Criminal Responsibility and Its Histories: New Perspectives for Comparative Legal History (original) (raw)
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The Monist, 2021
Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority.
TRACING THE CRIMINAL JUSTICE: AN INQUIRY INTO THE ROOTS OF THE MODERN PENAL PRINCIPLES
Curentul juridic, 2014
The question of understanding who we are finds its reply on the path of history, on the cultural and legal principles on which we rely. To understand the present we must begin from the past. The principles of criminal laws are different because every state has its own legislations: every topos has one nomos, although the western law category belongs to the entire world. The reason is not that they are simply the best, but because there have been an exchange of principles and concepts developed from the colonial times. Law was developed in three main historic societies: Israel, Greece and Rome. By analyzing their legislations, we can easily conceive some base principles of the modern criminal law. If we refer to Israel-the criminal law has its roots on the Bible (God gave Moses the ten tables on the Sinai Mountain). Even if is based on the principle that God's law cannot be changed, it is based in the idea that law must be interpreted in order to be properly applied. Based on this principle, Moses judges the people first and then appoints the judges. In the 12 century B.C. the concept of the interpretation of law was accepted and so was the administration of justice. The "Deuteronomy"the book of Bible written after Mosesenvisaged different punishments for those who commit murder willingly or not. In the 6 century B.C., the punishment is based on the psychological element of the offence. In Greece, in his book "Seven against Thebes" Sophocles writes the history of Troy, where the protagonist, Antigone, will be buried alive according to the written law, which prevails over the custom. In this time, the supremacy of the written law over customary law is known. After the revenge of his father, Orestes will be considered not guilty by criminal judgment because the votes of the judges are equal and if there is any doubt, the person in charge is considered free. Hence the Latin principle "in dubio pro reo". We encounter in ancient Rome a high level of legislation. If we refer to Orazi as described from Livio in the 2 nd century A.C., he will not be punished for murdering his sister, according to lex sacrata, without a preliminary judgment, in this case by people. This is an affirmation of the principle of the rule of law and of separate powers.
Criminal Law: Before a State Monopoly, in The Oxford Handbook of European Legal History Edited by Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey, Oxford University Press, 2018
This article aims to study features and development of criminal law in the medieval and modern ages. The emergence, at the end of the eighteenth century, of the state monopoly on punishment, connected with the establishment of the statutory law as an ordering factor, represents a historical turn. Before, criminal law—much more than to the exercise of a right to punish—is related to the problem of determining justice in order to produce a public space substitute for revenge. The chapter, considering this different foundation, analyses the ordering factors structuring the criminal law system. It then focuses on peculiar features of the criminal trial and on key aspects such as the role of the judge, the sanctions regimes, the taxonomy of the crimes, and the regimes of proof. Some cursory remarks, as to how the criminal legal order turns into a system under a state monopoly, serve as a conclusion.
Responsibility Beyond Blame: Unfree Agency and the Moral Psychology of Criminal Law's Persons
Criminal Law's Person (Lernestedt and Matravers (eds.)), (Oxford: Hart) , 2022
In this chapter I examine Lacey and Pickard's recent 'responsibility without blame' model of criminal law and punishment, and argue that it is, though suggestive, unconvincing. They challenge the orthodox assumption of contemporary penal theory that only the retributive 'justice model', and not therapy, can institute respect for offenders as persons, arguing that therapy can be reconciled with respect because we can reconcile therapy with the justice model. Pickard's 'clinical model' based on reflection on therapeutic work with psychopathology shows us, they claim, how to reconcile the justice model of criminal responsibility and punishment with the reparative and reconciliatory ideal of a therapeutic dialogue animated by a spirit not of blame but of forgiveness. I claim that certain of Lacey and Pickard's intuitions and insights in fact lead to a different conclusion: that the whole conceptual landscape of our criminal responsibility practices is inadequate. Far from uniquely instituting respect for persons, it is incapable of doing so. Therapy can be reconciled with respect because respect doesn't depend on the justice model at all. The latter's austere conception of respect ignores the psychology of real persons and fictionalises them as autonomous beings abstracted from the constraints, limitations and privations of psychological reality. Lacey and Pickard's account is unable to follow through on its important insights into the normative significance of the real psychology of persons for the critical appraisal of our criminal legal practices.To institute psychologically realistic respect for persons, we'd require a different kind of responsibility practice altogether.
Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak
In Ignorance of Law, Doug Husak defends a version of legal moralism on which “we should recognize a presumption that the criminal law should derive from, be based on, conform to, or mirror critical morality.” He thinks “we should regret…retreats from our ideal and do our best to find ways to avoid them,” even while agreeing “retreat is almost certainly needed.” In this paper, however, I ask whether this claim about regret true across the board. I argue that criminal law departures from the moral ideal need not always be regretted. Instead, I explore whether the substantive rules of the criminal law should mirror not moral blameworthiness, but a distinct legal notion of criminal culpability—akin to moral blameworthiness, but which is cleaned up to be deployed in legal systems. Rather than relegating institutional design considerations to a secondary position reached only after the moral ideal has been mapped, I suggest that they should be built into the criminal law theorist’s inquir...