What is the Harm Principle For?

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other influential accounts. After examining the (considerable) role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence.     

What is the Theory Legal Argumentation For?

The paper aims to present the legal theories of legal argumentation constructed in the last century, organised into two groups: the precursors (Viehweg, Perelman and Toulmin) and the authors of the standard theory (MacCormick and Alexy). Then, some criticisms about all these conceptions are presented. And finally, an outline of a theory of legal argumentation is made, capable of overcoming some of the previous criticisms. The fundamental idea for this is to build a very abstract concept of argumentation that could then allow various interpretations or conceptions of legal argumentation. From here, one would be in a position to find an answer to the three main argumentative questions raised by legal practice: how to analyse an argument, how to evaluate it, how to argue.

     

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

The nature of command responsibility is still open to debatein international criminal law: is a superior to be held criminallyresponsible for the crimes committed by his subordinates ‘asan accomplice’, for having participated in the commissionof the crime by omission, or as a perpetrator of a separateoffence of dereliction of duty? This article surveys the post-WW2case law and the first international instruments on this point,and then analyses the jurisprudence of the International CriminalTribunal for the former Yugoslavia (ICTY). The judges appearto have recently adopted a new approach to Article 7(3) ICTYSt.in that the superior is held responsible ‘for failureto prevent or punish with regard to the crimes of the subordinate’and no longer ‘for the crimes of his subordinates’.It is a responsibility ‘sui generis’ indeed, wherethe crime of the subordinate plays a central role in the attributionof responsibility to the superior. It is, therefore, necessaryto carefully consider the relationship between the superior'sfailure to act and the subordinate's crime, both with regardto objective and subjective elements. The same question finallyarises in relation to Article 28 of the Rome Statute, the literalinterpretation of which implies that a superior shall be punishedfor the same crime committed by his subordinates. In order toavoid the risk of holding a person guilty of an offence committedby others in violation of the principle of personal and culpablecriminal responsibility, it is crucial to consider separatelythe different cases of command responsibility, which are basedon distinct objective and subjective requirements.     

What is the Criminal Law for?

The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states. In the context of the regulatory state, the criminal law is a coercive rule-enforcing institution – regardless of whether it also serves the ends of retributive justice. As a rule-enforcing institution, the criminal law is deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage. As a coercive institution, the criminal law requires justification as an instance of legitimate state authority. The operation of criminal justice institutions should therefore not be evaluated by reference to a distinct set of criteria, but should be evaluated by the same criteria that apply to coercive public institutions generally.     

What is the magnitude of the subpopulation effect?

The effect of population subdivision on estimated match probabilities has been raised [Nature 339 (1989) 501; Am. J. Hum. Genet. 48 (1991) 819; Science 254 (1991) 1921]. Previous work [J. Forensic Sci. 39 (1994) 319; J. Forensic Sci. 39 (1994) 988; Am. J. Hum. Genet. 55 (1994) 533] has compared product rule estimates from differing databases and found that the "subpopulation" error may be of the order of a factor of 10. This approach compares an estimate with an estimate. This paper uses simulation to extend these studies by allowing a comparison to a 'true match probability' and supports the conclusion that subpopulation effects are mild. In addition the performance of recommendations 4.1 and 4.2 of NRC II [National Research Council and C.O.D.F. Science, The Evaluation of Forensic DNA Evidence, National Academy Press, Washington, DC, 1996].     

Off-Label Prescribing by Psychiatrists: What is the Practitioner's Liability?

In psychiatry, the molecules available and the dosages recommended when a drug receives marketing authorization are not always adequate to treat patients with major behavioral disturbances. Off-label prescribing is frequent in this context, with regard to the indications and the dosages given as well as to the drug combinations used. However, if complications or death occur, the practitioner's liability may be engaged. The authors report three deaths attributed to off-label prescribing in psychiatry and which led to charges against the physicians. They review the precautions to be taken when prescribing in such conditions (no other possible treatment, existence of sound scientific evidence, consent obtained from the patient, or their legal representatives except in cases of force majeure) and the physician's liability if adverse events occur that could be attributed to off-label prescribing.     

What is Tort Law For? Part 1. The Place of Corrective Justice

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for.     

What is the goal of access to health care?

This article first examines the justifications for the goal of access to health care and the variations between health systems in their endorsement of individuals' rights to health care irrespective of income, ethnicity, age and other characteristics. It then examines the meanings of the goal of "access" to health care and considers four key dimensions--service availability ("having" access), service utilisation ("gaining" access), the relevance and effectiveness of services and equity of access. These dimensions provide a common framework that can be applied across countries and health systems and employed to assess the extent to which access to health care is actually achieved.     

The Relationship Between Traumatization and Pain: What is the Role of Emotion?

The role of emotion in the relationship between traumatic experiences and physical pain was examined via path modeling by using a sample of hospital outpatients (N = 138). Most of the participants reported being traumatized (77%) and experiencing chronic pain (69%). Trauma survivors and nontraumatized individuals did not differ significantly on mean symptom scale scores (i.e., depression, anxiety, anger, dissociation, somatization and pain). However, a moderate effect size was found for dissociation. There were also significant associations found between trauma levels and levels of adult symptomatology. Interestingly, sexual abuse was less highly correlated with symptomatology than other types of traumatization, such as neglect. None of the three proposed path models describing the relationship between trauma, pain, and emotion fit the data successfully. Implications are discussed.     

Economic freedom and economic growth in India: What is the empirical relationship?

The recent moves of the Indian economy towards further opening up of the economy with less government control has brought about changes in its policy structure. The objective of this study is to test the hypothesis that greater economic freedom leads to higher levels of economic growth in a federal system like India where business regulations, taxation, and government spending differ widely across states. Pooled linear regression model is applied to categorical data containing economic freedom and its three components as independent variables, and growth rates of income per capita and gross state domestic product as dependent variable, for a panel of twenty states for three time periods, 2004/2005, 2006/2007 and 2009/2010. While examining this relationship, the variables like initial income per capita, initial literacy rate, sectoral composition, and inflation rate are taken as control. The results tend to establish the fundamental effects of economic freedom in fostering economic growth. Three individual dimensions of economic freedom namely size of government, strong rule of law, and flexible regulations governing credit, labour, and product markets are likely to exert beneficial impacts on income growth. Initial income per capita exerts a positive impact, thus proving the prevalence of regional divergence on this front. High human capital, greater share of the services and inflation exert direct impact on growth.     

What is Hate Speech? Part 2: Family Resemblances

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred.