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Abstract:
This article looks to the Supreme Court's proportionality jurisprudence under the Eighth Amendment to substantiate four claims. The first claim is that the Lawrence Court was correct to hold that the enforcement of popular morality as such does not constitute a legitimate state interest in the context of criminal punishment. The second claim is that even if Lawrence is read to apply only rational basis scrutiny to laws regulating sexual intimacy, the Court has provided techniques by which to dismiss minimal and speculative harms as rationalizations for criminalization and punishment. The third claim of the article is that the Eighth Amendment provides an independent source of substantive limitations on the scope of the criminal law, alongside and in support of liberty and privacy concerns. The fourth claim is that important constitutional values, including the viability of proportionality review itself, would be compromised by endorsement of the enforcement of popular morality as an acceptable goal of punishment independent of retributive and consequentialist principles. To support these claims the article offers an original interpretation and application of the Court's Eighth Amendment cases, engages with objections to that line of cases by Justice Antonin Scalia, and refutes new and seemingly compelling arguments in favor of legal moralism emerging from the expressive theory of criminal law.

Constitutional Law, Criminal Law, Eighth Amendment, legal moralism, harm principle, Lawrence v. Texas, criminalization, punishment, gay rights, privacy, expressive, retributivism, retributive

Abstract:
The philosophy of international law embraces a variety of conceptual and normative tasks. Few of these tasks are as theoretically interesting or as morally important as the analysis and justification of principles of distributive justice extending between nations, either directly or by way of international institutions. This Essay approaches the question of global justice through a discussion of a recent article by Thomas Nagel, who takes the radical position that duties of distributive justice extend only within and not between rich and poor countries, and that shared membership in international institutions does not give rise to any additional obligations to eliminate arbitrary inequalities across borders. Nagel's philosophical argument turns repeatedly on legal concepts - such as responsibility and standing - and legal contexts - such as the creation and replacement of sovereign states - whose philosophical import remains obscured for want of legal analysis. Engagement with Nagel's views provides a window onto a new approach that avoids the excesses of the radical position while acknowledging the concerns that provide its motivation. The new approach fuses elements of liberal egalitarianism and republicanism, responding to conflicting impulses toward equality and partiality and to the relevance of international institutions in mediating duties of global justice.

Global, distributive, justice, moral, political, philosophy, cosmopolitanism, equality, international, Nagel

Abstract:
Noah Feldman's engaging and surprisingly personal second book disappoints in at least three respects. Feldman, a law professor at New York University and former constitutional adviser to the Coalition Provisional Authority in Baghdad, declines to evaluate the legality and morality of the titular war. He similarly neglects to discuss the titular project of nation-building - the formation of an autonomous collective moral agent - writing instead only of state-building - the formation of stable political institutions. Finally, although Feldman makes a great number of ethical claims, they do not amount to a complete or convincing theory of what we owe Iraq, of the affirmative obligations of the United States to aid in reconstruction. When pressed to defend his strongest ethical claims Feldman makes no reference to his theory, drawing instead on more familiar and compelling moral grounds.

Noah Feldman, Iraq, war, ethics, reconstruction, nation building, state building, occupation, repair

Abstract:
International criminal law is frequently portrayed as the strong arm of the international human rights regime, an instrument designed to safeguard the dignity of each human person. There is an important truth to this characterization: international crimes involve many of the most grotesque violations of individual rights human beings inflict and endure. Yet the areas of international criminal law that are the subject of this Article apply to the doings and sufferings of individuals only indirectly. The law governing crimes against humanity and genocide frames the acts and fates of individuals against broader and darker patterns of group perpetration and group victimization. It is only within the context of group violence that international law attributes individual responsibility for wrongdoing and vindicates the rights of the individuals wronged.

The conceptual mismatch between the moral individualism of human rights discourse and the collectivist structure of international criminal law requires theoretical resolution. The theory developed in Part II locates the legitimacy of institutional coercion within a structure of rights and duties linking authors of wrongs, victims of crime, and agents of punishment. As Part III explains, the need for international criminal law arises from the defective embodiment of this relational structure in social groups and failing states, defects which devolve retributive justice into cycles of escalating violence. The displacement of group vengeance by legal process is not the (broadly consequentialist) ground of the relational structure, but rather a reason for one set of social institutions rather than others to occupy a position of authority within that (broadly deontological) structure.

Although the relational theory is intended as an independent contribution to the philosophy of criminal law, its cash value lies in its power to illuminate the role of group perpetration and group victimization in justifying the displacement of domestic law by international law and the intervention of international tribunals into internal armed conflict (Part IV); the relative gravity of genocide and crimes against humanity as well as the grouping of persecution and apartheid with crimes whose constituent acts cause greater physical destruction (Part V); and the roots of state resistance to international tribunals and the role of complementary jurisdiction in rationing the latter’s political capital (Part VI).

The Article concludes by revisiting the grounds of the duties asserted, arguing that the duty to punish rests ultimately on the duty to protect, that invocation of the former implicitly admits failure to discharge the latter. The Article is intended as a contribution both to the growing literature surrounding the philosophical foundations of international criminal law and to traditional criminal law theory.

International criminal law, crimes against humanity, genocide, international criminal court, ICC, criminal law theory, philosophy of criminal law, retributivism, retributivist, punishment

Abstract:
The publication of Meir Dan-Cohen's collected essays provides a welcome opportunity to reflect on a career of innovative and influential scholarship in criminal law and legal philosophy. By addressing his works collectively I hope to unearth creative tensions between arguments framed at different times and in response to different concerns, tensions not visible when the arguments are taken one at a time. Part I of this Review discusses the essays Harmful Thoughts and Defending Dignity; Part II centers on Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law and Responsibility and the Boundaries of the Self; Part III turns to In Defense of Defiance and Conceptions of Choice and Conceptions of Autonomy. Each pair of essays reveals a tension within Dan-Cohen's ideas surrounding the purposes and limits of the criminal law and the meaning and value of human autonomy. I will attempt through an exploration of his ideas to sketch some of my own, ideas which preserve and synthesize his many insights while avoiding many of their conflicting implications. I only hope my discussion will be helpful and not merely harmless.

Criminal law, legal theory, philosophy, liberal, harm, harm principle, dignity, welfare, expressive, reasons, internalism, externalism, authority

Abstract:
Extremists on both sides of the War on Terror increasingly argue that torture and the deliberate killing of noncombatants are not merely morally permitted but frequently morally required. Both factions have found unlikely allies in leading scholars whose recent work provides intellectual support for the proposed upheaval of moral thought. This article provides new interpretations of the doctrines of noncombatant immunity and double effect which escape traditional criticisms, withstand contemporary challenges, and provide moral bases for rejecting torture and terrorism with equal force. The article also shows that refusal to torture does not make one complicit in the acts one could have thereby prevented, that deontological constraints retain their conceptual coherence and moral relevance when applied to states, and that threshold deontology does not support institutionalized torture.

war, terrorism, torture, complicity, necessity, justification, responsibility, constraints, prerogatives, consequentialism, noncombatant immunity, discrimination, distinction, double effect, intention, foresight, act, omission, Gardner, Sunstein, Vermeule, Kamm, McMahan

Abstract:
In ABOUT GUILT AND INNOCENCE, Donald Dripps rejects selective incorporation of the procedural protections of the Fourth, Fifth, and Sixth Amendments, and proposes an instrumental theory of due process according to which searches and seizures must reliably result in crime prevention or criminal prosecution, trial procedures must reliably result in accurate verdicts (with a preference for acquittal of the guilty over conviction of the innocent), and arrest and detention must be narrowly tailored to serve compelling state interests.

Dripps argues that the procedural provisions cannot be "fundamental," because the requirements of instrumental due process give the autonomy, privacy, and dignity of criminal defendants all the respect they deserve. The degree of suspicion adequate to justify a search may depend on the privacy and dignity interests implicated by the type of search, but not, according to Dripps, by the object of the search. Dripps' proposed cleavage of criminal procedure from substantive criminal law is surprising considering his earlier suggestion that the requirements of the former derive from the structure and function of the latter. Yet criminal procedure should not, on his view, respond to the substance of the law enforced.

This short Review suggests that at least two procedural provisions - relating to unreasonable searches and seizures as well as to compelled self-incrimination - provide independent constraints on the content as well as the enforcement of criminal prohibitions, reflecting values not adequately protected by the substantive provisions alone. Fourth Amendment reasonableness should be understood as a moral rather than an epistemic concept, one which invites balancing of liberty and security interests rather than inquiry into probable cause, an evidentiary standard Dripps borrows from the warrant requirement he goes on to reject. Fifth Amendment protections against self-incrimination favor the manifest over the subjective pattern of criminal legislation, indirectly encouraging the criminal law to regulate our motivations sparingly rather than as pervasively as morality.

Donald Dripps, criminal, constitutional, procedure, Miranda, reasonableness, search, seizure, exclusionary rule, incorporation, due process

Abstract:
Every account of the structure of criminal law involves an attempt to explain the content of and relationship between four basic concepts: wrongdoing, responsibility, fault, and punishment. The most ambitious accounts focus on a single concept in terms of which the others can be understood. ANSWERING FOR CRIME contains illuminating discussions of a variety of discrete issues, ranging from the relationship between attacks and endangerments to the difference between strict responsibility and strict liability, to the justification of mala prohibita crimes. But the greatest contribution of this marvelous book lies in Antony Duff's elegant and arresting vision of criminal law's conceptual foundation.

Criminal law, R.A. Duff, responsibility, justification, excuse

Abstract:
There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to "ensure respect for and protection of the civilian population" caught in the midst of armed conflict.

The Rome Statute of the International Criminal Court fails to fully enforce four core principles of humanitarian law designed to protect civilians: distinction, discrimination, necessity, and proportionality. As a result, it is possible for a combatant to kill civilians with a culpable mental state, without justification or excuse, and in violation of humanitarian law, yet escape criminal liability under the Rome Statute. The Rome Statute also adopts a theoretically flawed approach to crafting the legal definitions of the relevant war crimes, ignoring or misapplying fundamental criminal law categories - conduct offenses versus result offenses, material versus mental elements, offenses versus defenses - and inadvertently severs the relevant prohibitions from the humanitarian values that should provide their moral foundation.

The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians their full measure of legal protection and moral recognition. With the Rome Statute scheduled for review in May 2010 this project could not be more urgent.

Rome Statute, war crimes, International Criminal Law, International Humanitarian Law, Criminal Law Theory, justification, excuse, proportionality, necessity, distinction, discrimination, civilian

Abstract:
Under the Eighth Amendment, a form of punishment is invalid if it fails to measurably contribute to the acceptable goals of punishment. In the death penalty context, the relevant goals are retribution and deterrence. In this Article it is argued that capital punishment is not a valid form of retribution and, in part for that reason, is unconstitutional as well. Part I examines Ford v. Wainwright and Panetti v. Quarterman, in which the Supreme Court held that the state does not further its interest in retributive justice when it executes an offender who, due to mental illness, cannot understand the nature of the death penalty or the reasons for its imposition. These rulings reflect the view that retributive justice requires the possibility that an offender will recognize in the severity of punishment the gravity of the offense itself, and will in this way be reconnected to correct values, to victims, and to the moral community. Part II argues that such recognition is impossible in cases of capital punishment because the offender does not experience the evil of death, namely the deprivation of the goods that life makes possible. In particular, it is argued that it is not enough that an offender predicts and then undergoes a given penalty; the offender must experience the penalty and recognize in that experience the magnitude of the offense. Part III argues that capital punishment is therefore unconstitutional. As in Ford, the possibility that an offender will recognize in the experience of a penalty the magnitude of the offense is a side constraint on the pursuit of consequentialist goals. Moreover, in the death penalty context the Court has distanced itself from general deterrence and looked instead to the deterrability of specific classes of offenders. Capital punishment therefore fails to measurably contribute to the acceptable goals of punishment and is unconstitutional not merely as applied but also per se.

Eighth Amendment, retributive, retribution, capital punishment, death penalty, Ford, Wainwright, Panetti, Quarterman, Nozick