Sub-Optimal Justification and Justificatory Defenses

Segev, Re’em

doi:10.1007/s11572-009-9086-5

Cited by 3 publications

(1 citation statement)

References 32 publications

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“…Now consider a similar argument for partial justificatory defenses 49 : 48 This claim goes beyond the very common claim that the criminal law should not apply to actions that are morally permissible (see Section 3 for the latter claim). 49 For arguments in this spirit, see Husak 1998;Segev 2010;Kolber 2016: 870-872. These arguments are different from the arguments that I have in mind in several respects.…”

Section: An Example: Partial Defensesmentioning

confidence: 99%

Continuity in Morality and Law

Segev

2021

Theoretical Inquiries in Law

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According to an influential and intuitively appealing argument (the Continuity Argument), (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when the action is reasonable (as positive law sometimes does). In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous.

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Section: An Example: Partial Defensesmentioning

confidence: 99%

Continuity in Morality and Law

Segev

2021

Theoretical Inquiries in Law

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Should Law track Morality?

Segev¹

2017

Criminal Justice Ethics

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Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status -a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law.

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Moral rightness and the significance of law: Why, how, and when mistake of law matters

Segev¹

2014

University of Toronto Law Journal

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The question of whether a mistake of law should negate or mitigate criminal liability is commonly considered to be pertinent to the culpability of the agent, often examined in light of the (epistemic) reasonableness of the mistake. I argue that this view disregards an important aspect of this question; namely, whether a mistake of law affects the rightness of the action, particularly in light of the moral significance of the mistake. I argue that several plausible premises regarding moral rightness under uncertainty, the nature of law, and the moral significance of law entail a positive answer to this question. Specifically, I consider this argument: (1) one (subjective) sense of moral rightness depends on the (epistemically justified) belief of the agent concerning a non-moral fact that is morally significant; (2) a law is (partly) a non-moral fact; (3) a legal fact might be morally significant; (4) therefore, an action that is compatible with an applicable moral standard, in light of the mistaken (justified) belief of the agent concerning a morally significant law, is (subjectively) right or less wrongful; (5) the (subjective) moral rightness of an action counts against criminal liability for this action; (6) therefore, an action that is compatible with the applicable moral standard, in light of the mistaken (epistemically justified) belief of the agent, counts against criminal liability for the action if the law is morally significant.

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Sub-Optimal Justification and Justificatory Defenses

Cited by 3 publications

References 32 publications

Continuity in Morality and Law

Continuity in Morality and Law

Should Law track Morality?

Moral rightness and the significance of law: Why, how, and when mistake of law matters

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