Matt Matravers

The chapter concerns the relationship between the justification of criminal law and punishment and the justification of the state. It briefly surveys the debate between retributivists and consequentialists and argues that both are inappropriate when it comes to state punishment. It next turns to arguments by Vincent Chiao, Malcolm Thorburn, and Antony Duff that locate criminal law and punishment in public law. The final parts of the chapter develop an account of criminal law and punishment as best understood as constitutive elements of a liberal political community necessary to ensure stability, to reinforce the commitment of the members to the rules as regulative of their plans of life, and to communicate and censure the offender for the wrong that has been done.

The state's use of the threat, and imposition, of punishments to regulate conduct is thought (or at least said) by many to be legitimised by the idea that the criminal law's burdens only fall on those who are blameworthy for their conduct. However, the formal concept of 'blameworthiness' needs to be made substantive. This puts various ideas regarding the criminal law's person at the heart of debates about blame, guilt, and responsibility. How is the criminal law's person constructed, by whom, and with what disciplinary norms? How is it threatened by new 'knowledge', and how do those threats play out amongst the various stakeholders who claim the criminal law's person as 'theirs'? To address these and cognate questions, this volume brings together an international group of academics to engage with the criminal law's person from a range of disciplinary perspectives.

This brief article is concerned with an aspect of Jonathan Glover's book, Alien Landscapes?. After reflecting a little on the book as a whole, the question that is taken up is, ‘Why might a book that seeks to help those without mental disorders understand what they are like “from the inside” be of interest to laymen and practitioners in the criminal law?’. One answer lies in part in the way that ‘what it is like from the inside’ might interact with judgements of criminal responsibility. Taking its cue from examples used by Glover the article considers, and puts pressure on, the ‘dual view’ he proposes: that when dealing with those with mental disorders we should treat them as responsible agents in the sense of not withholding from them Strawson's ‘reactive attitudes’, while nevertheless accepting that their personalities and behaviours are the results of large doses of ‘bad luck’.

Antony Duff has argued that an important precondition of criminal liability is that the state has the moral standing to call the offender to account. Conditions of severe social injustice, if allowed or perpetuated by the state, can undermine this standing. Duff’s argument appeals to the ordinary idea that a person’s own behaviour can sometimes negate his standing to call others to account. It is argued that this is an important issue, but that the analogy with individual standing is problematic. Moreover, Duff’s account of standing needs to address two interconnected issues: first, when and in what way the state can lose its standing to call offenders to account, and second, over what range of offences. Key Words: criminal liability • Duff • punishment • social injustice.

Brian Barry's Justice as Impartiality is an important book. One of its contributions to the discipline is a characteristically clear presentation of what follows if one accepts a commitment to equality, and the reasonableness of continuing and profound disagreements about the nature of the good life. I take the argument of Justice as Impartiality to be an important next step in the attempt to give an account of the content of justice which is impartial, fair, or neutral between conceptions of the good, and engaging with it has the great advantage that many of the criticisms that can be made of Barry apply to other liberal contractualist theories of social justice. It is faintly ironic that it is one of Barry's great virtues, his clarity, that makes it easier to see the problems inherent in the attempt to complete the impartialist project. I have not attempted below to offer a systematic summary and critique of Barry's book or any particular section of it. Instead I have opted to try to engage with the ideas that drive it at a more fundamental level

Andrew Simester and Andreas von Hirsch’s Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Simester and von Hirsch 2011) is an important contribution to the philosophical debate over the nature and ethical limits of criminalisation. As they note in their reply in this symposium, one of the novel aspects of their account is that they do not advance one “unified, grand theory”. Rather, they analyse each ground of criminal prohibition—wrongfulness, harm-based, offense, and paternalistic prohibitions aimed at preventing self-harm—so as to develop guiding principles for their use (or, in the case of paternalism, the absence of an independent principle that would underwrite its use).The result is a rich set of arguments that advance a number of debates across the field of criminalisation.However, that is not all: the participants share the view that, as Tatjana Hörnle puts it, “any theory of criminalization presupposes assumptions about the functions of the criminal law. The q

Michelle Madden Dempsey’s Prosecuting Domestic Violence: A Philosophical Analysis (2009) is an important book for many reasons. Amongst these are the prevalence of domestic violence and the extraordinary, largely unaccountable discretionary powers wielded by prosecutors in the United States. Against this background, Dempsey asks in particular what prosecutors should do when the victims of domestic violence withdraw their support from the proposed prosecution. In Prosecuting Domestic Violence, Dempsey provides a general account of prosecutorial practical reasoning that can be applied to answer this question. Given that she argues that “particularly aggressive prosecution” is in at least some cases justified, the later chapters of the book address issues surrounding the victims of domestic violence: their rights and duties when it comes to prosecution and the measures that might be directed against victims who are unwilling to co-operate.What Dempsey calls her “central analytic tool” in ..

This paper is concerned with how we ought to think about legitimate expectations in the non-ideal, ‘real’ world. In one (dominant) strand of contemporary theories of justice, justice requires not that each gets what she deserves, but that each gets that to which she is entitled in accordance with what Rawls calls ‘the public rules that specify the scheme of cooperation’. However, that is true only if those public rules are part of a fully just scheme and it is plausibly the case that no such scheme obtains in the real world. Given that, and given the centrality of legitimate expectations to theories of justice, it is vital to think about the status of such expectations in non-ideal circumstances. Having explained the sense in which legitimate expectations have come to play a role often previously associated with desert, a brief argument in favour of an ‘expectations’ view of punishment is considered to show that the system to public rules that generates expectations must itself be (in some sense) just. This argument is illustrated by appeal to just punishment and the relevance of thinking about punishment and not merely distributive justice is defended. In the absence of justice, one possibility would be simply to declare that there are no legitimate expectations and so theories of justice provide no guidance as to who should get what in non-ideal conditions. However, this would be to render such theories more-or-less useless in practice. Through discussion of a series of vignettes, the paper offers an account of how we might think about the demands such expectations place on the systems that give rise to them even in cases where the system is unjust.

In this essay I agrue that contemporary Anglo-American liberal egalitarianism has at its heart a tension: the goal is to find principles of justice that are fair in respecting the distinction between choice and chance and that do not invoke controversial metaphysical arguments. This is a tension because distinguishing between choice and chance itself requires invoking controversial metaphysical arguments. I proceed by offering, and then examining, the thought that Scanlon's distinction between ?attributive? and ?substantive? responsibility offers a route out of the tension described above. The greater part of the essay is taken up with examining Scanlon's account of responsibility and the distinction between substantive and attributive responsibility. My conclusion is that Scanlon does not offer a compelling account of substantive compatibilism; that his theory does not, therefore, release the liberal egalitarian from the tension; but that this does not show that the direction indicated by Scanlon's theory is the wrong one