The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective

Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime.     

The Limits of the Harm Principle

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in (regardless of its harmful effects) and conduct that might well be criminalized (though it is not harmful). A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights.     

Civil and criminal sanctions against blackmail: an economic analysis

The rationale behind the legal prohibition of blackmail and its effects have worried lawyers, economists and philosophers. The paper tries to offer a new perspective on the issue by introducing a simple game-theoretic model of the blackmail interaction under three alternative legal regimes: blackmail as a legally enforceable contract, blackmail as a voidable contract, and criminal blackmail. We show that the first two are substantially equivalent, and are unable to prevent a successful blackmail equilibrium outcome. Making blackmail a crime can instead alter this result for some parameters of the model.We also explore the justification for criminalizing blackmail and find it, in line with previous Law and Economics literature on blackmail (Ginsburg and Shechtman (1993), Coase (1988)), in the correction (albeit incomplete) of misaligned incentives to acquire information and the revelation and no revelation outcomes involved in the blackmail transaction. This justification could be undermined by the advantages of what seems to be a superior legal regime in terms of efficiency: no legal regulation of blackmail. This hands-off system can also destabilize, in a one-shot interaction, the successful blackmail outcome. In plausible dynamic interactions, however, it fails to do so and, in fact, its effects actually resemble those of blackmail as an enforceable contract. This result might explain why most legal systems stick to the criminalization of blackmail.     

The Political Rights of Anti-Liberal-Democratic Groups

The purpose of this paper is to consider whether it is permissible for a liberal democratic state to deny anti-liberal-democratic citizens and groups the right to run for parliament. My answer to this question is twofold. On the one hand, I will argue that it is, in principle, permissible for liberal democratic states to deny anti-liberal-democratic citizens and groups the right to run for parliament. On the other hand, I will argue that it is rarely wise (or prudent) for ripe democracies to exclude anti-liberal-democrats from parliamentary elections. There are at least two reasons for this. The first is related to the inherent stability of just institutions. The second is that exclusion can lead to group polarization and enclave deliberation that can engender political extremism and impair processes of interpersonal and intrapersonal deliberation in liberal democracies.     

A Political Theory of Blackmail: A Reply to Professor Dripps

This essay was originally presented at the Rutgers Institute for Law and Philosophy as part of the Symposium on The Evolution of Criminal Law Theory. It is a Reply to Professor Donald Dripps’ politically-based justification for blackmail’s prohibition. Under Dripps’ account, by exacting payment from the victim blackmail is an impermissible form of private punishment that usurps the state’s public monopoly on law enforcement. This essay demonstrates that Dripps’ account is either under-inclusive or over-inclusive or both. Dripps’ account is applied to a number of the standard blackmail scenarios by which theories of blackmail are typically assessed. Dripps’ account is under-inclusive by failing to treat as blackmail Victim-Welcomed Blackmail, Non-Monetary Blackmail, Rebuffed Blackmail, and Non-Informational Blackmail which the law considers as blackmail. And it is over-inclusive by treating as blackmail Victim-Initiated Exchange and Unconditional Disclosure which the law does not recognize as blackmail.     

The Argument from Transnational Effects II: Establishing Transnational Democracy

This article continues with a discussion of what the author calls the argument from transnational effects. It says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for each other. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. This article examines the argument critically at a general level. The situation under consideration concerns all cases in which, regardless of whether there is movement or not, the acts of one democracy adversely impact on the interests of others. The article tries to identify instances where the harm is tied to a failure of representation in a transnational context and not caught by the harm principle, broadly understood. In order to calibrate the argument's scope the article resorts to the principle of universalisation. The guiding intuition is that so long as the act of one democracy is morally justified on the basis of this principle, the argument from transnational effects does not apply. Hence the argument is of no avail where the impact of one democracy on another is perfectly legitimate. This would be the case, for example, when the effects are too insignificant to require any debate. Determining the range of legitimate impact is a core question of transnational constitutional law. Any such determination presupposes mutually shared interest definitions. More often than not, however, the relevant interest definitions underlying universalisation are debatable. Therefore, it appears to be inevitable, at first glance, to have relations of transnational interdependency matched by transnational democratic processes. The article then goes on to identify three different types of universalitation with reference to what can be regarded as their respective anchor. Simple universalisation is based upon shared interest definitions. Reflexive universalisation involves common views of oneself (and others). Self‐transcending universalisation is grounded in the desire to live in a free society. Reflexive universalisation requires to extend mutual sympathy. From this perspective, transnational democratic processes are tantamount to nation‐building. However, one would commit a sentimentalist fallacy if one were to conclude that mutual sympathy in and of itself engenders an expansion of mutual responsibility. The article argues that with regard to the third type of universalisation the institutionalisation of transnational democratic procedures cannot be justified. It would threaten to undermine various conceptions of a free society. It is argued that for the sake of the realisation of equal citizenship the argument from transnational effects actually needs to endorse the existence of bounded democratic communities. Unbounded transnational democracy would exercise an adverse effect on citizenship. It also turns out that the argument from transnational effects, in its uncorrected form, remains haunted by the dilemma that the type of democracy that is envisaged by it becomes easily absorbed by administrative processes. The article concludes that the argument from transnational effects, correctly understood, has a more modest import than its proponents would have us believe. Rather than supporting the release of democracy from its national bounds, it helps to explain why the co‐existence of bounded democratic polities remains essential to equal citizenship. More forceful versions of transnational integration graft onto political societies elements that are not genuinely democratic and strangely reminiscent of different forms of rule. These are forms of rule that Aristotle would not have called ‘political’, for they do not involve the exercise of power by equals over equals.     

Moral Individualism and the Justification of Liberal Democracy

This article discusses the connection between individualism, pluralism and the moral foundation of liberal democracy. It analyses whether the requirement of value pluralism promoted by liberal democracies leads inevitably to communitarian ethics, or whether the liberal and democratic values of autonomy, tolerance and equality are actually based on an objectivistic and teleological account of justice. The author argues that value-neutral procedural and methodological individualism cannot support the liberal demands for pluralism and tolerance in a democratic regime. Instead, the justification of liberal democracy has to replace mechanical, methodological individualism with moral individualism. Moral individualism shows that in order to be legitimate and functioning liberal democracy has to be based on the form of individualism which contains objectivist moral aspects.     

单位实施自然人犯罪问题之探讨

单位如果实施了自然人犯罪,在司法实践中并不能以单位犯罪论处,是以个人犯罪论处还是司法机关不予处理而放纵犯罪?这一问题理论界存在有不同的看法,且在司法实践的处理过程中,也存在着争论,至今尚无定论。这样的现状,一方面难于体现我国的刑法保护功能,另一方面如予以处理,则可能冒违反罪刑法定原则的风险,的确是一个两难问题。单位实施自然人犯罪的刑事当罚性,罪刑法定原则下的犯罪的变异与司法实践,单位实施自然人犯罪的法律认识等问题的探讨,希望能为现实问题的解决开辟思路。     

The Function of the Proportionality Principle in EU Law

In this article the author assesses the proportionality principle in EU law from a legal theoretical and constitutional perspective with the aim of discovering the function of the principle. Having first discussed the implications of the proportionality principle being a general principle of law, and what function it has—namely to secure legitimacy for judicial decisions—the author suggests that there are several ways in which the principle can be interpreted. There is, nevertheless, a limit to this interpretation determined by the proposed function of the principle. In the third part of the article, the European Court of Justice's (ECJ's) interpretation of the principle is assessed. The assessment clearly shows that the ECJ is interpreting the principle in different distinguishable ways. The question could, however, be raised as to whether the ECJ in some areas is interpreting the principle in a way that undermines the very function of it.     

On Justifying Legal Paternalism

Abstract. Paternalism, understood as coercive intervention with the behavior of a person in order to prevent her from causing harm to herself, is a highly controversial issue, because it implies a departure from the widely recognized principle of harm to others. Some conceptual differences between legal paternalism and other forms of state coercion that also depart from the principle of harm to others will be indicated. This is followed by an analysis of the arguments that are usually brought forth against legal paternalism. And finally, the possibility of determining ethically justifiable types of legal paternalism is explored.     

敲诈勒索手段行为的教义学检讨

我国刑法典对敲诈勒索罪行为的罪名式表述未能为我们区分和认识该罪的行为手段提供明确的指引,学界和实务界采取的是相对比较随意和混同的表述,暴力、威胁、要挟、胁迫以及恐吓各种称谓兼而有之,且未详加区分。结合词源考察,对其行为方式进行区分和鉴别,以“暴力”与“威胁”指称其行为手段是比较恰当的,进而就敲诈勒索的手段行为的“暴力”与“威胁”的内容、程度、方式,包括不作为的威胁等进行教义视角的检讨,这将有助于我们对实务中各种不同敲诈勒索行为的识别和定性。     

Sub-Optimal Justification and Justificatory Defenses

Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are (exceptionally) justified—usually since they prevent (more serious) harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies (also) to actions that do not reflect all pertinent principles optimally due to (unjustified) mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal (particularly criminal) liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical (negative) reaction is in place only with regard to actions whose wrongness is above a minimal threshold.     

论收受财物后退还或者上交的认定

情节显著轻微危害不大是认定收受请托人财物后及时退还或者上交不构成受贿罪的根据。因此，收受请托人财物，是指被动收取财物而非主动索取财物；退还请托人财物必须是主动退还；上交请托人财物必须上交给纪检监察部门指定的账户；如果国家工作人员为请托人谋取不正当利益，即使及时退还或者上交，仍然应当构成受贿罪。同时，廉政账户制度必须纳入司法化的轨道才能获得新生。     

The concept of harm reconceived: A different look at wrongful life

In wrongful life litigation a congenitally impaired child brings suit against those, usually physicians, whose negligence caused him to be born into his suffering existence. A key conceptual question is whether we can predicate “harm” in such cases. While a few courts have permitted it, many courts deny that we can, and thus have refused these children standing to sue. In this article the author examines the wrongful life cases and literature enroute to a broader consideration of harm. This literature, and philosophical discussions of harm generally, rely on a definition which ascribes harm by comparing an individual's current condition with that in which he would otherwise have been, but for the allegedly harmful event. The author shows this definition to be conceptually and morally flawed. A superior general definition is offered which, when then applied to wrongful life cases, shows that we can easily ascribe harm in these cases and can find clear potential for tort liability.     

Moral Outrage and Opposition to Harm Reduction

Three public opinion studies examined public attitudes toward prevalence reduction (PR; reducing the number of people engaging in an activity) and harm reduction (HR; reducing the harm associated with an activity) across a wide variety of domains. Studies 1 and 2 were telephone surveys of California adults’ views on PR and HR strategies for a wide range of risk domains (heroin, alcoholism, tobacco, skateboarding, teen sex, illegal immigration, air pollution, and fast food). “Moral outrage” items (immoral, disgusting, irresponsible, dangerous) predicted preference for PR over HR, with disgust the most important predictor. In contrast, preferences were not predicted by whether the risk behavior was common, no one else’s business, or harmless. Study 3 explored whether there are domains where liberals might reject HR. A sample of liberal students preferred HR > PR for heroin, but PR > HR for ritual female circumcision; path analysis suggested that this reversal was explained by moral outrage rather than consequentialist judgments of harm to self and harm to others.     

Sex and the sacred: sterilization and bodily integrity in English and Canadian law

Through an examination of cases of non-consensual sterilization for learning disabled persons in Canada and England, this article considers the role that law plays in framing the thoughts, beliefs, and norms that fashion the ways we think about bodies, sex, gender, and sexuality. The author asks how it is that Canadian and English law, while both claiming to protect bodily integrity, have reached opposing conclusions about whether non-therapeutic sterilization can be in a person's best interests. She hypothesizes that the answer could lie in the manner in which courts have constructed the bodies of learning disabled men and women in the sphere of sexuality and reproduction. Where the overriding concern in the sterilization cases is the containment of the sexuality of a learning disabled person perceived as "out of control" or "vulnerable to seduction", sterilization is cast as a just and humane solution that will advance the welfare of the individual concerned. Conversely, where the overriding concern is the preservation of the integrity of a law committed to the principle of equality, sterilization is thought to be a violation of the bodily integrity of the person. The author shows that these two views engender very different legal and cultural discourses about best interests and bodily integrity. The debate highlighted by the sterilization cases and the commentary surrounding them reflect larger tension within legal discourse between the commitment to liberal values and the maintenance of a particular social order.     

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.     

Euthanasia and assisted suicide: a liberal approach versus the traditional moral view

Within the context of the debate over the recent suspended sentence given to John Stuart Godfrey by Underwood J in the Supreme Court of Tasmania for assisting his elderly mother with her suicide, this article examines some of the more popular arguments for and against the moral acceptability of euthanasia and assisted suicide. This article considers the arguments put forward on the "difference principle" by Rachels and Nesbitt before critically examining the liberal approach to the euthanasia issue as proposed by Kuhse. It is argued that whilst Kuhse is correct to reject the difference principle, she does so for the wrong reasons. The penultimate section of the article provides an overview of the traditional moral view against killing. The final part assesses whether the arguments put forward by proponents of the liberal approach are capable of overcoming this view.     

Retributivism and Legal Moralism

This article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all‐thing‐considered desirable. Though weak moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways.     

Human trafficking in the Netherlands: trends and recent developments

Notwithstanding the lift on the ban of brothels in the Netherlands during 2000, the introduction of the integral approach and other efforts to fight human trafficking; this trade still continues to exist within the licensed sector. Simultaneously, prostitution increasingly moved to Dutch cities with less strict regulations or control, and also to more invisible realms (escort services, internet). ICT facilitate this backstage informal sex work by offering a fluid, flexible, dynamic podium that is difficult to control. The internet is increasingly used by traffickers in order to recruit potential victims, to blackmail victims with images or by exploiting victims through webcam exposure. In 2005, human trafficking was extended in law towards exploitation in all labor sectors and, in 2011, illegal stay was criminalized in the Netherlands. This criminalization could hinder the fight against human traffickers.