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This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.

This chapter is the first ever comprehensive examination of how fact and law relate to each other in international law. After the critique of doctrinal approaches, the analysis examines how facts aspire producing legal regulation and to what extent they can do so. The analysis covers the relationship between title and effectivites in the law of territory, and the impact of treaties on factual situation. It also examines how rules can make facts relevant, at the example of certain rights under the European Convention on Human Rights and nationality of claims. Separate attention is paid to the notion of ‘effective control’ that has been frequently used in jurisprudence both of ICJ and European Court of Human Rights. Finally, the systemic relevance of facts in the law of treaties and law of State responsibility is examined. The chapter covers the jurisprudence of all major international tribunals, notably ICJ, arbitral tribunals, ECtHR, and WTO dispute settlement bodies.

This chapter focuses on three kinds of moral element found in any criminal offense: (1) mens rea (or omission of mens rea), (2) harmfulness, and (3) moral wrongfulness. This three-part framework is used as an analytical framework for describing white-collar crime's moral complexity.

This chapter offers a ‘normative reconstruction’ of the concept of cheating. It seeks to develop a framework for thinking critically about a paradigmatic concept of cheating; and, if not to reach consensus on every point, then at least to identify those aspects of cheating about which there is likely to be agreement (or disagreement). It shows that there is, in fact, a widely recognized concept of cheating that it is distinguishable — both analytically and expressively — from other forms of moral wrongfulness.

Legal theorists have made significant contributions to our understanding of the concept of promising. But their focus has almost invariably been on the law of contract. In light of the minimal degree of opprobrium that usually attaches to promise-breaking in that context, the idea that such moral wrongfulness might play a role in defining the moral content of crimes seems at first thought improbable. This chapter presents a brief examination of the norm against promise-breaking to explain how it differs from the other norms. It turns out that the moral content of a small but interesting collection of white-collar and regulatory offenses does in fact owe something to the concept of promise-breaking.

Bribery has a claim to being the quintessential white-collar crime: its perpetrators are typically upper-income professionals; it is invariably committed in the context of governmental or commercial activities; its harms are subtle and often attenuated; its victims are difficult to detect; and, often, the only thing that separates bribery from legitimate ‘gifts’ is a hard-to-prove mental element of willfulness or, even more obscurely, ‘corruption’. The potential for moral ambiguity in the crime of bribery is illustrated by the case of House Majority Leader Tom DeLay, who allegedly told Congressman Nick Smith that, in return for his vote for President George W Bush's Medicare bill, they would give his son, Brad, substantial financial and political support in his congressional campaign. The question is: was this bribery or just political log-rolling? This chapter uses this and other problematic cases to analyze two more foundational issues: (1) why is bribery morally wrong?; and (2) where should the outer limits of the offense lie?

There are two essential components in the concept of corrective justice: wrongfulness and responsibility. Only wrongful losses fall within the ambit of corrective justice. Responsibility for them grounds the agent-relative duty to repair. The principle of corrective justice requires a theory of wrongfulness and a theory of responsibility. This chapter develops the relevant conception of wrongfulness and outlines the relevant theory of responsibility.

Chapter 5 analyses the implementation of State responsibility for international terrorism through the adoption of non-military measures aimed at securing a wrongdoing State’s compliance with its secondary obligations of cessation and reparation, in particular the adoption of retorsive measures and countermeasures. It assesses potential problems with the adoption of countermeasures in the terrorism context, including the potential for misevaluating the wrongfulness of a target State’s conduct and continued uncertainty surrounding the legitimacy of collective countermeasures. Finally, Chapter 5 explores the extent to which sub-systems of international law, including diplomatic law and the WTO, affect the right to adopt countermeasures in response to breaches of international terrorism obligations, including the extent to which such sub-system exclude the application of the secondary rules of State responsibility or restrict the scope of their wrongfulness preclusion.

This chapter explores the following questions. Should criminal law norms be relatively general? Or instead should criminal law norms be relatively specific? Recent codification movements tend to simplify offence definitions by limiting the number of harms or wrongs that the criminal law addresses, and also by restricting the number of mens rea categories that are employed for purposes of grading the seriousness of a crime. Does that simplification come at too great a price? At the same time, a more particularist approach increases the chance that criminal law norms will be incommensurable. Is this outcome regrettable, or instead desirable? Finally, what is at stake in the decision whether to have the legal fact-finder employ descriptive or instead explicitly evaluative criteria, as criteria either of mens rea or of actus reus? Are evaluative criteria preferable, simply because criminal law norms depend, to some extent, on moral norms? The chapter takes a non-consequentialist perspective, for the most part, and concentrates on the justification for punishing malum in se rather than malum prohibitum crimes. The focus is not on the narrower (but important) questions of how to distinguish mens rea from actus reus, or culpability from wrongfulness.

In this chapter, the inquiry into the nature of fault in tort law involves an examination of the philosophical foundations of choice, action, and harmful conduct. First to be explored are the broad ideals that give moral character to a person’s actions: freedom, equality, and community or common good. Freedom (or autonomy), equality (in a ‘weak’ form), and community (in the ‘hard’ form of utility) are seen collectively to shape significantly the moral quality of human behavior. After these fundamental values are examined generally, their relative priority is next considered, followed by a discussion of the nature and ordering of the basic interests at stake in tort law. Finally, the chapter focuses briefly on the more specific questions of how the underlying values help define the wrongfulness, first, of intentionally harmful conduct; and second, of conduct that accidentally causes harm.

This chapter examines the delict of loss wrongfully caused (damnum iniuria datum). It pays particular attention to the notions of loss (damnum), wrongfulness (iniuria) and fault (culpa) under the delict, as well as the distinction between the statutory action based on the lex Aquilia and its praetorian extensions, and controversies surrounding the measure of recovery.

Ongoing discussions among international lawyers on defences in state responsibility have close analogies with debates in two other fields: debates in general legal theory on defeasibility in law, and debates in criminal law theory (and philosophy) on the elements of criminal responsibility. The similarities are not surprising. But it is striking how little cross-fertilization there seems to have been. For jurisprudence and criminal law scholars have developed a number of points and distinctions that international law theorists working on defences should find helpful. This chapter illustrates these claims. Section 2 looks at defences from the point of view of general legal theory, and section 3 does the same from the point of view of criminal law theory, recommending specific solutions to particular problems. Section 4 then shows how these contributions can help to answer some persistent questions surrounding defences in the law of state responsibility.

This chapter seeks to clarify the concept of circumstances precluding wrongfulness in international law which, according to Ian Brownlie, is a concept that ‘had never been properly worked out’ by the ILC during its work on the Articles on State Responsibility. Indeed, it is not infrequent to find in the case law and the literature diverse, and often contradicting, explanations of this concept and its effects. Two misunderstandings which are recurrent in international law are especially troubling: (i) the notion that justified conduct is nevertheless a ‘breach’ of international law; and (ii) the qualification of justified conduct as ‘non-wrongful’ or ‘unlawful with precluded wrongfulness’, and variations thereof. The chapter first elucidates the concept of circumstances precluding wrongfulness and its relation with the notions of breach, internationally wrongful act, and excuse. It then considers the operation of these circumstances by means of two different models for the representation of reasoning with justifications: one based on deductive reasoning and the other on dialogic reasoning. The chapter concludes that justified conduct does not constitute a breach of international law and that it must be qualified as lawful.

The purpose of this chapter is, first, to identify seven legal techniques through which certain situations that could otherwise fall within the scope of a rule or a set of rules are excluded from it (scope clauses, carve-outs, flexibilities, derogations, exceptions stricto sensu, excuses, and circumstances precluding wrongfulness) and, secondly, to clarify the implications (technical and practical) of using such techniques and the terminology that comes with them. Using the term ‘exception’ rather than other terms such as ‘carve-out’ or ‘exemption’ may have significant legal implications as regards matters such as (i) the burden of proof, (ii) the interpretative approach, (iii) the degree of deference accorded to a respondent under a provision, or (iv) the interplay with certain referral clauses.

In this chapter, the problematic of exceptions to peremptory norms is investigated in view of the defining feature of jus cogens rules as not admitting of derogation. This problematic appears singularly concerned with exceptions to the prohibition of the use of armed force, since that prohibition is regularly claimed to constitute a peremptory norm but admits of exceptions. Different legal constructions have been proposed to explain why exceptions would not amount to derogation. One construction, logically coherent but not (fully) borne out by positive law, is to see exceptions as limiting and lying outside of the substantive scope of a general rule and thus not amounting to derogation. Another construction concerns the claim that the prohibition of the use of armed force is not a jus cogens rule but rather the prohibition of aggression. As such, exceptions such as self-defence, force pursuant to a Security Council authorization, and consent would not amount to derogation, since they would not entail the commission of aggression. This construction would allow for the conclusion that peremptory prohibitions are absolute in character and not subject to exception or justification. Circumstances precluding wrongfulness, as general exceptions, appear to qualify as derogation, since Article 26 of the Articles on the Responsibility of States bars their invocation when conduct would be contrary to a peremptory norm. Finally, a narrow interpretation of the word derogation, as being involved only when states attempt to legalize or justify conduct in relation to already existing, concrete circumstances, could also explain why exceptions to peremptory prohibitions may be considered admissible.

This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.

Personal inviolability is one of the oldest rights of diplomatic agents and is often considered to be at the root of diplomatic immunity. The wording it received in the Vienna Convention does not allow for any exceptions. But the absolute nature of the right can lead to difficulties—especially in situations in which diplomats themselves cause a danger to the general public or particular individuals. This chapter explores potential inroads under international law into the concept of inviolability and thus discusses the applicability of self-defence, necessity, and distress in situations of emergency. It also raises the question whether the human right to life imposes certain obligations on the receiving State which are capable of limiting diplomatic inviolability. In a concluding section, the chapter reflects on the justifications which are particularly likely to carry validity in situations marked by a need to deal with dangers arising from diplomatic actions.

This chapter explores the defence tools that a host state can use against conflict-related investment claims. The first part analyses security exceptions which have been introduced to investment protection law after the Second World War. While it is widely believed that such exceptions provide for the most persuasive safeguard of the state’s security interests, it is argued that their effectiveness will depend on the wording of the provision, determining their scope, the degree of autonomy given to a state in responding to a security threat, and their relationship with other treaty provisions. The chapter addresses these aspects. The second part focuses on the defences in the general law of state responsibility (necessity, force majeure, and countermeasures), explaining why their potential as a defence is limited.