Thu, 19 Jan: no meeting this week
Thu, 26 Jan
War crime and the failure of law: Arendt, Jaspers and the ontology of guilt
Edmund Davies Professor of Criminal Law and Justice, King's College,
What happens to guilt when a whole community thinks that the palpably wrong is acceptable? This was the problem Hannah Arendt found in judging Eichmann to be responsible for his crimes. It is also a problem in other war crimes trials, where the 'tu quoque' argument is used to attack the prosecuting authorities for their own dirty hands or selectivity in prosecutions. Jaspers's essay on German guilt also shares something of this problem, but there is a way of reading Jaspers against the grain of his own argument to a more fruitful conclusion. In so doing, meta-ethical questions about the nature of moral judgment are raised.
Thu, 2 Feb
Raz on Detachment and Describability [download paper]
Assistant Professor of Philosophy,
Indiana University, and H.L.A. Hart Visiting Fellow at CEPL Oxford
In a previous paper, I argued (partly following Raz) that Hart offered in The Concept of Law and elsewhere a noncognitivist or expressivist analysis of internal legal statements. This paper attempts to defend Hart’s conception of the legal discourse by responding to two lines of criticism that Raz has devised. First, Raz has argued that Hart’s analysis fails to account for what Raz calls “detached legal statements”. Second, Raz has argued that Hart is wrong to assume that normative practices, including legal practices, can be characterized satisfactorily by deploying only descriptive statements. In response, I argue that Hart has resources to account for detached internal legal statements, and that Raz’s arguments against the describability of legal practices are inconclusive.
Thu, 9 Feb
Restitution Without Corrective Justice [download paper]
Mansfield College, Oxford
In recent times it has become increasingly popular for unjust enrichment lawyers to morally justify the law of unjust enrichment in terms of corrective justice. In my paper, I argue that they are making a mistake. This is because corrective justice cannot justify what is generally regarded to be unjust enrichment’s core case: the mistaken payment. In light of this I argue that there are good reasons for unjust enrichment lawyers to drop corrective justice altogether as a moral justification for the law of unjust enrichment.
Thu, 16 Feb
Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context [download paper]
Balliol College, Oxford
In US vs. Shonubi, the prosecution relied on impressively accurate statistics to prove the amount of drugs Shonubi carried. However, the appellate court quashed the sentence because it was not based on “specific” evidence.
But is there any real difference between statistical and individualistic evidence or is it merely a matter of presentation? And even if this difference is real, why should it matter for the criminal context?
In this paper, I argue that there is a real difference in quality. While the mainstream holds that “all evidence is probabilistic in a sense”, I argue that it is not in the same sense. There are different kinds of uncertainty involved and each is irreducible to the other.
I then argue that this qualitative difference has important implications for the criminal context. The debate about the usage of statistical evidence in criminal courts is in fact about the proper balance between two principles in tension: accuracy and personal responsibility. I then suggest a procedure that mitigates between them.
I take my theory to practice, and analyse three real cases, through which I deal with three residuals issues: statistical evidence used for non-convicting purposes, DNA evidence, and statistical evidence submitted by the defence.
Thu, 23 Feb: no meeting this week
Thu, 2 Mar
Reasons to Justify Rights [download paper]
Juan Cruz Parcero
Mexico, Visiting Researcher, Oxford
This presentation aims to give a general picture of the role of rights in practical reasoning. I begin by reviewing some of Joseph Raz's central ideas: that rights are intermediate conclusions in practical reasoning; that they are grounds of duties; and that some rights justify other rights. I then propose an analysis of the reasons that justify rights and the relations between them. I will consider two main kinds of reasons discussed by Raz: individual self interest and general or common interest. This is an introductory (and unfinished) work that identifies central issues but also points to remaining challenges in the understanding of rights.
Thu, 9 Mar
Against Prediction: Punishing and Policing in an Actuarial Age [download paper]
In 1933, the state of
decided to hire its first prison actuary to predict the probability of each inmate’s success or failure on parole. Today, actuarial methods permeate the field of crime and punishment—from the drug-courier profile and IRS fraud algorithms to predictions of future dangerousness, violent sexual predator statutes, parole-failure probability tests, and racial profiling. We have come to embrace the use of group statistics to administer individual justice. Illinois
This text challenges the actuarial turn in crime and punishment. It sets forth three compelling reasons why we should be skeptical about—rather than embrace—the new actuarial paradigm. First, the reliance on predictions of future offending may be counterproductive to the primary goal of law enforcement. The use of group statistics may actually increase the overall amount of crime in society. Second, the reliance on probabilistic methods produces a distortion of the carceral population—a dissymmetry between the distribution of actual offenders and of persons who have contact with the criminal justice system—which can have devastating consequences on the subjects of profiling. Third, the proliferation of actuarial methods biases our conception of justice. It has begun to reshape and distort the way we think about just punishment.
Instead of embracing actuarial justice, we should turn instead to randomization. Randomness in the policing context is simple: law enforcement could use a lottery system for IRS audits, random selection for airport screening, or numerical sequencing for consensual car searches on the highway. In the sentencing area, randomness means something quite different, but no less straightforward: it means imposing a sentence based on a proper metric and then avoiding the effect of prediction by eliminating parole or other devices that are prediction-based. In criminal law and enforcement, the presumption should be against prediction.