Showing papers in "Law and Philosophy in 1985"

The serpent beguiled me and i did eat: Entrapment and the creation of crime

Abstract: This paper examines the legitimacy of pro-active law enforcement techniques, ie the use of deception to produce the performance of a criminal act in circumstances where it can be observed by law enforcement officials It argues that law enforcement officials should only be allowed to create the intent to commit a crime in individuals who they have probable cause to suppose are already engaged or intending to engage in criminal activity of a similar nature

The expressive conception of norms — an impasse for the logic of norms

Abstract: The recent development of the ontology of norms has taken a surprising turn. Some writers in deontic logic (or perhaps more appropriately, in the logic of norms) and in the philosophy of law have adopted a conception of norms which stresses a close connection between norms and acts of commanding, and which either abolishes any possibility of developing a logic of norms or leads to a transfer of logical relations and inference operations from the field of norms into the field of descriptive norm-contents, all of which looks rather similar to a proposal made by J5rgen J6rgensen in the thirties.1

Hart, Legal rules and palm tree justice

Abstract: In this paper I defend a ‘liberal’ theory about how legal rules can and ought to be interpreted. The theory emerges from a critical examination of H. L. A. Hart's influential views on the limited but unavoidable indeterminacy of legal rules. I begin with a brief sketch of Hart's early theory (as it is traditionally understood) offering various suggestions as to how it might usefully be modified. Next, several possible objections to my modifications are sketched and criticized. Finally, reasons are provided for supposing that the modified theory may well represent Hart's current position.

The structure of basic human rights

Abstract: This paper offers a theory of the structure of basic human rights which is both compatible with and clarificatory of the traditional conception of such rights. A central contention of the theory is that basic rights are structurally different from other kinds of moral rights, such as “special rights,” because of differences both in the way in which basic rights have content and the model on which basic rights are correlative with duties. This contention is exploited to develop and defend the central thesis of the theory, namely that basic human rights are bundles of mutually held “active” rights enjoyed by persons in virtue of the specifiable moral relationships they bear to each other.

Marxism and the criminal question

Abstract: The question considered is whether it is possible to trace a theoretical strategy for a criminal policy on the basis of Marx's work. The answer offered is that Marxian political and economic analysis does not supply any “general theory” of criminality and that any attempt to formulate such a theory (as in Lenin, Pasukanis or Gramsci) necessarily leads to authoritarian and regressive conceptions of crime and punishment. Nevertheless the authors maintain that it is possible to trace three theoretical suggestions within Marxian thought which allow of a fruitful approach to the criminal question. The first suggestion relates to the economic roots of many aspects of modern criminality; the second regards the Christian and bourgeois “superstition” of moral liberty and individual culpability; the third suggestion deals with the lack of a guaranteed “social space” as the prime root of crime. These theoretical suggestions permit clarification of the social character of penal responsibility and this character points to the need for the socialization (but not deregulation) of criminal treatment.

What is so special about [free] speech?

Abstract: 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.