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1Strict Liability, Justice and ProportionalityIn Andrew Simester (ed.), Appraising Strict Liability, Oxford University Press. pp. 81--104. 2005.
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2Limitations on Criminalization and the General Part of Criminal Law,”In Stephen Shute & Andrew Simester (eds.), Criminal law theory: doctrines of the general part, Oxford University Press. pp. 13--46. 2002.
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128The Legalization of DrugsCambridge University Press. 2005.In the United States today, the use or possession of many drugs is a criminal offense. Can these criminal laws be justified? What are the best reasons to punish or not to punish drug users? These are the fundamental issues debated in this book by two prominent philosophers of law. Douglas Husak argues in favor of drug decriminalization, by clarifying the meaning of crucial terms, such as legalize, decriminalize, and drugs; and by identifying the standards by which alternative drug policies shoul…Read more
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17The Role of Mens Rea in Mediating the Scope of ProhibitionsCriminal Law and Philosophy 1-14. forthcoming.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, uniqu…Read more
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4OvercriminalizationIn Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory, Blackwell. 1996.This chapter contains sections titled: The Meaning of Overcriminalization Why Overcriminalization Is Worrisome Political and Scholarly Causes of Overcriminalization A Normative Theory of Criminalization References.
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65Why Gun Control is So HardCriminal Justice Ethics 38 (1): 55-64. 2019.The issue of gun control is among a growing number of polarizing topics that may seem immune from meaningful compromise and rational debate. Although their intransience may be exaggerated, few citi...
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21Is Fair Opportunity a Comprehensive Theory of Responsibility?Criminal Law and Philosophy 1-10. forthcoming.I challenge the adequacy of David Brink’s “master principle” of culpability. I allege that it fails to account for the moral relevance of ignorance of wrongdoing. I describe three cases in which I believe that Brink’s theory of normative competence cannot account for the significance of a variable that bears on culpability. In most of this paper I attempt to anticipate and reply to the various responses Brink might offer to my challenge.
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6Sentencing PluralismIn Matthew C. Altman (ed.), The Palgrave Handbook on the Philosophy of Punishment, Palgrave-macmillan. pp. 419-437. 2022.Husak makes a number of theoretical observations in favor of a general conception of sentencing that he calls sentencing pluralism. This framework is pluralistic in two different respects. In the first part of the chapter, he argues that the goals or objectives of a sentencing scheme are diverse and must draw from the insights supplied by various disciplines. Thus his framework embodies what he calls disciplinary pluralism. In the second part of the chapter, he argues that the sentence offenders…Read more
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72Philosophy of criminal lawRowman & Littlefield. 1987.This volume collects 17 of Douglas Husak's influential essays in criminal law theory. The essays span Husak's original and provocative contributions to the central topics in the field, including the grounds of criminal liability, relative culpability, the role of defences, and the justification of punishment. The volume includes an extended introduction by the author, drawing together the themes of his work, and exploring the goals of criminal theory
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53Retributivism and Over-PunishmentLaw and Philosophy 41 (2): 169-191. 2022.Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to rebut them. I…Read more
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9Legal paternalismIn Hugh LaFollette (ed.), The Oxford handbook of practical ethics, Oxford University Press. pp. 387--388. 2003.
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19Proportionality in Personal LifeCriminal Law and Philosophy 15 (3): 339-360. 2021.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 pr…Read more
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24Larry Alexander and Kimberly Kessler Ferzan on Omissions and Normative Ignorance: A Critical ReplyCriminal Law and Philosophy 16 (3): 441-454. 2022.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 bo…Read more
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17Ignorance of Law: How to Conceptualize and Maybe Resolve the IssueIn Larry Alexander & Kimberly Kessler Ferzan (eds.), The Palgrave Handbook of Applied Ethics and the Criminal Law, Springer Verlag. pp. 315-333. 2019.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 th…Read more
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27Criminal Law at the MarginsCriminal Law and Philosophy 14 (3): 381-393. 2020.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 …Read more
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41Wrongs, Crimes, and CriminalizationCriminal Law and Philosophy 13 (3): 393-407. 2019.I will focus on Tadros’s general views about criminalization and how he contends philosophers should not think about it. Misguided approaches, according to Tadros, include attempts to identify principles that constrain the scope of the criminal law, as well as efforts to establish that given considerations constitute reasons for or against the use of the penal sanction. In what follows, I begin with a few general remarks about the connections between Tadros’s treatment of criminal justice and th…Read more
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32Aspiration, Execution, and Controversy: Reply to My CriticsCriminal Law and Philosophy 12 (2): 351-362. 2018.I respond to Michael Zimmerman and Gideon Yaffe, both of whom have written thoughtful and constructive criticisms of my “Ignorance of Law”. Zimmerman believes I do not go far enough in exculpating morally ignorant wrongdoers; he accuses me of lacking the courage of my convictions in allowing exceptions for reckless wrongdoers and for willfully ignorant wrongdoers. Yaffe, by contrast, thinks I rely on a defective foundation of moral blameworthiness. He proposes an alternative account he alleges t…Read more