Douglas Husak

Philosophy of Criminal Law.

This study offers both a penetrating examination and assessment of the theory and principles that underlie contemporary Anglo-American substantive criminal law, and a critique of what the author perceives as basic inadequacies in the accepted orthodox theory of criminal law. Noted legal theorist Douglas N. Husak analyzes the reasoning behind the general principles of modern criminal law theory and demonstrates the relationship between criminal law theory and its contemporary practice. Husaks central argument is that the interpretation and application of the general principles of criminal liability presuppose a moral and political philosophy. He contends that most of the major criminal theorists in Anglo-American legal history (Austin, Holmes, Stephen, Hall, Williams, and others) have supposed that criminal theory can be empirical, scientific, and objective and have emphasized such concepts as action, harm, and causation, which seem amenable to empirical analyses, at the expense of moral and political philosophy. The author argues that revising criminal theory to include moral and political philosophy will make a greater contribution to justice in the principles and practice of criminal law.

The moral relevance of addiction.

I attempt to understand and assess the widespread belief that addiction is relevant to morality. I examine several accounts of how addiction might be significant from a moral point of view. Although I briefly discuss theories of virtue, I focus on three possible ways addiction might be relevant to moral blame. First, blame might be imposed for the act of using addictive drugs. Second, blame might be imposed for the condition of being addicted. Third, blame might be imposed for further risks persons are likely to undertake once they have become addicts. I conclude that each of these accounts has some plausibility, but none is entirely unproblematic. Addiction probably is relevant to morality, although its degree of importance is not as great as some commentators appear to believe. The moral relevance of addiction does not appear to rise to whatever level would justify a punitive response to addictive drug users.

Paternalism and Consent

I begin with an ordinary, everyday example from which I hope to generalize about the justifiability of paternalism and, to a lesser extent, about the difficulties of justifying paternalism in the criminal law. When permitted to eat anything he chooses, 4-year-old Billy skips his vegetables altogether and eats only his ice cream dessert. His father has tried to explain the reasons to eat a balanced diet, but Billy is unmoved, and has not changed his behavior. Suppose his father comes to you for advice about what to do at their next dinner. I stipulate that the father’s only reason for seeking advice is to improve Billy’s health and welfare by ensuring that he eats a more nutritious meal than if left to his own devices. It seems reasonable for you to recommend that Billy not be permitted to eat his ice cream unless and until he finishes his vegetables. Suppose his father decides to follow your advice. This example not only describes a situation in which Billy is treated paternalistically but also represents a relatively clear case in which the paternalistic treatment is justified. In any event, I make these two assumptions about this case.

Principles of law : a normative analysis

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The Sequential Principle of Relative Culpability

A rational defense of the criminal law must provide a comprehensive theory of culpability. A comprehensive theory of culpability must resolve several difficult issues; in this article I will focus on only one. The general problem arises from the lack of a systematic account of relative culpability. An account of relative culpability would identify and defend a set of considerations to assess whether, why, under what circumstances, and to what extent persons who perform a criminal act with a given culpable state are more or less blameworthy than persons who perform that act with a different culpable state.

What is so special about [free] speech?

Legal and political philosophers (e.g., Scanlon, Schauser, etc.) typically regard speech as special in the sense that conduct that causes harm should be less subject to regulation if it involves speech than if it does not. Though speech is special in legal analysis, I argue that it should not be given comparable status in moral theory. I maintain that most limitations on state authority enacted on behalf of a moral principle of freedom of speech can be retained without supposing that speech is entitled to a degree of protection not afforded to (most) other forms of conduct. My argument questions some standard assumptions made by philosophers about the relationship between moral and legal principles.

Book review: Human Rights and Drug Control: The False DichotomyTakahashiSaul, Human Rights and Drug Control: The False Dichotomy, Bloomsbury Publishing: London, 2016; 199 pp.: 9781849467063, £55.00

is that such offending is relatively rare and the pathway to such an extreme offence so unique to each individual that a theoretical model will not work in this context. This would appear to match some of the difficulties others have had in this area of research and may well contain an element of truth. Working in the field of offender rehabilitation I anticipate that this volume will have limited use for practitioners working in the community with offenders post-release. It may give guidance on how to formulate a case, particularly historic cases with limited information about events leading up to commission of sexual homicide. Or it may help workers to identify those clients who are at risk of perpetrating sexually motivated murder in the future and enable practitioners to develop plans to avoid this scenario. This research would certainly appear to be of much greater utility to those investigating sexual homicides or those whose job it is to develop initial treatment plans in custodial settings. More than that this book appears to be an invaluable resource for those carrying out future research in the field of understanding sexual homicide.

Review essay / philosophical analysis and the limits of the substantive criminal law

George P. Fletcher, Basic Concepts of Criminal Law New York: Oxford University Press, 1998, xi + 223 pp.

A Theory of Freedom.

Foreword Miriam Benn and Gerald F. Gaus Preface Acknowledgments 1. persons and values 2. Practical rationality and commitment 3. Reasons in conflict: quandaries and consistency 4. Values and objectivity 5. natural personality and moral personality 6. The principle of respect for persons 7. Freedom of action 8. Freedom as autarchy 9. Autonomy, and positive freedom 10. Autonomy, integration, and self-development 11. Self-realization, instinctual freedom, and autonomy 12. Autonomy, association, and community 13. Human rights and moral responsibility 15. Interests in privacy 16. Conclusion: a semantic theory of freedom Notes Index.

On the Rights of Non-Persons

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. Given what turns on the dispute, I will conclude, contra much recent literature on the subject, that no good reasons have been offered to suppose that nonpersons are possessors of moral rights. Moreover, there are weighty (though not conclusive) reasons for supposing that non-persons are not possessors of moral rights.