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.     

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.     

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.     

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。     

客观归责理论研究的中国进路

我国学者大多数都将客观归责理论纳入因果关系的范畴进行研究.这一研究进路的选择事实上是混淆了德国刑法理论不同发展阶段因果关系和归责的概念并且忽略了中国刑法理论通说与德国刑法理论中因果关系概念的差异所致,因而客观归责理论难以移植和生存,并进一步导致理论上的混乱.我国对客观归责理论的借鉴应在犯罪论体系下进行研究,运用该理论改造现有的构成要件理论或予以重构.     

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.     

Crime Prototypes,Objective Versus Subjective Culpability,and a Commonsense Balance

Crime prototypes, which have been linked to jurors' story constructions and verdicts, were elaborated through narratives, yielding 600 detailed stories, across seven different cases, in two experiments. These stories were manipulated under conditions that explored the prototypicality of the case, she verdict outcome, and whether it was a rightful or wrongful decision; the latter two manipulations, when combined, allowed for a comparison of actual outcomes versus true outcomes, and a measure of true culpability. Three or four prototypes, rather than one, emerged for all crimes, and though extraordinary rather than typical, they were far from simplistic. While the subjective element of motive dominated the culpability determination in Experiment I, objectivity prevailed in most cases in Experiment II. A commonsense and complex balancing of objective and subjective factors is the rule, while simplism was the rare exception.     

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。     

论金融诈骗罪的罪过形式——以目的犯基本理论为思考路径

非法占有目的是金融诈骗罪的必备构成要件要素,金融诈骗罪属于断绝的结果犯.目的犯可以存在于间接故意犯罪之中,因此间接故意可以成立金融诈骗罪.     

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.