The DOI matches its Crossref record; 6 of the 9 references it cites were found in a registry or an index; none of the 43 sources its claims cite is checked for support yet.
Normative Gaps in the Criminal Law: A Reasons Theory of Wrongdoing
Open accessAbstract
In this article it is argued that in two controversial homicide cases—severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area—it is permissible to kill innocent human beings without having to establish the existence of a claim of justification such as selfdefense or choice of evils. Even though criminal law scholars consider that unjustified conduct is always wrongful, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing. This "normative gap defense," which negates wrongdoing without justifying the conduct, is the best way to deal with the troubling homicide cases described above. The normative gap defense is grounded on what is called a "reasons" theory of wrongdoing. According to this theory, the state cannot legitimately prohibit conduct when, in light of the fact that there are powerful utilitarian reasons in favor of performing the act and commanding deontological reasons against performing it, we are in a state of equipoise in which it is impossible for us to determine which course of action is "the right thing to do" (i.e., justified). Under these circumstances, the conduct should be regarded as non—wrongful even though it is unjustified.
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Claims the paper makes
0 Valid · 4 Not valid · 36 Not checked · 91 Own results and interpretations
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“none of the three traditional categories can satisfactorily explain why their conduct is not wrongful.”
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: unclear — It is unclear why the paper says it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Even though criminal law scholars consider that unjustified conduct is always wrongful, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing.”
plainn = 2- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Under these circumstances, the conduct should be regarded as non-wrongful even though it is unjustified.”
plainn = 2- Asserted: passes — The authors put it forward as true.
- Checkable: unclear — It is unclear whether it could be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In this article it is argued that in two controversial homicide cases-severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area-it is permissible to kill innocent human beings without having to establish the existence of a claim of justification such as selfdefense or choice of evils.”
plainn = 2- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“According to the reasons theory of wrongdoing, the fact that it is impossible for society to choose between these conflicting reasons for action appears as a sufficient basis for not prohibiting the conduct even though it does not provide a proper foundation for justifying the act.”
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
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Self-check
Percentages, sums and reported differences re-computed from the paper’s own numbers.
Each contradiction between two passages listed here was confirmed by an independent check.
Rated minor: it would not touch a result — a value no result rests on, a p-value that stays on the same side of the significance level, or a conflict that is clerical, resolved elsewhere in the paper, or outside its own findings.
In the paper
§ B. About the Meaning of "Offense"
“Therefore, societal expectations that norms will be followed are still disturbed by Bill's conduct.Punishment can be coherently imposed for his norm violation in an attempt to reinforce the societal expectations that were shattered by Bill's wrongful conduct.”
§ B. About the Meaning of "Offense"
“Suppose, for example, that Allan, a deranged lunatic, kills Bill believing him to be the devil.Allan's conduct clearly violates the norm against homicide.”
Rated minor: it would not touch a result — a value no result rests on, a p-value that stays on the same side of the significance level, or a conflict that is clerical, resolved elsewhere in the paper, or outside its own findings.
In the paper
§ N O R M AT I V E G A P S I N T H E C R I M I N
“One can now see why it is different saying that "la pena se impone por" (punishment is imposed for) than saying "la pena se impone para" (punishment is imposed to).While the latter question seeks a causal explanation that points towards the event that triggered the imposition of punishment, the former query is driven by a desire to discover the aim that motivates the imposition of punishment.”
§ N O R M AT I V E G A P S I N T H E C R I M I N
“In sum, "por," in this context, is backwards looking while "para" is forwards looking.”
Citations
Cites
Commentaries on the Laws of England
S., L. B., Blackstone, W., & Jones, C. (1917) · University of Pennsylvania Law Review and American Law Register · doi:10.2307/3314547 · Cited by 402
The Individualization of Excusing Conditions
Fletcher, G. P. (1974) · bepress Legal Repository · Cited by 53
Green, S. P. (1997) · SSRN Electronic Journal · Cited by 45
Toward a Constitutional Law of Crime and Punishment
Dubber, M. D. (2004) · bepress Legal Repository · Cited by 24
Gardner, J. F. (2007) · Oxford University Press eBooks · doi:10.1093/acprof:oso/9780199239351.003.0005 · Cited by 10
The Capital Punishment Exception: A Case for Constitutionalizing the Substantive Criminal Law
Suleiman, D. (2004) · Columbia Law Review · doi:10.2307/4099300 · Cited by 1
Research works printed but not linked: 2
- [29]29. Hastings L.J. 509, 514 (2004).
- [33]33. Kenneth Campbell, Offence and Defence, in Criminal Law and Justice: Essays from the W.G. Hart Workshops, 1986 at 73 (I.H. Dennis ed., 1987). His theory is based on Joseph Raz's theory of norms. See Joseph Raz, Practical Reason and Norms (1999). Whether the reasons to be taken into account are "objective" or "subjective," "guiding" or "explanatory" is something better left for a future occasion. Suffice it to say that there is a fair amount of scholarly literature on this subject. See, e.g., Paul H. Robinson, A Theory of Justification: Societal Harm As a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 266 (1975);
Cited by
Chiesa, L. E. (2013) · Revista Brasileira de Direito Animal · doi:10.9771/rbda.v8i13.8634 · Cited by 1
Self-citationImputation System for Negligence Crime Involving AI
Zhao, S. (2024) · Artificial intelligence and the rule of law · doi:10.1007/978-981-97-0722-5_3
Justifications and Rights-Displacements
Dsouza, M. (2023) · Criminal Law and Philosophy · doi:10.1007/s11572-023-09696-2
Murder and the Defence of NecessityPreprint
Pascoe, D. (2008) · SSRN Electronic Journal · doi:10.2139/ssrn.1129090
Metadata
- Authors
- Aponte, L. E. C.
- Venue
- New Criminal Law Review
- Publisher
- University of California Press
- Published
- 2007-01-01
- Volume
- 10
- Issue
- 1
- Pages
- 102-141
- ISSN
- 1933-4192 (ISSN-L)
- 1933-4206
- OpenAlex
- W2134225993
- Cited by
- 4
- References
- 9
- Citations by year
- 2024: 1 · 2023: 1 · 2013: 1
- FWCI
- 1.13
- Type
- journal article
- Language
- en
- Open access
- bronze
- doi.org
- Locations
- New Criminal Law Review (publishedVersion)
- eYLS (Yale Law School) (submittedVersion)
- bepress Legal Repository (submittedVersion)
- DigitalCommons@Pace (Pace University) (submittedVersion)
- Topics
- Social Sciences › Law › Criminal Law and Policy
- Social Sciences › Arts and Humanities › Philosophy › Philosophical Ethics and Theory
- Social Sciences › Law › Criminal Law and Evidence
- Keywords
- justification defenses, homicide, self-defense, criminal law
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Contains information from the Semantic Scholar Academic Graph Datasets, made available under the ODC Attribution License (ODC-BY 1.0).
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