It is hardly surprising that philosophers have long regarded the criminal law as fertile ground. As the most visible application of state power, the criminal law raises issues of the first importance to political philosophy: issues of liberty, justice, and the common good. In announcing and enforcing rules of behaviour the criminal law connects with the concerns of moral philosophers, who have paid particular attention to the justification of punishment and the moral basis of criminal responsibility. Lastly, since the criminal law is typically concerned with the actions of human beings, it raises issues in the philosophy of action. Philosophers have devoted much attention to such central criminal law concepts as voluntariness, intention, and causation.

The essays collected here explore topics which fall into three broad groups: the interests protected by the criminal law, the relation of agents to outcomes, and defenses to otherwise criminal conduct. Criminal law protects certain types of interests against certain kinds of invasions. Not everything that sets back a person’s interests is subject to legal sanction. Among those interests that the law deems worthy of protection, only certain kinds of invasions merit criminalization. The papers by Marshall and Duff, Hampton, Lacey, and Brett all touch on issues of the moral basis of criminalization. Marshall and Duff focus on the general issue of criminalization, arguing that crimes merit a certain kind of public response because they are attacks on the public. Drawing out the implications of the familiar fact that the state is a party to a criminal proceeding, they argue that the criminal law appropriately addresses wrongs that are shared by the wider community. For Marshall and Duff, criminalization is about deciding that a wrong against one person is serious in a way that makes it a wrong against everyone in the community, and demands a collective response.

Disputes over the scope of specific rights, e.g., over the right to free speech, the right to property, or the right to equality, often originate in differing assumptions concerning the reasons that justify the protection of these rights. Thus, those who believe that reasons of autonomy justify the right to free speech will identify the scope of this right differently from those who justify this protection through, say, appeal to the marketplace of ideas. Despite the diverse subject matter of these disputes, there is a uniform structure characterizing them. Some supporters of rights, call them “traditionalists,” locate the reasons that justify the protection of rights within individualistic concerns. Others, call them “revisionists,” deny this traditional claim and argue that rights can be partially or exclusively grounded in societal interests.

Traditionalism’ and ‘revisionism’ are terms stipulated to clarify the conceptual difference between two different understandings of rights. These understandings are often implicit in the way the term ‘rights’ is used in political or legal debates concerning the scope of particular rights. At other times, these implicit understandings of the term ‘rights’ are articulated more or less explicitly by moral or political philosophers investigating the nature of rights. Thus, when the terms ‘revisionist’ or ‘traditionalist’ are used in this article, they are used in two different ways. Sometimes, they denote implicit fundamental presuppositions about the nature of rights—presuppositions which underlie many of the contemporary debates over the scope of particular rights. At other times, they denote philosophical theories exploring systematically the nature of rights and the reasons underlying them.

In colloquial speech the terms ‘crime’ and ‘criminal’ have a use which, though connected to the strictly legal notion of criminality, goes well beyond it. It is a way of indicating a serious condemnation of an activity or action. Similarly, when people say of something “There ought to be a law against it,’ they are not necessarily speaking literally, though they might be. Nonetheless, even when they are speaking colloquially and figuratively in using this expression, it is clear that the ‘law’ here is the criminal law and not the civil law. The sense that ‘something ought to be done’ expressed in these usages reflects the idea that there is a kind of wrong which demands a collective response rather than just an individual one. The figurative, colloquial use trades, of course, on the literal one. However, pace Devlin, it requires more than a general feeling of outrage to characterise just what kinds of wrongs are appropriately categorised as crimes. The enduring debates concerning the distinction between crime and tort bear witness to the fact that such a characterisation is far from easy.

These academic debates can be situated against the background of wider philosophical discussions about the relationship between the individual and the collective, the private and the public, and the way in which these pairs of concepts map onto one another. We might agree with George Fletcher that “Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs”: the criminal law should deal with those kinds of wrong which are matters of public concern, and which therefore require a collective response from the whole community; wrongs which are, by contrast, properly the concern only of the private or individual victim should be dealt with under the civil law. What is far less clear, however, is how we should characterise that distinction.

Environmental protection laws are a recent legal development. As soon as these statutes first began to appear, it was evident that the fundamental principles of environmental protection would conflict, at some point, with fundamental principles from other, older, substantive bodies of law. In the American legal system, nowhere has the conflict been more serious than between environmental protection law and the law of bankruptcy. While this problem has attracted significant attention in the law reviews, it has been little noticed outside legal circles. This conflict sheds important light on the nature of normative conflicts generally, and points to the need for a well-developed theory of conflict resolution which courts can use when deciding cases. The root of the problem lies in a conflict between the underlying policy goals of these substantive bodies of law such that satisfying one policy objective necessarily undercuts the other. As such, the conflict between bankruptcy and environmental protection should be classified as a normative collision. This discussion examines this normative collision as it exists in American law in some detail. Such an examination provides interesting insights into the nature and pervasiveness of normative conflicts in our legal system. It also serves to illuminate both the theoretical and practical need for a coherent, well developed mechanism for resolving normative conflicts when conflicts arise.

In 1993, two young boys were convicted for the murder of a two-year-old toddler, James Bulger. Both boys were ten years old when the murder was committed. Such a violent act raises the timeless question: At what age should a child be held fully responsible by a nation’s criminal justice system for criminal conduct? Serious crimes are being committed by young persons and the public seems to have the impression that such acts are being committed at an increasingly young age.

Generally, the age of criminal responsibility (or legal responsibility) refers to the age at which a person becomes subject to the full penalties provided by the criminal law and this age varies greatly from country to country. In the Bulger case, at the age of ten, both boys had reached the age of criminal responsibility in England. Yet in other countries, this would not have been the case. In Canada, for example, the young persons would not have been subject to the criminal law since the minimum age of legal responsibility is twelve years. Historically, young persons have been given special treatment under the criminal law. Under the doli incapax (incapable of committing a crime) standard, a child’s capacity to commit a crime was questioned when attempting to affix criminal responsibility. Some countries still adhere to this common law doli incapax rule. In the first section of this paper, I will outline both the historical and present diversity between countries in relation to the age of criminal responsibility, as well as the associated advantages and disadvantages of these various systems.

In the Spring of 1995,1 was asked to testify as an expert witness in a case in Canada that raised a number of different philosophical and jurisprudential issues. The case concerned whether prisoners sentenced to two years or more in a Canadian penitentiary had the right to vote. For many years, Canada has denied those incarcerated in its prisons voting rights (following the British practice of doing so), but after the enactment of the Canadian Charter of Rights and Freedoms in 1982, which grants each citizen of Canada the right to vote, that practice was challenged; in a series of court cases, prisoners maintained that denying them the right to vote during their incarceration amounted to denying them one of their basic constitutional rights as Canadian citizens.

One of the most important issues raised by this case was the nature of Canada’s political identity. The fact that the political identity of a state can be partly at stake in a law is, I believe, important and insufficiently recognized. A law can be not only a tool for the organization of the community (e.g., by promoting order, or coordination, or public wellbeing), but also a significant expressive force in that community, symbolizing the community’s sense of its values and (what I will call) its “political personality”. Indeed, for countries which are not culturally homogeneous and in which the unity of the community is primarily purchased through the principles of its polity, the expressive nature of certain laws can be essential in the creation, maintenance or revision of a unifying identity for that society; this is an identity that not only helps to hold the pluralist society together but also helps people to have a sense of themselves as members of that political community. I hope to argue that the controversy surrounding the issue of whether or not prisoners’ voting rights should be suspended reflects controversy about what kind of state Canada is and shows the ways in which law can be expressive.

As Michel Foucault famously observed, the Nineteenth Century’s construction of sexuality as an unspeakable subject paradoxically generated an extraordinary amount of talk about sex. This paper engages with another paradox in the same field: for my main thesis will be that the criminal law which purports to regulate sexual behaviour has, in an important sense, very little to do with sex at all.

Perhaps this rather startling aspect of my argument explains the difficulty which I had in writing the paper. It probably had more to do, however, with the fact that it was originally written as an inaugural lecture. I hope that you will bear with me if I begin by describing the history of the lecture—for this history is, I think, an integral part of the present paper’s argument.

Writing and delivering an inaugural lecture is, in my experience, a uniquely challenging process, which forces one to think in a particular way about the place one sees one’s work as having in and beyond the academy. For a woman, there is an added complication which probably (though subconsciously) informed the reference to ‘unspeakable subjects’ in my title. The delivery of a lecture is an authoritative activity culturally marked as masculine. This issue about, as it were, the sex of lecturing came home to me very forcefully when I asked a friend to read a draft of the lecture: a few pages into the text, she observed: ‘so far, the tone is more woman than professor….’ Having completed my higher education without once being taught by a woman, it perhaps wasn’t surprising that I was having trouble finding a feminine professorial voice. But my friend’s comment touched also on a deeper issue. This lies in the controversial philosophical and psychoanalytic literature which equates the feminine with a state of lack, abjection and silence. If a woman professor is in some sense ‘speaking as a man,’ and if, as a feminist and a woman, one wants to find an authentic voice and style, the inaugural lecture presents at once the forum in which one’s responsibility to do so is greatest, and that in which success is most elusive. I spoke, then, as a subject of the unspeakable sex, exercising the apparently impossible right of speaking on the unspeakable subject of sex.

Nearly twenty-five hundred years ago, Aristotle first elucidated his theory of morality in the Nicomachean Ethics by systematically examining and analyzing the virtues which he felt were necessary for the attainment of the Good in the here and now. One of the most controversial and perhaps least understood portions of this magnum opus are those that pertain to the now famous building blocks of legal philosophy: corrective and distributive justice. These terms remain as relevant today as when they were first “discovered” in large part due to modern legal theory’s increasing tendency to rely on Aristotle’s corrective and distributive ideas as the organizing and distinguishing principles of the private and public law, respectively. If corrective justice is to define the limits and form of the private law, however, a blind reliance on Aristotle’s interpretation is mistaken. An examination of Aristotle’s corrective justice shows that his legal philosophy is incomplete and often paradoxical—asserting premises that are irreconcilable on a plain reading of Aristotelian texts. In order to demonstrate these inconsistencies, this paper will first distinguish between corrective and distributive justice. It will then examine three of the most difficult and least understood aspects of corrective justice: namely, Aristotle’s conception of equality, reciprocity, and correlativity in gain and loss.

In recent years, there has been tremendous interest in the contributions of the great German philosopher Immanuel Kant to on-going debates about the appropriate nature of international justice and law. The end of the Cold War, for example, seemed to bring with it promises of greater international cooperation of the kind envisaged by Kant. Furthermore, those interested in the more explicitly moral aspects and potentialities of international law, such as those regarding human rights protection, have looked to Kant for comfort and inspiration in the face of strong pressures from doctrines dismissive of such aspects, such as law-and-economics and the statist strictures of realpolitik.

There has, however, been widespread scholarly disagreement over Kant’s precise heritage in this regard: some, for instance, have found in Kant’s international writings a harbinger of world government while others have criticized Kant for faihng to specify any concrete powers for his fabled cosmopolitan federation; some have accused Kant of sacrificing his exalted moral principles on the dubious altar of state-centred expediency while others dismiss Kant as one of the most naively optimistic, and hopelessly moralistic, international thinkers ever; and, finally, some have accused Kant of glorifying the resort to warfare while others insist that Kant actually advocated “an extreme pacifism.” There is, in short, a ferocious and complex debate regarding which set of ideas can properly be called the “Kantian” view of these foremost issues of international law and what, if any, value can be attached to it.

In this paper I address a question that has not been a prominent feature of cases or articles which have concerned the issue of consent in relation to sexual offenses. Much work has been done by judges and legal theorists regarding the defendant’s beliefs about the consent of the complainant and the mental element or mens rea of this offense. But, any answers to these questions presuppose some answer to a prior question: What is consent? What must be true of a person who does consent? What must be missing, on the other hand, in a situation where sexual activity takes place without consent?

Common sense provides a relatively simple answer to these questions: To consent is to give permission; a person acts without consent where no such permission has been obtained. It is this answer that I want to defend in this paper. This view assumes that talk of consent only makes sense in relation to some autonomy right. Giving consent involves autonomously making changes in a prevailing pattern of rights and obligations. It is a limited withdrawal of a right not to be interfered with; and it will make legally permissible actions that would otherwise be subject to criminal and civil penalties. To me it seems obvious that such a change in the prevailing pattern of rights and obligations can only take place where there is communication between the parties. This means that the question of consent is not just a question about the state of mind or attitude of the complainant. Rather, the matter which should be central to a court’s consideration of consent is the question of what was said or done that could be construed as granting permission to do the acts in question.

John Rawls stands in a small pantheon of writers whose ideas have shaped the vocabularies of their age. Like a classical deity, his work has been invoked by disciple and dissenter alike as the essential totem of the modern liberal state. But his Promethean creation has grown independent from its original design, attaining significance not only for its initial merits but also for the competition it offers to the plan of its creator. So from the stage of Rawlsian liberal neutrality stalks the idea of legal perfectionism.

Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials’ understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In other words, legal perfectionism broadly enshrines the notion, sometime unpopular among Western theorists, that the government has, or should have, the power to reflect ideas of good and evil—the content of the good life or of good projects or of excellence—in framing the laws. While related both to older ideas of human perfection and perfectibility and to perennial concepts of virtue and morality, legal perfectionism has developed a distinct, modern meaning.

In the Philosophy of Right, Hegel draws our attention to a feature of action that is revealed to us when we agents become aware of our freedom. At that point, he says, both the aims we project and the objects that realize them become ours.’ Of course, this “ours” does not denote a relation of property in any but a figurative sense. Our ideas, after all, cannot be owned, and the objects in which they are realized can as easily be events as things. If, for example, Bob decides to set fire to some trees in a forest and he accomplishes his purpose, then the burning of the trees may be said to “belong” to Bob, though no court will enforce his suit to prevent others from extinguishing the blaze. Clearly, the relation of belonging to which Hegel refers is one of imputation rather than property. Yet while imputation and property are distinct ideas, everyday language hints at an analogy between them. Not only do we use the same possessive pronoun to express both relations, but we also commonly speak of someone “owning up” to, or “disowning” the consequences of, a deed. Furthermore, just as in property discourse a factual relation of possession is said to generate a right (however qualified) to exclude others, so in moral discourse the factual relation of imputation is commonly thought to mark the boundaries of one’s legitimate accountability for one’s actions. Morally (if not always legally) speaking, I have a right to refuse blame for all outcomes of my action that do not belong to the action or that are not in any sense “mine”. Like property, it seems, the relation of imputation is a fortress for the self, rendering it morally invulnerable to all contingencies save those that reflect its own ends.

On May 3rd 1974 Mr. Blaue entered Ms Woodhead’s house, demanding that she have sexual intercourse with him. She refused, and he attacked her with a knife and fled. Wounded seriously, she staggered out of her house and collapsed on a neighbour’s lawn. She was taken by ambulance to a hospital, where she learned that she would require surgery. Upon being informed that a blood transfusion would be required, she refused, because permitting the procedure would have been contrary to her beliefs as a Jehovah’s Witness. She was told that if she refused a blood transfusion she would surely die. She said she preferred death to undergoing the procedure, and died early the next day.

As well as being an especially tragic case, R. v. Blaue raises several deep and important questions about the doctrine of causation in the criminal law. Did Blaue kill Woodhead? That is, was killing her among the things he did, an action of his rather than an event which followed his action, or an action of Woodhead’s? The general question underlying these more specific ones is: for which of the consequences of his action must a wrongdoer answer?

Kant described the ability to move from theory to practice, to subsume particular facts under general principles, as “judgment”:

But Kant had little to say by way of guidance for the exercise of judgment, because, in his view, judgment itself could not be completely theorized:

The distinctions that may be drawn between self-defence, necessity and duress are interesting as a matter of theory, but may also be important in practice. In some jurisdictions, for example, duress and necessity are no defence to murder whereas self-defence is a defence available in principle to all crimes. In such jurisdictions, in homicide cases, the point at which one reaches the boundaries of self-defence and enters upon the terrain of necessity may thus be of crucial significance. Drawing on Suzanne Uniacke’s theory of self-defence, I would like to suggest that each defence can be distinguished by a different key issue. In necessity cases, the key issue is the moral imperative to act: what matters is whether in the circumstances it was morally imperative to act, even if this might involve the commission of wrongdoing, in order to negate or avoid some other evil. In duress cases, the key issue is the personal sacrifice D is being asked to make: should D be expected to make the personal sacrifice involved in refusing to give in to a coercive threat, rather than avoid implementation of the coercive threat by doing wrong? In self-defence cases, the key issue is D’s legal permission to act: where V unjustly represented a threat to D (normally, although not exclusively, through his—V’s—conduct), the question is whether necessary and proportionate steps were taken by D to negate or avoid the threat. For, D has a legal permission to take necessary and proportionate steps to negate or avoid an unjust threat, even if (exceptionally) these involve the use of lethal force. So baldly stated, the differences between the defences may seem obvious. Few common law jurisdictions, and few commentators, however, have appreciated the full significance of the differences, as we shall shortly see.

J.L. Austin is usually credited with having called attention to the existence of different kinds of defenses. His philosophical insights have inspired many legal commentators, especially theorists of criminal law. The contrast between justification and excuse forms the cornerstone of his thought. Austin’s most valuable contribution was to identify and explore the similarities and differences between justification and excuse. Yet a very important feature of these defenses as Austin conceived them is typically neglected by most of the scholarship that he inspired. Austin maintained that “few excuses get us out of it completely.” Clearly, he held the same view about justifications. But most of the subsequent work on justifications and excuses has treated each as complete defenses. A complete defense, by definition, precludes liability altogether. If the foregoing claim by Austin is correct, however, relatively few excuses (or justifications) are complete defenses. Those justifications or excuses that do not preclude liability altogether—which Austin believed to be the more numerous—might be called partial defenses. Partial justifications and excuses have received far less scholarly attention than those that result in acquittal. In this paper I hope to make some small progress in correcting this oversight.

After the decision by the Supreme Court of Canada in Lavallee, Canadian women who are victims of serious domestic abuse have been able to invoke an ‘enlarged’ conception of self-defence to exonerate some acts of killing abusers. While concern remains about Lavallee, this judgement broke important ground in insisting on a more sensitive account of the actual experience of abused women, and in giving recognition to the reasonable fears that such women have for their lives. However, other than self-defence, there is no criminal law defence or plea that has been effective as a (partial) excuse or justification for killings by abused women. In this paper, I will consider the potential for a plea of provocation to serve such a role. Provocation has acquired some standing in other jurisdictions as a defence for abused women who kill but it has not as yet been effectively used in Canada. I will look at the appropriateness of provocation as a plea in some abuser homicides. The paper will discuss some ways in which the plea of provocation could be enlarged in scope and in normative power; the paper will also examine some shortcomings of the current understanding of provocation to serve a defence for women who kill. Since homicides by women make up a small fraction of all homicides, even a reformed defence of provocation would be rarely used. But the more important question is whether a plea which has been available to men for several centuries should not also be (much more) available to women who kill, and whether closer attention to the situations and perspectives of women in abusive relationships yields good grounds for thinking some kill as excusable or reasonable responses to serious provocation. The underlying concern is an equality concern; that women have equal access to suitable defences for their putative breaches of the criminal law, and that standards of reasonableness operative in criminal case deliberation be as responsive to women’s experience and women’s values as they are to men’s.