The Rise of Spanish and Latin American Criminal Theory

As the contributions to this two-part special issue demonstrate, Spanish and Latin American criminal theory has attained a remarkable degree of sophistication. Regrettably, Anglo-American scholars have had limited access to this rich body of literature. With this volume, the New Criminal Law Review has taken a very important first step toward rectifying this situation. Although the articles written for this special issue cover a vast range of subjects, they can be divided into four main categories: (i) the legitimacy of the criminal sanction, (2) the punishability of omissions, (3) the challenges that international criminal law and the fight against terrorism pose to criminal theory, and (4) the theory of justification and excuse. The articles pertaining to the first two categories will appear in the first half of this special issue (Volume ii, Number 3) and the pieces belonging to the third and fourth categories will be published in the upcoming second half (Volume 11, Number 4). In accordance with this general structure, in the pages that follow I will provide a brief summary and critique of the pieces contained in both parts

Beyond Torture: The Nemo Tenetur Principle in Borderline Cases

The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against self incrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the Nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the identification of improper methods of interrogation. Finally, it concludes by applying this framework to three hypothetical cases and arguing that only confessions obtained through unacceptable force should be barred

Duress, Demanding Heroism and Proportionality: The Erdemovic Case and Beyond

This Article discusses the Erdemovic case in order toexamine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion. After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a defense to the killing of dozens of civilians. Because the civilians would have died anyway at the hands of other soldiers, resisting the threats would have been useless. Even though this fact does not negate the wrongfulness of the defendant\u27s act (i.e., justify his conduct), it should exempt him from responsibility (i.e., excuse his liability)

Beyond Torture: The \u3cem\u3eNemo Tenetur\u3c/em\u3e Principle in Borderline Cases

The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against selfincrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the Nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the identification of improper methods of interrogation. Finally, it concludes by applying this framework to three hypothetical cases and arguing that only confessions obtained through unacceptable force should be barred

Animal Rights Unraveled: Why Abolitionism Collapses into Welfarism and What it Means for Animal Ethics

Most people support laws that seek to reduce the suffering of animals. Yet animal cruelty statutes and other kinds of animal welfare laws are under sustained attack by the so-called abolitionists. Animal rights abolitionists claim that it is categorically wrong to treat animals as commodities, and animal welfare laws should be opposed because they do not alter the property status of animals. Abolitionists also claim that animal welfare regulations do not meaningfully reduce animal suffering. In fact, abolitionists argue that such statutes likely increase future animal suffering, either by delaying the advent of abolition or by soothing the conscience of those who want to continue consumption of animal products. This Article contends that this claim is false and in tension with the core philosophical commitments of abolitionism. There is simply no empirical evidence that supports the counterintuitive claim that animal welfare laws do not meaningfully reduce animal suffering. In fact, both intuition and the few empirical studies that exist suggest that animal welfare statutes do reduce animal suffering. If animal welfare regulations succeed in meaningfully reducing animal suffering, then abolitionists must confront what this Article calls the “abolitionist’s dilemma.” On the one hand, abolitionists could embrace animal welfare regulations, in which case their core opposition to laws that presuppose the property status of animals would be compromised. On the other hand, they could oppose animal welfare regulations that reduce animal suffering solely because they continue to commoditize animals. This would reveal that abolitionists are willing to sacrifice animal welfare in the present with the hopes of achieving an uncertain and unlikely abolition in the future. Not caring about present animal suffering would make the abolitionist position not only politically unpalatable, but also ethically unattractive in a most profound kind of way. As a result, abolitionists should embrace animal welfare statutes that meaningfully reduce suffering, even if doing so means that the abolitionist program as we know it would cease to exist