Review of H.L.A. Hart, The Morality of the Criminal Law, Oxford University Press (1965)

This slim volume contains the text of two lectures given by Professor Hart at the Hebrew University of Jerusalem in 1964. The first lecture, Changing Conceptions of Responsibility, expresses concern at the turn in which the liberal criminal law reform movement in England has taken in connection with the law of criminal responsibility. Professor Hart takes issue with the stand of a leading reformer, Lady Wootton, who advocates abolition of the mens rea prerequisite to penal liability. In her view, the mental state of a harm-doer is relevant not to determining his penal liability (conviction), but only to the decision of how to treat him. She would, accordingly, abolish the defences of insanity and diminished responsibility. Partially agreeing, Professor Hart, too, would consider questions of mental irresponsibility only at the treatment stage, and would therefore also abolish these preconviction pleas in defence and mititgation. But he is unwilling to sacrifice the mens rea requirement as an element which must be proved would a harm-doer be held liable to compulsory treatment, whether punitive or medical. Professor Hart feels that his moderate reform would preserve the mens rea principle from destruction at the hands of strict liability reformers

Forms and Limits of Utilitarianism

One can contrast the analogous general utilitarian principle in order to see whether it can be subjected to the criticisms offered against Act-Utilitarianism. From the notion of generalization one can begin to build up to the notion of a rule grounded in utility, thus incorporating into the analysis rule-utilitarianism. This book is the outcome of the analysis. The discussion examines several types of moral theory and preserves contact with the relevant literature, with theories that have been offered and discussed by philosophers. It deals with paradigms of various forms of utilitarianism and finds that little is gained by choosing one form rather than another. The book also holds that no pure utilitarian theory can account for some of one\u27s strongest moral convictions.https://scholarship.law.bu.edu/books/1101/thumbnail.jp

Baier\u27s Test for Practical Rules Re-Examined

In his recent book, Kurt Baier proposed two methods for the testing of moral rules. One method consists in applying the fundamental criteria for such rules: those criteria determined by the formal condition of “universal teachability,” and those criteria (“reversibility” and “universalizability”) which are determined by the material condition that moral rules be “for the good of everyone alike.” But Baier’s analysis of practical reasoning allows for many sorts of rules, not all of which are “moral.” The second method of testing is most generally applicable, and is intended to be sufficient for the validation of every sort of practical, action-guiding rule. In view of the increased attention given to the role of rules in practical deliberation, it would seem that any proposal of a universally sufficient test for practical rules would enjoy serious and sympathetic consideration. Unfortunately, however, most of the written commentary on Baier’s test methods seems to have been preoccupied with a shocking – and I think misleading – statement of Baier’s regarding his second, the more general test. I should like to suggest a new interpretation of this test in order, first, to rebut the presumption that it rests essentially on a logical blunder, and second, to point out where criticism of the test should properly be directed

International Chamber of Commerce Arbitration, 4th ed.

https://scholarship.law.bu.edu/books/1247/thumbnail.jp

Chapter 11: Beyond Digital Pessimism: How a Focus on Trust Can Enhance EU Digital Law

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means. In this essay, we argue that while laudable, these efforts fall short of reaching their goal. For instance, the express consent framework does not offer real choice to consumers, and the EU’s approach to preventing manipulation has a counterproductive focus on consumers as rational agents. More broadly, we contend that avoiding negative outcomes is not enough to build trust with consumers. Building trust requires creating shared positive experiences between digital companies and product users. To promote trust in digital products, we propose the EU should adopt a principle-based approach. More specifically, we suggest four principles should be incorporated into EU digital law. The principle of confidentiality should be operationalized as discretion, or the quality of behaving or speaking in such a way as to avoid causing offense or revealing private information. Transparency should be replaced with honesty, which would empower consumers to make real choices instead of consenting to hundreds of pages of user agreement without being truly informed. Security should become protection, incorporating a broader duty to safeguard the interests of those who share their data or use AI systems. Finally, there should be a duty of loyalty, which would require that companies prioritize consumers’ interests over their own