Martin P. Golding

The Cultural Defense

Because of immigration in the West, increased cultural diversity poses a variety of problems for the criminal justice system. This paper examines whether a so-called “cultural defense” ought to be allowed as a freestanding defense to a criminal charge. Such a defense would “negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actors cultural heritage or tradition.” The cultural defense, as a formal defense, and the use of cultural evidence in order to buttress one of the traditional defenses, are distinguished. Three cases are discussed to illustrate the issues. The possible similarity of the cultural defense to an ignorance or mistake of law defense is then considered. The latter is accepted by such theorists as Gunther Arzt and George P. Fletcher and also apparently in German law, but it is rejected by Jerome Hall on the ground that it undermines the objectivity of the criminal law. The similarity, however, is shown not to hold. It is concluded that a freestanding cultural defense should not be allowed.

The Primacy of Welfare Rights

This paper deals with three topics: (1) types of rights, (2) the development of the terminology of rights, and (3) the question of the primacy of welfare rights. Because these topics are interrelated, my exposition does not observe rigid boundaries among them. There is no pretence at all that any of these subjects is fully covered here; nor is it proposed, except for one writer, to touch upon the contemporary literature on rights, as noteworthy as some of that literature is. In order to gain entrance into the field, on which the writing has grown to massive proportions, I shall begin with an interesting historical phenomenon, some of whose philosophical import I want to explore. I should say at the outset, however, that the general motivation of this paper is the problem of the significance of the language of “rights.” Does it really make a difference, for instance, to speak of the “rights of man” rather than the “common duties of humanity”? Does the term “rights” add anything of special significance or is its only significance rhetorical and ideological? Can we dispense with the language of rights and still say everything we need to say about our moral relations? I confess to a moderate skepticism about the necessity of the language of rights in the last analysis. At any rate, this paper is intended as a contribution, however small, to this problem. The historical phenomenon with which I am going to begin will enable us to bring into focus the issue of the meaning of “rights.”

Philosophy of law

Introduction. The Scope of Legal Philosophy. Nature of Law: Problems. Nature of Law: Theories. Limits of Law. Punishment: The Deterrence Theory. Punishment: Retributivism. Dispute Settling and Justice.

Justice and Rights: A Study in Relationship

This paper deals with a few aspects of the relationship between the concepts of justice and rights along historical and, occasionally, analytical dimensions. A close connection between these notions is often assumed. In the fifth chapter of Utilitarianism [21], for instance, John Stuart Mill purports to explain the stringency of the demands of justice on the grounds that justice is correlated with that part of morality which is concerned with rights. More recently, Gregory Vlastos has maintained that “an action is just if, and only if, it is prescribed exclusively by regard for the rights of all whom it affects substantially” ([28], p. 53). And still more recently, Ronald Dworkin has asserted that our “intuitions about justice” presuppose that “people have rights … ” ([12], p. xii). Although there is ample historical precedent for such statements, I want to consider some older sources concerning which it may be difficult to establish what the precise connection between these notions is. In some respects we shall be dealing with a special case of a general problem in the methodology of the history of ideas.

My Philosophy of Law

My approach to the philosophy of law is similar to that of most American (U.S.) philosophers. The philosophy of law, like many other branches of philosophy, is comprised of two sorts of issues, conceptual (analysis of legal concepts) and normative (matters of values and ideals). And like most American legal philosophers, as I believe the case to be, I have not been concerned with whether, and how, the philosophy of law should be distinguished from jurisprudence, legal theory, and legal dogmatics (a term that is virtually unknown among American writers), which is a problem that Continental thinkers are so worried about. I have been, and I believe most American legal philosophers have been, governed more by the interest of a topic than by such systemic considerations. American legal philosophy, at least, may therefore seem somewhat parochial, driven, as it often is, by questions deriving from U.S. constitutional law and the common law.

Discovery and Justification in Science and Law

In this paper I propose to discuss a certain account of the nature of judicial decision-making by bringing to bear on it a distinction that was long held to be canonical in the philosophy of science, namely, the distinction between the context of discovery and the context of justification. In recent years this distinction has come under attack from two rather different directions. Although I shall not be able, here, to evaluate the validity of these attacks as far as the philosophy of science is concerned, I think that they provide useful perspectives from which to study the judicial process. The particular account of judicial decisionmaking is associated in Anglo-American countries with the disparate group of thinkers known as Legal Realists. I am not sure as to how widely this view is still held, but for a reason that will later become apparent, I suspect that it has more proponents than is openly admitted.