Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0017
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
If (as the last chapter argues) criminal legislation should prima facie aim at prohibiting all and only moral wrongdoing, then the actual reach of the criminal law will depend on the nature of moral ...
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If (as the last chapter argues) criminal legislation should prima facie aim at prohibiting all and only moral wrongdoing, then the actual reach of the criminal law will depend on the nature of moral wrongdoing. Is it deontological or consequentialist in nature, for example? The general shape of our moral obligations and thus of their breach, wrongdoing, is approached in this chapter through what is known in criminal law as the issue of general justification, sometimes called ‘necessity’ or ‘balance of evils.’ This justification exists whenever the evil prevented by the doing of some act is greater than the evil of doing that act, considered by itself. The contours of this most general form of justification is taken to reveal the general shape of the wrongs that can be thus justified. A complex deontological form for moral wrongdoing is elucidated in this way, a form allowing thresholds over which consequences govern, exceptions, and limited scope, to moral ‘absolutes’ such as, ‘never torture.’Less
If (as the last chapter argues) criminal legislation should prima facie aim at prohibiting all and only moral wrongdoing, then the actual reach of the criminal law will depend on the nature of moral wrongdoing. Is it deontological or consequentialist in nature, for example? The general shape of our moral obligations and thus of their breach, wrongdoing, is approached in this chapter through what is known in criminal law as the issue of general justification, sometimes called ‘necessity’ or ‘balance of evils.’ This justification exists whenever the evil prevented by the doing of some act is greater than the evil of doing that act, considered by itself. The contours of this most general form of justification is taken to reveal the general shape of the wrongs that can be thus justified. A complex deontological form for moral wrongdoing is elucidated in this way, a form allowing thresholds over which consequences govern, exceptions, and limited scope, to moral ‘absolutes’ such as, ‘never torture.’
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0007
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter argues that it is impossible to generalize about the nature and rationale of legal justifications because justifications divide themselves into two categories each of which is further ...
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This chapter argues that it is impossible to generalize about the nature and rationale of legal justifications because justifications divide themselves into two categories each of which is further subdivided. The primary division is between justifications claimed by public officials and those claimed by private agents. Even within these categories generalization is impossible, because private justifications (like public ones) separate themselves into two groupings under two distinct paradigms of justice, each ordered to a particular conception of freedom. The justifications of force against a wrongdoer belong to the formal agency paradigm, whereas the justifications of force against an innocent reflect the interdependence of the formal agency and real autonomy frameworks. Each of these groups has a distinctive rationale and therefore distinctive limiting conditions. As a consequence there is no such thing as a paradigm case of justification. Answers to the questions as to whether justifications negate wrongs in the particular case or justify abiding wrongs, whether the unknowingly justified actor is justified, whether a reasonable belief in justification is sufficient or whether a true belief is necessary vary for the different groups.Less
This chapter argues that it is impossible to generalize about the nature and rationale of legal justifications because justifications divide themselves into two categories each of which is further subdivided. The primary division is between justifications claimed by public officials and those claimed by private agents. Even within these categories generalization is impossible, because private justifications (like public ones) separate themselves into two groupings under two distinct paradigms of justice, each ordered to a particular conception of freedom. The justifications of force against a wrongdoer belong to the formal agency paradigm, whereas the justifications of force against an innocent reflect the interdependence of the formal agency and real autonomy frameworks. Each of these groups has a distinctive rationale and therefore distinctive limiting conditions. As a consequence there is no such thing as a paradigm case of justification. Answers to the questions as to whether justifications negate wrongs in the particular case or justify abiding wrongs, whether the unknowingly justified actor is justified, whether a reasonable belief in justification is sufficient or whether a true belief is necessary vary for the different groups.
Michael S. Moore
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199256860
- eISBN:
- 9780191719653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199256860.003.0003
- Subject:
- Law, Philosophy of Law
This chapter combines a legal with a moral thesis. Morality is inseparable from law here because the open-ended legal provisions on necessity and balance of evils simply reference whatever morality ...
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This chapter combines a legal with a moral thesis. Morality is inseparable from law here because the open-ended legal provisions on necessity and balance of evils simply reference whatever morality holds to be the correct balance. The issue is when good consequences can (legally and morally) justify the violation of seemingly categorical norms, such as those norms prohibiting killing and torture. The thesis of the chapter is that causation plays a large role in drawing the line of permissible consequentialist justifications in morality and thus, in law. Causation plays this role largely through various iterations of the doctrine of doing and allowing, although intention also plays such a role via the doctrine of double effect.Less
This chapter combines a legal with a moral thesis. Morality is inseparable from law here because the open-ended legal provisions on necessity and balance of evils simply reference whatever morality holds to be the correct balance. The issue is when good consequences can (legally and morally) justify the violation of seemingly categorical norms, such as those norms prohibiting killing and torture. The thesis of the chapter is that causation plays a large role in drawing the line of permissible consequentialist justifications in morality and thus, in law. Causation plays this role largely through various iterations of the doctrine of doing and allowing, although intention also plays such a role via the doctrine of double effect.
Hans Kelsen
- Published in print:
- 1991
- Published Online:
- March 2012
- ISBN:
- 9780198252177
- eISBN:
- 9780191681363
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252177.003.0034
- Subject:
- Law, Philosophy of Law
In the case of a legal order, the wish in question is that of avoiding the evil—punishment or execution of judgment—decreed in the primary norm for the violation of the secondary norm. Thus the ...
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In the case of a legal order, the wish in question is that of avoiding the evil—punishment or execution of judgment—decreed in the primary norm for the violation of the secondary norm. Thus the effectiveness of a norm commanding a certain behaviour is dependent on the effectiveness of the sanction-decreeing norm, the primary norm. This appears to lead to an infinite regress, for in order to guarantee the effectiveness of the primary — sanction-decreeing — norm, further sanctions would have to be decreed as reactions to the violation or observance of this norm. But, in order to be effective, sanction-decreeing norms, unlike other norms, do not need sanctions as reactions to their violation or observance, or need such guarantees to a much lesser degree than other norms which have to command behaviour because this behaviour is, or can be, contrary to the natural inclinations of human beings.Less
In the case of a legal order, the wish in question is that of avoiding the evil—punishment or execution of judgment—decreed in the primary norm for the violation of the secondary norm. Thus the effectiveness of a norm commanding a certain behaviour is dependent on the effectiveness of the sanction-decreeing norm, the primary norm. This appears to lead to an infinite regress, for in order to guarantee the effectiveness of the primary — sanction-decreeing — norm, further sanctions would have to be decreed as reactions to the violation or observance of this norm. But, in order to be effective, sanction-decreeing norms, unlike other norms, do not need sanctions as reactions to their violation or observance, or need such guarantees to a much lesser degree than other norms which have to command behaviour because this behaviour is, or can be, contrary to the natural inclinations of human beings.
Matthew H. Kramer
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199642182
- eISBN:
- 9780191732188
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199642182.003.0006
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
This pivotal chapter makes the positive case for the institution of capital punishment, after the preceding chapters have rejected all the standardly propounded rationales for that institution. The ...
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This pivotal chapter makes the positive case for the institution of capital punishment, after the preceding chapters have rejected all the standardly propounded rationales for that institution. The chapter presents a theory of evil, and it then presents a theory of defilement. It maintains that the continued existence of an especially heinous criminal can defile the whole community in which he or she abides. Capital punishment is salutary -- in a very limited range of cases -- as a means of purging the defilement from the community. Although this purgative rationale for capital punishment is saliently present in the Bible (and also in ancient Greek thought), this chapter's elaboration of it is unremittingly secular.Less
This pivotal chapter makes the positive case for the institution of capital punishment, after the preceding chapters have rejected all the standardly propounded rationales for that institution. The chapter presents a theory of evil, and it then presents a theory of defilement. It maintains that the continued existence of an especially heinous criminal can defile the whole community in which he or she abides. Capital punishment is salutary -- in a very limited range of cases -- as a means of purging the defilement from the community. Although this purgative rationale for capital punishment is saliently present in the Bible (and also in ancient Greek thought), this chapter's elaboration of it is unremittingly secular.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580095
- eISBN:
- 9780191729416
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580095.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter reflects on Francis Bacon's discussion of the causes and (im)plausibility of atheism; on Cicero's assessment of Roman religion; on the history of the phrase ‘public reason’; ...
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This introductory chapter reflects on Francis Bacon's discussion of the causes and (im)plausibility of atheism; on Cicero's assessment of Roman religion; on the history of the phrase ‘public reason’; on the threat of religious wars and civil strife; and above all on the provisional but attractive resolution of the problem of religion and state that has been adopted since the 17th century. This resolution leaves open the question what is to be done about religions that openly and strongly reject it. The section on Bases for Accepting Revelation points to the weakness in Hume's argument against miracles. The section on Conscience and Faith underlines the link between conscience and truth. The section on Controversies stresses the needed reflective equilibrium (not Rawlsian, however) between the givens of revelation and what would be judged reasonable without those givens. In outlining the context of the final chapter, on hell, the Introduction returns to Bacon and the reason why he did not need to pay much attention to the problem of evil.Less
This introductory chapter reflects on Francis Bacon's discussion of the causes and (im)plausibility of atheism; on Cicero's assessment of Roman religion; on the history of the phrase ‘public reason’; on the threat of religious wars and civil strife; and above all on the provisional but attractive resolution of the problem of religion and state that has been adopted since the 17th century. This resolution leaves open the question what is to be done about religions that openly and strongly reject it. The section on Bases for Accepting Revelation points to the weakness in Hume's argument against miracles. The section on Conscience and Faith underlines the link between conscience and truth. The section on Controversies stresses the needed reflective equilibrium (not Rawlsian, however) between the givens of revelation and what would be judged reasonable without those givens. In outlining the context of the final chapter, on hell, the Introduction returns to Bacon and the reason why he did not need to pay much attention to the problem of evil.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580057
- eISBN:
- 9780191729379
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580057.003.0013
- Subject:
- Law, Philosophy of Law
This chapter gives a brief but fundamental discussion of the common thesis (here studied as expounded by Leo Strauss and W. F. R. Hardie) that Aristotle did not acknowledge exceptionless negative ...
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This chapter gives a brief but fundamental discussion of the common thesis (here studied as expounded by Leo Strauss and W. F. R. Hardie) that Aristotle did not acknowledge exceptionless negative moral norms. Marshalling the evidence against this interpretation accompanies a refutation of interpretations of Aquinas that would have him, too, deny the exceptionlessness of all negative moral norms such as those excluding the intended killing of innocents, lying, or adultery. Greater or lesser evil involved in alternative choices cannot be rationally identified prior to moral judgments. Utilitarianism, including its two-level forms (Sidgwick, Hare) analogous to Strauss's ‘Averroism’, is thus not a rational alternative to an ethics which includes absolute respect for basic human goods.Less
This chapter gives a brief but fundamental discussion of the common thesis (here studied as expounded by Leo Strauss and W. F. R. Hardie) that Aristotle did not acknowledge exceptionless negative moral norms. Marshalling the evidence against this interpretation accompanies a refutation of interpretations of Aquinas that would have him, too, deny the exceptionlessness of all negative moral norms such as those excluding the intended killing of innocents, lying, or adultery. Greater or lesser evil involved in alternative choices cannot be rationally identified prior to moral judgments. Utilitarianism, including its two-level forms (Sidgwick, Hare) analogous to Strauss's ‘Averroism’, is thus not a rational alternative to an ethics which includes absolute respect for basic human goods.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580057
- eISBN:
- 9780191729379
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580057.003.0016
- Subject:
- Law, Philosophy of Law
‘Measure’ is highly analogous, and some assertions about incommensurability are unwarranted. Relativist, Kantian, and intuitionist objections to utilitarianism's claims about commensurability are ...
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‘Measure’ is highly analogous, and some assertions about incommensurability are unwarranted. Relativist, Kantian, and intuitionist objections to utilitarianism's claims about commensurability are inadequate, but sound objections remain and are developed in this extended survey of the elements of commensurability and incommensurability in the goods and bads in alternative available courses of action. The survey considers the irreducible distinction between the cultural-technical and the moral domains; the significance of choice as free and as lasting in the acting person's character, the open-ended horizon of individual and social life, and the relevance of risk; the integral directiveness of practical reason's first principles, and the availability of standards for comparing options without impossible commensurations; the rationality of refusing to do evil for the sake of good; and the sub-rational factors involved in applying the rational Golden Rule.Less
‘Measure’ is highly analogous, and some assertions about incommensurability are unwarranted. Relativist, Kantian, and intuitionist objections to utilitarianism's claims about commensurability are inadequate, but sound objections remain and are developed in this extended survey of the elements of commensurability and incommensurability in the goods and bads in alternative available courses of action. The survey considers the irreducible distinction between the cultural-technical and the moral domains; the significance of choice as free and as lasting in the acting person's character, the open-ended horizon of individual and social life, and the relevance of risk; the integral directiveness of practical reason's first principles, and the availability of standards for comparing options without impossible commensurations; the rationality of refusing to do evil for the sake of good; and the sub-rational factors involved in applying the rational Golden Rule.
Marc O. DeGirolami
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199752232
- eISBN:
- 9780199895342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199752232.003.0011
- Subject:
- Law, Criminal Law and Criminology
This chapter explores the relationship of retributivism to “choice of evils” defense: If an actor must either break the law or allow something terrible to happen, the actor who breaks the law may be ...
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This chapter explores the relationship of retributivism to “choice of evils” defense: If an actor must either break the law or allow something terrible to happen, the actor who breaks the law may be justified if the evil he chose outweighs the evil that he prevented. Legal scholars generally consider this to be a clear example of a purely consequentialist calculation. In nearly every jurisdiction, however, an actor who acted with purpose or knowledge in causing the necessity is barred from the defense; this bar has also been rejected as illegitimate by many scholars. The chapter suggests that the connection between retributivism and the choice of evils defense has been overlooked because scholars have focused on this defense as purely consequentialist while marginalizing its retributivist features. More broadly, the chapter argues for a pluralistic understanding of criminal doctrines such as the necessity defense, rather than seeking conceptual purity of theoretical explanation.Less
This chapter explores the relationship of retributivism to “choice of evils” defense: If an actor must either break the law or allow something terrible to happen, the actor who breaks the law may be justified if the evil he chose outweighs the evil that he prevented. Legal scholars generally consider this to be a clear example of a purely consequentialist calculation. In nearly every jurisdiction, however, an actor who acted with purpose or knowledge in causing the necessity is barred from the defense; this bar has also been rejected as illegitimate by many scholars. The chapter suggests that the connection between retributivism and the choice of evils defense has been overlooked because scholars have focused on this defense as purely consequentialist while marginalizing its retributivist features. More broadly, the chapter argues for a pluralistic understanding of criminal doctrines such as the necessity defense, rather than seeking conceptual purity of theoretical explanation.
Charles Sampford
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780198252986
- eISBN:
- 9780191681394
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252986.003.0007
- Subject:
- Law, Philosophy of Law
Two apparent things have emerged in the course of discussing retrospective law making, including the idea that this kind of legislation is widely acceptable and implemented and that, it is a ...
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Two apparent things have emerged in the course of discussing retrospective law making, including the idea that this kind of legislation is widely acceptable and implemented and that, it is a manifestation of an ultimate contradiction against the detrimental notion about retrospectivity. Given the existence of prospective legislation, retroactivity still occupies a significant position in the courts of many nationalities. After such establishment, the next concern is about the determination on when retrospective law is validated. For absolutist critiques, the most convincing justification is to view retrospectivity as a ‘necessary evil’ especially under unusual conditions. Others contest that proper utilization of the concept lead to the endorsement and the realization of values put forward by the legal system. Thus, it is just right to claim that retrospectivity is an innate and a crucial component of a well-organized and a fully established community that operates under the Rule of Law.Less
Two apparent things have emerged in the course of discussing retrospective law making, including the idea that this kind of legislation is widely acceptable and implemented and that, it is a manifestation of an ultimate contradiction against the detrimental notion about retrospectivity. Given the existence of prospective legislation, retroactivity still occupies a significant position in the courts of many nationalities. After such establishment, the next concern is about the determination on when retrospective law is validated. For absolutist critiques, the most convincing justification is to view retrospectivity as a ‘necessary evil’ especially under unusual conditions. Others contest that proper utilization of the concept lead to the endorsement and the realization of values put forward by the legal system. Thus, it is just right to claim that retrospectivity is an innate and a crucial component of a well-organized and a fully established community that operates under the Rule of Law.
