Review of Hannah Maslen: Remorse, Penal Theory and Sentencing

Two Models of Criminal Fault Abstract I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem concerns the over-breadth of recklessness as thus defined—that it covers agents whose actions display different kinds of culpability. The other problem concerns the importance attached to awareness of risk in distinguishing recklessness from (mere) negligence—that one who is unaware of the risk that he takes or creates sometimes displays just the same kind of fault as an advertent risk-taker. We can work towards solutions to these problems by contrasting the Anglo-American schema with the German schema: this distinguishes intention (Vorsatz, consisting in purpose, or knowledge, or ‘dolus eventualis’) from negligence (Fahrlässigkeit, which can be either advertent or inadvertent). Dolus eventualis, properly understood, constitutes a distinctive kind of fault, which should be distinguished from advertent negligence within the category of what the Anglo-American schema counts as recklessness: this helps to solve the first problem, of over-breadth. As for the second problem, we can see why the difference between advertent and inadvertent risk-taking is not always normatively significant by noticing that an agent’s failure to realise the risk he is creating can itself display a significant fault in the structure of the practical reasoning that informs his action—just the same kind of fault as that displayed by an advertent risk-taker. The upshot of this discussion is a new schema of types of criminal fault; I finally note some problems with the practicability of such a new schema.

Shoemaker on Sentiments and Quality of Will Abstract In this comment, I raise a number of concerns about David Shoemaker’s adoption of the quality of will approach in his recent book, Responsibility from the Margins. I am not sure that the quality of will approach is given an adequate grounding that defends it against alternative models of moral responsibility; and it is unclear what the argument is for Shoemaker’s tripartite version of the quality of will approach. One possibility that might fit with Shoemaker’s text is that the tripartite model is meant to be grounded in empirical claims about the structure of encapsulated emotions; but I argue that those empirical claims are not made out, and that regardless it is doubtful whether this is the most helpful model of the emotions to deploy in this context. In contrast, I propose that the quality of will approach is better defended in ethical terms, by reference to the vision of the value of living together as equals (in some sense) that is embodied in P.F. Strawson’s picture of the engaged attitude, and the emotions involved in it.

Can a Woman Rape a Man and Why Does It Matter? Abstract Under current UK legislation, only a man can commit rape. This paper argues that this is an unjustified double standard that reinforces problematic gendered stereotypes about male and female sexuality. I first reject three potential justifications for making penile penetration a condition of rape: (1) it is physically impossible for a woman to rape a man; (2) it is a more serious offence to forcibly penetrate someone than to force them to penetrate you; (3) rape is a gendered crime. I argue that, as these justifications fail, a woman having sex with a man without his consent ought to be considered rape. I then explain some further reasons that this matters. I argue that, not only is it unjust, it is also both a cause and a consequence of harmful stereotypes and prejudices about male and female sexuality: (1) men are ‘always up for sex’; (2) women’s sexual purity is more important than men’s; (3) sex is something men do to women. Therefore, I suggest that, if rape law were made gender neutral, these stereotypes would be undermined and this might make some (albeit small) difference to the problematic ways that sexual relations are sometimes viewed between men and women more generally.

Adil Haque: Law and Morality at War (OUP, 2017)

Amnesty and Mercy Abstract I assess the justification for the granting of amnesty (the exempting of classes of offenders from criminal liability) in the circumstances of ‘transitional justice’ advanced by certain of its supporters according to which this device is morally legitimate because it amounts to an act of mercy. I consider several prominent definitions of ‘mercy’ with a view to determining whether amnesty counts as mercy under each and what follows for its moral status. I argue that amnesty cannot count as mercy under any definition in accordance with which an act or practice’s amounting to mercy lends it justificatory support, while its qualifying as mercy under certain morally neutral definitions provides no basis for considering it justified.

Response to Bennett and Sommers Abstract This paper is a response to Christopher Bennett’s and Tamler Sommers’ critical discussion of my book Responsibility from the Margins.

Strawson, Shoemaker, and the Hubris of Theories Abstract David Shoemaker’s Responsibility from the Margins is chock full of valuable insights on the nature of our responsibility, and it has more in common with P.F. Strawson’s approach in “Freedom and Resentment” than the accounts of most philosophers who call themselves Strawsonians. On one central issue of interpretation, however, Shoemaker gets Strawson wrong. Like many interpreters, Shoemaker sees Strawson as defending a “quality of will” theory of responsibility. This idea fundamentally misunderstands Strawson’s aims in “Freedom and Resentment.” Strawson does not defend a theory of any kind in that essay. On the contrary, Strawson tries to caution his fellow philosophers away from the theorizing impulse. The urge to develop comprehensive theories, he argued, inevitably leads philosophers away from the natural facts about responsibility and the related emotions. So, Strawson offers an alternative way of understanding responsibility, one that takes the facts into account “in all their bearings.” This interpretive disagreement is instructive, I’ll argue, because it illuminates several weaknesses in Shoemaker’s own “tripartite” theory of responsibility. Where his account goes astray can be remedied in large part by embracing the spirit of Strawson’s approach in full.

Beyond Persecutory Impulse and Humanising Trace: On Didier Fassin’s The Will to Punish Abstract This essay argues that Didier Fassin’s ‘The Will to Punish’ (2018) reveals the social grounds for a ‘persecutory impulse’ in modern punishment, which sits alongside a ‘humanising trace’. The challenge for a critical theory of modern penality is to think through this strange combination. The work of Melanie Klein and Freud, properly interpreted, can illuminate its conjunction and disjunction.

Duffing Up the Criminal Law? Abstract R.A. Duff’s The Realm of the Criminal Law advances the literature on criminalization by providing the most thorough exploration and defence yet provided of the intuitively attractive idea that criminalization is properly limited to public wrongs only. I outline here six concerns I have with the view, as presented in this book, and suggest where the account needs further elaboration, defence, or rethinking.