Douglas Husak

Do non-persons have moral rights? I will suppose this question can best be answered by inquiring whether some animals and/or environmental objects have moral rights, for if any non-persons are possessors of rights, animals and/or environmental objects are the most plausible candidates. As so interpreted, this question has received an extraordinary amount of recent attention from philosophers. Arguments have been offered and defended; rebuttals have appeared in print. Yet, so far as I am aware, no one has presented a clear and accurate statement of what turns on the issue of whether non-persons have moral rights. In the absence of such a statement, philosophers are likely to be at sea in determining on which side of the controversy their initial sympathies lie. In this paper it is my central concern to help clarify what turns on the issue of whether non-persons are possessors of moral rights, rather than to argue decisively for one position or the other.

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the harm principle

I describe how our understanding of some of the central principles long held dear by most criminal theorists may have to be interpreted in light of the need to devise lenient responses for low-level offenders. Several of the most plausible suggestions for how to deal with minor infractions force us to take seriously some ideas that many legal philosophers have tended to resist elsewhere. I briefly touch upon four topics: whether informal can substitute for or count against the appropriate state sanction; the significance of repeat offending for sentencing; whether punishment for culpable public wrongdoing has intrinsic value; and the scope of police powers in a liberal democratic state. The context for this discussion is R. A. Duff’s insightful examination of whether and under what conditions we should criminalize a public wrong or respond to it in some other manner.

Reflections on Crime and Culpability seeks to elaborate, extend, and occasionally qualify the insights reached by Larry Alexander and Kim Ferzan in their influential prior collaboration, Crime and Culpability. They deftly explore any number of new issue that all criminal theorists should be encouraged to address. In my essay, I discuss and challenge their positions on omissions as well as on moral ignorance. Their treatment of the latter issue is a clear improvement over that in their earlier book. But their views on omissions suggest to me that they should have had reservations about some of the most fundamental claims of their overarching theory.

Efforts to apply the principle of proportionality to criminal sentences are notoriously problematic. But even though they are daunting, only a few legal philosophers believe we should give up trying to do so. Perhaps we can make progress overcoming some of the many legal difficulties by attending to how the principle is applied in non-legal contexts—that is, in contexts I call personal life. Proportionality, I believe, is an attractive principle in penal sentencing because it is an attractive principle in ordinary situations in which persons are sanctioned for wrongdoing. I briefly mention several familiar non-legal contexts in which sanctions have recently been imposed on celebrities or public figures for real or perceived wrongdoing. My hope is that sensitivity to how the principle of proportionality is interpreted in these contexts might facilitate efforts to apply this principle to sentencing domains. At first glance, proportionality as applied in non-legal contexts appears to differ from its penal analogue. I describe some of these alleged differences. Among the foremost is that judgments of proportionality in personal life often respond to how the transgressor has behaved apart from the particular incident that has attracted media attention. Penal sanctions, by contrast, are said to be imposed only for the particular crime charged. I argue that this difference is more apparent than real. I conclude that we can reach a few modest insights about how to apply the principle of proportionality in criminal sentencing by attending to its counterpart in personal life.

Under what circumstances should ignorance that someone is violating a moral or criminal rule preclude or lessen his moral responsibility and/or penal liability? In this chapter, I first construct a schema or framework for how to think about this issue. Quite a bit of confusion and uncertainty, I am sure, derives from a failure to understand exactly what this question is asking. I next defend some substantive views about how this question should be answered. If my defense is cogent, I conclude that a person who is ignorant that his conduct violates a moral or legal rule is almost never as blameworthy and/or deserving of as much punishment as someone who is fully aware that his behavior is wrongful and/or criminal. The best general accounts of responsibility and blameworthiness are far more receptive than positive law to allowing ignorance of wrongdoing as a complete or partial excuse.

Among the most noteworthy and impressive aspects of A.P. Simester’s monumental Fundamentals of Criminal Law is its pervasive pluralism. Many philosophers of criminal law, I have frequently complained, are excessively monistic on a number of basic questions about which pluralism is the more defensible option. I fear, however, that Simester’s views are sometimes too pluralistic. In particular, he assigns five separate functions to mens rea, and advances the novel claim that “mens rea is not, uniquely or even predominately, about culpability.” He alleges that “the so-called ‘fault’ requirements plays an important role in mediating the scope of prohibitions.? My central objective is to challenge whether Simester is correct about whether mens rea has this alleged.