isolation, but as a way to illuminate the role of the state in these numerous crimes.     

Darwall,Habermas, and the Fluidity of Respect

What moral commitments do we manifest when we make claims upon one another? The practice of claiming is inescapable, and so any normative presuppositions of that practice are similarly inescapable (at least on pain of self‐contradiction). This inquiry thus promises an Archimedian point from which to address intractable moral disagreements in modern society. Whatever we happen to differ about, we can be shown to agree about these premises, and therefore to share commitment to whatever can be derived from these premises. The most prominent developer of this approach is Jürgen Habermas, who has sought to ground, inter alia, religious and cultural rights on this basis. I will argue that the strategy cannot resolve disagreement in the way Habermas hopes, and that this has been shown, perhaps inadvertently, by Stephen Darwall, who for very different reasons seeks to work out the premises of the practice of claiming (and who never discusses Habermas). Darwall has no apparent interest in finding a universally convincing basis for resolving moral controversies. He seeks to address, not the practical problems of a pluralistic society, but some specialized, albeit important, questions of metaethics, having to do with what kind of entity a moral claim is 1 1 These are the focus of a symposium on Darwall's book The Second Person Standpoint (Darwall 2006) in Ethics 118 (Oct. 2007). To avoid misunderstanding: I am not here attempting a comprehensive comparison of Darwall and Habermas, but only juxtaposing their views on a single important issue.
. Both Habermas and Darwall think that discourse presupposes a kind of respect among persons. Darwall, however, shows that respect is too fluid, and takes too many possible forms, to ground any but the most trivial specific moral claims.     

Pierre Bayle, the Rights of the Conscience, the "Remedy" of Toleration

Pierre Bayle (1647–1706) is often considered one of the staunchest defenders of toleration, especially in the domain of religion. His Commentaire philosophique , published in 1686, one year after the revocation of the Edict of Nantes, argued for a broad idea of toleration, to be extended with no exceptions to all sects and religions. However, his thought can hardly be reduced to an exaltation of the "rights of the conscience," for he realized very soon that such an exaltation risks bringing forth religious fanatism, which in turn is the cause of religious wars and acts of violence. Toleration, in these conditions, is only a political remedy for the sickness of the human mind.     

Legal Hybridity,Trust, and the Legitimacy of the Shari'ah in the Bangsamoro

Legal hybrids have the potential to address justice and development issues in both conflict and postconflict settings. Using the Philippine Shari'ah court system as a case study, this study demonstrates that state hybrids suffer from legitimacy and capacity issues that also constrain their ability to deliver effective justice services and respond to conflict challenges. Forging cooperative networks between secular courts and Shari'ah courts and between local justice personnel and central justice authorities can enhance the effectiveness and legitimacy of a formalized legal hybrid. This can assist in addressing the justice deficit that fuels the cycle of conflict and sustain peacebuilding efforts postconflict.     

Money,Mortgages, and the Conquest of America

In colonial America, land acquired new liquidity when it became liable for debts. Though English property law maintained a firm distinction between land and chattel for centuries, in the American colonies, the boundary between the categories of real and personal property began to disintegrate. There, the novelty of easy foreclosure and consequent easy alienation of land made it possible for colonists to obtain credit, using land as a security. However, scholars have neglected the first instances in which a newly unconstrained practice of mortgage foreclosure appeared—the transactions through which colonists acquired land from indigenous people in the first place. In this article, I explore these early transactions for land, which took place across fundamental differences between colonists’ and native communities’ conceptions of money, land, and exchange itself. I describe how difference and dependence propelled the growth of the early American contact economy to make land into real estate, or the fungible commodity on the speculative market that it remains today.     

Departmentalization, migration, and the politics of the family in the post-war French Caribbean

This article examines the ways in which metropolitan French officials attempted to deal with the “population problem” in Martinique and Guadeloupe after they became overseas departments (DOMs) of France in 1946. Warning of a demographic crisis in the Antilles, French administrators targeted what they saw as a loose family structure and promoted European family values of Christian marriage and a stable nuclear family. The government justified smaller social subsidies to citizens of the new DOMs by citing the supposedly problematic nature of the Caribbean family and its difference from the French norm. In 1963 the government initiated a wave of emigration to the metropole through an agency called BUMIDOM which was to decrease birth rates in the Antilles and provide much-needed unskilled labor in France itself. Although the impact of emigration on the birthrate is unclear, one lasting legacy of this period was the acute sense of injustice many Antilleans felt at being treated unequally by the state. While birth rates have gone down in the DOMs it had little to do with the acceptance of European family models.     

Personhood,property rights,and the permissibility of abortion

The purpose of this paper is to argue that the tactic of granting a fetus the legal status of a person will not, contrary to the expectations of opponents of abortion, provide grounds for a general prohibition on abortions. I begin by examining two arguments, one moral (J. J. Thomson's ‘A Defense of Abortion’) and the other legal (D. Regan's ‘Rewriting Roe v. Wade’), which grant the assumption that a fetus is a person and yet argue to the conclusion that abortion is permissible. However, both Thomson and Regan rely on the so-called bad samaritan principle. This principle states that a person has a right to refuse to give aid. Their reliance on this principle creates problems, both in the moral and the legal contexts, since the bad samaritan principle is intended to apply to passive refusals to aid; abortion, however, does not look like any such passive denial of aid, and so it does not seem like the sort of action covered by the bad samaritan principle. In defense of the positions outlined by Thomson and Regan, I argue that the apparent asymmetry between abortion and the usual type of case covered by the bad samaritan principle is only apparent and not a genuine problem for their analyses. I conclude with a defense of the morality of the bad samaritan principle.     

Race,Ethnicity, Threat,and the Designation of Career Offenders

Florida statutes allow for the application of enhanced sentences to defendants designated as “Career Offenders.” The application of these laws is discretionary and as such, prosecutors seek the designation for a fraction of the defendants who qualify. Utilizing Hierarchical Generalized Linear Modeling, this paper examines whether individual attributes, such as race and ethnicity, impact an individual's likelihood of receiving the Career Offender designation for 13,704 males sentenced to prison between 2002 and 2004. The second-level analysis incorporates county characteristics into the equation and tests whether these predictors have either a direct or a cross-level effect on the relationship. The broad theoretical framework that guides the present research is grounded in the social threat and social control perspective, which argues that minorities on both the individual and aggregate levels may be perceived as threatening in ways that can mobilize or enhance social controls.     

Mala Prohibita,the Wrongfulness Constraint,and the Problem of Overcriminalization

Law and Philosophy - The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic...     

Departmentalization,migration, and the politics of the family in the post-war French Caribbean

This article examines the ways in which metropolitan French officials attempted to deal with the “population problem” in Martinique and Guadeloupe after they became overseas departments (DOMs) of France in 1946. Warning of a demographic crisis in the Antilles, French administrators targeted what they saw as a loose family structure and promoted European family values of Christian marriage and a stable nuclear family. The government justified smaller social subsidies to citizens of the new DOMs by citing the supposedly problematic nature of the Caribbean family and its difference from the French norm. In 1963 the government initiated a wave of emigration to the metropole through an agency called BUMIDOM which was to decrease birth rates in the Antilles and provide much-needed unskilled labor in France itself. Although the impact of emigration on the birthrate is unclear, one lasting legacy of this period was the acute sense of injustice many Antilleans felt at being treated unequally by the state. While birth rates have gone down in the DOMs it had little to do with the acceptance of European family models.     

The Right to Buy,the Leaseholder,and the Impoverishment of Ownership

Right to Buy is one of the most successful schemes devised to extend home ownership to those otherwise excluded. Its introduction by Margaret Thatcher and endorsement by New Labour provide a critical indicator of those governments' neo‐liberal credentials. This article suggests that one of the key achievements of the Right to Buy was to obscure inequalities inherent in a project of democratization via property ownership. It examines New Labour's political reform of local authority landlordism and leaseholder rights and exposes the vulnerability of Right to Buy lessees and their successors in title. It argues that the promise of inclusion via home ownership is a more conditional promise than generally recognized, in some cases impoverishing rather than enriching. It concludes by reflecting on the importance of scrutinizing schemes which purport to democratize ownership, observing that the position of Right to Buy leaseholders is unlikely to improve following the abandonment of social reform projects by the coalition government.     

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.     

Interpretation,Argumentation, and the Determinacy of Law

This article models legal interpretation through argumentation and provides a logical analysis of interpretive arguments, their conflicts, and the resulting indeterminacies. Interpretive arguments are modelled as defeasible inferences, which can be challenged and defeated by counterarguments and be reinstated through further arguments. It is shown what claims are possibly (defensibly) or necessarily (justifiably) supported by the arguments constructible from a given interpretive basis, i.e., a set of interpretive canons coupled with reasons for their application. It is finally established under what conditions such arguments provide single outcomes or rather support alternative interpretive conclusions, thus leading to propositions of law whose truth-value is undetermined.     

Immigration,Association, and the Family

In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why it ought to have a privileged place in our discussion of the topic. I further show why this style of argument neither allows states to limit nearly all immigration nor requires them to have almost no limits on immigration. I conclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to ‘outsiders’ seeking to enter, but rather to current citizens.