Puzzling About State Excuses as an Instance of Group Excuses

Can the state, as opposed to its individual human members in their personal capacity, intelligibly seek to avoid blame for unjustified wrongdoing by invoking excuses (as opposed to justifications)? Insofar as it can, should such claims ever be given moral and legal recognition? While a number of theorists have denied it in passing, the question remains radically under-explored. In this article (in its penultimate draft version), I seek to identify the main metaphysical and moral objections to state excuses, and begin to investigate their strength. I work from the ecumenical assumption that general understandings of modern states as group moral agents proper or as mere fictional points of imputation for individual behavior are both plausible, and that the question of state excuses should be asked in terms of both paradigms. Issues addressed include: the lack of state consciousness/affect, the nature and relevance of developmental and executive defects in group agents, the value of state interests and how interests relate to plausible claims of excuses, the shortfall of responsibility argument for group responsibility and its interface with state excuses, the symbolic and consequential (dis)value that state excuses may have, as well as concerns that states are entities that should live up to outstandingly high virtuous standards of impartiality and equanimity. I conclude that even if the range of excuses available to states does not overlap neatly with excuses available to ordinary individuals, some excuses may still be morally available to states. More generally, I emphasize the need for a systematic discussion of group excuses writ large, and of their relationship with the wider question of when group entities may legitimately be singled out to bear adverse normative consequences for wrongdoing

Individual Emergencies and the Rule of Criminal Law

This is the draft of a paper initially presented in the Oxford Jurisprudence Discussion Group. The paper assesses the relationship between individual emergencies and criminal law in light of the ideal of the rule of law and Joseph Raz\u27s thesis about the normal justification of authority. After sketching out the main theoretical positions on how criminal law ought to provide for its own potential failure in the face of private emergencies, I argue that it is only in the most extreme and generalized cases that its sole legitimate response is to disclaim all competence in favour of its subjects. Whereas, in other cases (the focus of the paper), the criminal law may not be able to provide legitimate ex ante guidance, it may still be able to preserve the legitimacy of its authority. It may do so by granting some practical latitude to its subjects confronted with individual emergencies to act in accordance with morality, and by vindicating their correct responses ex post facto. The argument rests on the premise, which I defend, that morality never lapses even in the face of emergencies and that, therefore, the criminal law can always expect its subjects to abide by it. I then go on to contrast justification and excusatory defences as means of providing moral latitude to individuals facing emergencies, and conclude by refuting the assumption that people typically act irrationally when confronted with emergencies

Individual Emergencies and the Rule of Criminal Law

This is the draft of a paper initially presented in the Oxford Jurisprudence Discussion Group. The paper assesses the relationship between individual emergencies and criminal law in light of the ideal of the rule of law and Joseph Raz\u27s thesis about the normal justification of authority. After sketching out the main theoretical positions on how criminal law ought to provide for its own potential failure in the face of private emergencies, I argue that it is only in the most extreme and generalized cases that its sole legitimate response is to disclaim all competence in favour of its subjects. Whereas, in other cases (the focus of the paper), the criminal law may not be able to provide legitimate ex ante guidance, it may still be able to preserve the legitimacy of its authority. It may do so by granting some practical latitude to its subjects confronted with individual emergencies to act in accordance with morality, and by vindicating their correct responses ex post facto. The argument rests on the premise, which I defend, that morality never lapses even in the face of emergencies and that, therefore, the criminal law can always expect its subjects to abide by it. I then go on to contrast justification and excusatory defences as means of providing moral latitude to individuals facing emergencies, and conclude by refuting the assumption that people typically act irrationally when confronted with emergencies

Victor\u27s Justice: The Next Best Moral Theory of Criminal Punishment?

In this essay, I address one methodological aspect of Victor Tadros\u27s The Ends of Harm - namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment

Understanding Criminal Law Through the Lens of Reason

This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp

Desert and Avoidability in Self-Defence

Jeff McMahan rejects the relevance of desert to the morality of self-defense. In Killing in War he restates his rejection and adds to his reasons. We argue that the reasons are not decisive and that the rejection calls for further attention, which we provide. Although we end up agreeing with McMahan that the limits of morally acceptable self-defense are not determined by anyone’s deserts, we try to show that deserts may have some subsidiary roles in the morality of self-defense. We suggest that recognizing this might help McMahan to answer some unanswered questions to which his own position gives rise

Section 9 of the Canadian Charter & Arbitrary Laws: a Taxonomy, an Organizational Ideal, and a Path Forward

One of the conditions for a detention not to be arbitrary under s. 9 of the Canadian Charter of Rights and Freedom is that it must be authorized by a law that is itself not arbitrary. The Supreme Court’s pronouncements about what makes a law arbitrary have been brief, question begging and, at times, conflicting. This article takes stock and proposes a path forward. First, it reviews the Supreme Court’s case law with the goal of developing a taxonomy of its various accounts of arbitrary laws. It identifies three: a formal account (with a procedural check), a purpose-sensitive account, and a discrimination/improper considerations account. It then evaluates these accounts in light of the purpose of s. 9, which is to ensure that detentions are adequately justified from the perspective of the ideal of the rule of law. It argues that, when properly interpreted, the Court’s three accounts correspond to different aspects of this ideal. As such, they should be applied cumulatively, and continue to be developed along that purposive axis. Finally, the article considers the Supreme Court’s use of the ancillary powers doctrine to create new powers of detention at common law. It argues that this doctrine, which currently evades direct section 9 scrutiny, should also incorporate a distinct assessment of arbitrariness along the lines identified—especially since, properly understood, it is itself a doctrine aimed at advancing the rule of law. Overall, the article suggests that the key parameters for a consistent and principled approach to what makes laws arbitrary are already present in the Supreme Court’s s. 9 case law (and related aspects of its ss. 7 and 15 case law). What is needed is for the Court to organize them systematically based on the purpose of s. 9, and to commit to advancing them, whenever applicable, through its evolving interpretation this section

Victor\u27s Justice: The Next Best Moral Theory of Criminal Punishment?

In this essay, I address one methodological aspect of Victor Tadros\u27s The Ends of Harm - namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment