Moral Credibility Research Articles

The Instrumental Justice of Private Law

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called justice. I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids these problems by combining the best elements of both perspectives. This composite theory acknowledges the inherent instrumental nature of private law, but establishes justice as its central, organizing idea. So framed, instrumental justice's primary function is to create rights that serve as tools for marking and mapping important interests, and for defending and vindicating those interests when they are threatened or impaired. Rights, in turn, both imbue the law with the moral credibility necessary to perform secondary social functions, and prevent it from pursuing these functions at the expense of its core principles.

Harnessing Local Variations in Federal Sentencing to Increase the System's Moral Credibility

Harnessing Local Variations in Federal Sentencing to Increase the System's Moral Credibility

Weapons of Mass Destruction: The Fear and Legacy

Nuclear weapons are the archetypal weapons of mass destruction (WMDs). Made infamous during World War II and by movies such as The Sum of All Fears (Paramount Pictures, 2002), these weapons explode above or on the ground, causing damage arising from contact with displaced objects, followed by a fireball, concussion, and fallout. The 2 bombs dropped on Nagasaki and Hiroshima, Japan, during World War II killed well over 100000 people. Today’s nuclear weapons are much more destructive. Also, so-called “dirty” bombs, which use conventional weapons to explode nuclear materials, would make an area uninhabitable, at least temporarily. Another type of WMD—chemical weapons—are derivatives of pesticides, designed to eradicate humans. The two most prevalent forms are “nerve” and “mustard” gases. When inhaled, nerve gas causes failure of the central nervous system. Mustard gas produces blisters, which can be fatal if they reach the respiratory system. Made infamous by the Japanese subway attack, by the Iraq–Iran war, and by the movie The Rock (Don Simpson/Jerry Bruckheimer Films and Hollywood Pictures, 1996), chemical weapons can be brutally effective killers if delivered in a crowded place with limited ventilation. Anthrax, smallpox, typhoid, and various other organisms can be lethal and infectious biological weapons. In the worst case, as illustrated by the movie Outbreak (Punch Productions, Inc, and Warner Brothers Pictures, 1995), the successful delivery of a biological weapon could result in a 21st-century plague. Three articles in this issue (Levy and Sidel, Chess and Clarke, and Ziskin and Harris) describe the horrific potential impacts of WMDs and the capacity of the human race to respond to them. The destructive capacity of WMDs is undeniable, but the destruction starts before a WMD is released and does not end after the obvious damage has been managed. This issue also presents 4 articles that pinpoint different parts of the life cycle of developing, testing, using, and managing WMDs. The wellbeing of uranium miners (Brugge et al.), nuclear waste management workers who may be at higher risk because they work for subcontractors (Gochfeld and Moor), residents who live near weapons storage facilities (Williams and Magsumbol), and ecology systems (Burger) are imperiled by WMDs. See Morrison’s article discusses mechanical engineer Richard Magee, who is intimately familiar with the efforts of the United States and other nations to reduce chemical weapons stockpiles. Magee headed a National Academy of Sciences panel that advised the US Department of Defense about the destruction of the US chemical weapons stockpile and he was in Iraq soon after the first Gulf War advising the Iraqis about the destruction of their chemical warfare agents. His story shows that dedicated people can reduce the stockpile of these horrible weapons. The images of mushroom clouds and of people dead after being gassed and after inhaling biological agents are vivid and indelible; they will not fade away. No one knows how much success humanity will have controlling the spread of nuclear weapons. The United States will come close or have all of its chemical weapons stockpile destroyed by 2015. Although its policy is not to use chemical or biological weapons, will other nations and groups refrain from building, buying, or stealing nuclear, chemical, and biological weapons? We can only hope so. Meanwhile, the massive legacy of the WMD past continues to place people at risk and cost billions of dollars a year to manage. The United States and Russia, in particular, must commit to in-perpetuity management of a legacy that has already cost so much in lives, environmental destruction, property damage, and moral credibility.

Civilian Legacies of Army Health

understanding of the futility of aggressive conflict may reduce the risk of war in the future; and that an analysis of the consequences of conflict may lead to ways in which its benefits can be achieved by other means. A historical audit of warfare assesses both its credits and debits. To many, the immediate debits of armed conflict are self-evident, especially for the vanquished. However, for both victor and vanquished, any twenty-first century audit must include such long-term legacies as post-traumatic stress disorder (PTSD),2 intergenerational psychopathology and life-long disasters ranging from the loss of international moral credibility, when the Laws of War are violated,3 to personal and community tragedies such as the recruitment and use of child soldiers.4 On the credit side of the ledger, specifically in the medical context, I have chosen to classify the beneficial civilian legacies of war into two groups. The first encompasses specific technical advances, many of which would have accrued independently in the inexorable progress of science but were undoubtedly hastened by the exigencies of war and the survival demands of national security. The second comprises what I have called 'health system advances'separadigm shifts in the way civilian society is ordered and organisedaewhich have been engendered by armed conflict or its threat. The subject of the beneficial civilian legacies of armed conflict is not new. In 1878, the British Surgeon-General, Sir George Evatt, wrote that the congruence of Mars and Salus, the god of war and the goddess of health, has resulted in: 'a powerful unification... the combining of the learning and skill of the physician with the organisation, the discipline and the order of the soldier'.5 This theme has been touched upon in the clinical context of Australian medicine with the publication in the first half of the twentieth century of a range of essays bearing titles such as: 'On the Interaction between the War, the Profession of Medicine and the Practitioner';6 'What Medicine Owes to War and War Owes

The Utility of Desert

The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real power to gain compliance with society's rules of prescribed conduct lies not in the threat or reality of official criminal sanction, but in the power of the intertwined forces of social and individual moral control. The networks of interpersonal relationships in which people find themselves, the social norms and prohibitions shared among those relationships and transmitted through those social networks, and the internalized representations of those norms and moral precepts are what cause people to obey the law. The law is not irrelevant to these social and personal forces. Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms. In fact, in a society as diverse as ours, the criminal law may be the only society-wide mechanism that transcends cultural and ethnic differences. Thus, the criminal law's most important real world effect may be its ability to assist in the building, shaping, and maintaining of these norms and moral principles. It can contribute to and harness the compliance-producing power of interpersonal relationships and personal morality. The criminal law can have a second effect in gaining compliance with its commands. If it earns a reputation as a reliable statement of what the community, given sufficient information and time to reflect, would perceive as condemnable, people are more likely to defer to its commands as morally authoritative and as appropriate to follow in those borderline cases where the propriety of certain conduct is unsettled or ambiguous in the mind of the actor. The extent of the criminal law's effectiveness in both these respects - in facilitating and communicating societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority - is to a great extent dependent on the degree of moral credibility that the criminal law has achieved in the minds of the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as doing justice, that is, if it assigns liability and punishment in ways that the community perceives as consistent with the community's principles of appropriate liability and punishment. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.

Why Does the Criminal Law Care What the Lay Person Thinks Is Just? Coercive versus Normative Crime Control

The criminal law codification movement of the 1960's and 70's was guided by instrumentalist principles designed to reduce crime, rather than retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's dominant theme is the prevention of offenses and its major goal is to forbid and prevent conduct that threatens substantial harm . . . . Yet, as Part I of this article shows, even from such a staunchly instrumentalist code came a criminal law that defers to lay persons' shared intuitions of justice on a vast number of issues touching essentially all criminal cases. Why should this be so? Lay intuitions of justice hardly produce a distribution of criminal liability that maximizes deterrence, incapacitation, or rehabilitation, the traditional crime control mechanisms. In fact, as Part I makes clear, reliance upon lay intuitions of justice commonly undermines the operation of these mechanisms. Why, then, should modern American code drafters follow an unspoken principle of heeding lay intuitions of justice? One explanation is that the drafters have an unexposed retributivist streak, that they have retained the natural impulse of most lay persons to think of criminal liability in terms of desert. If this were the case, the drafters' focus on instrumentalist arguments in explaining and justifying their code provisions would seem less than forthright. But there is another explanation, in which the drafters' concern for lay intuitions of justice is justified by an instrumentalist rather than retributivist rationale: They may have believed that effective crime control requires a criminal code that is seen as adhering to the community's shared perceptions of just desert. While the Model Penal Code drafters offer no defense of this position -- indeed, the principle itself is unarticulated by the drafters, even as they seem to follow it -- Parts III and IV offer arguments in its support. It is argued there that the perception of a criminal code as doing justice is necessary for the code's moral credibility, which in turn is necessary for the effective crime control that the drafters seek. It is necessary because the extent of criminal law's moral authority determines the extent of its ability to influence people's conduct through normative forces and to shape community norms. Such use of a criminal code's normative powers represents a qualitatively different crime control strategy than the traditional mechanisms of deterrence, incapacitation, and rehabilitation. The latter might be called coercive crime control. They seek to prevent criminal conduct through coercive official action, most commonly in the form of threat or restraint. The crime control power of criminal law's moral credibility works in a different way. The normative crime control mechanism, as it might be called, does not shape desires by threat of official sanction, as deterrence does, or through a coercive regime of official therapy or treatment, as traditional rehabilitation does. Nor does it simply give up on altering desire and simply detain, incapacitate. Instead, it works through unofficial avenues to bring the potential offender to see the prohibited conduct as unattractive because inconsistent with the norms of family or friends and, ultimately, unattractive because inconsistent with the person's own internalized sense of what is acceptable. Not every potential offender is amenable to this normative pressure, but many if not most non-offenders may be non-offenders because of it. Thus, code drafters must worry not only about controlling the hardest core amorals among us but also must maintain the criminal law's influence in keeping law-abiding that vast proportion of the population for which normative crime control is important, perhaps more important than the coercive. The end result of such concerns for law makers, as we shall see, is a system that may be highly instrumentalist in orientation but does not stray far from lay intuitions of justice. And, when it does stray, it does so in a way that obscures the deviation. The proposed answer to the title question, then, is that the criminal law, even a highly instrumentalist one, cares about lay persons' intuitions of justice because criminal law's power to influence conduct may reside in large part in its normative rather than its coercive crime control mechanisms, and effective normative crime control requires a criminal law that has moral credibility within the community it governs. The article is being prepared for an Olin conference at the University of Virginia Law School in February, 2000, on the role of law in shaping social norms.

"Do Ourselves Credit and Render a Lasting Service to Mankind": British Moral Prestige, Humanitarian Intervention, and the Barbary Pirates

This paper raises the issue of moral credibility in international relations and shows that considerations of preserving moral prestige can become crucial for armed humanitarian intervention. It contrasts realist and constructivist explanations about the causes of humanitarian intervention and demonstrates that traditional accounts do not provide a complete understanding of the phenomenon of intervention. In the case studied here, Britain engaged in a relatively costly humanitarian intervention against the Barbary pirates, slave trade in Christian Europeans due to her willingness to defy moral criticism and exhibit consistency with her professed moral principles. No material incentives and/or constraints influenced the British decision, and neither was it affected by a sense of felling, with regard to the Christian slaves. Instead, allegations that Britain urged Europe to abolish the black slave trade out of selfish interests, while at the same time turning a blind eye toward the Christian slave trade of the pirates, undermined British moral prestige and became the cause of the Barbary expedition.

Reforming the Federal Criminal Code and The Model Penal Code: A Top Ten List

This article suggests ten changes that ought to be included in a reform of federal criminal law. Five of those are what would be considered basic characteristics of any modern criminal code, and are in large part the earmarks of the Model Penal Code and its progeny: a comprehensive general part, an analytic structure, fully defined offenses using defined terms, a system for the interpretation of code provisions, and a system of offenses that avoids overlaps and gaps. While the Model Penal Code made many advances, the 35 years since its promulgation have revealed shortcomings, and suggest a number of other reforms that a new federal criminal code might profitably adopt. Least controversial is fixing the revealed drafting errors of the Model Penal Code. The article gives two examples of such errors, one technical, one conceptual: failure to define the distinction among conduct, circumstance, and result elements, and confusion in the definition of causation requirements. Other proposed reforms move beyond the perspective of the Model Penal Code drafters, and take account of the last decade's movement toward greater guidance of judges' sentencing discretion. Consistent with that trend, a new code should use more grading categories, in order to have the liability determination under the criminal code more narrowly constraint the range of possible sentences at the sentencing stage. Also consistent with the recent trend, in its ideal if not its practice, is the proposal that code drafters follow an articulated distributive principle to develop statutory formulations and to define the rules by which the code provisions are to be interpreted. Still more distant from the approach of the Model Penal Code are the final two proposals. First, it is suggested that a new code be drafted in a way that avoids conflicts with the community's perceptions of desert, for this is necessary to enhance the code's moral credibility with the community it governs, which in turn is necessary to increase the code's power to gain compliance by that community. Finally, in a proposal that would make criminal codes look very different than they currently do, the article suggests that a new criminal code be drafted as two codes: one addressed to the general public defining for them ex ante the rules of lawful conduct, the other written for criminal justice adjudicators -- judges, lawyers, police officials, and juries -- that sets principles for ex post adjudication of a violation of the rules of conduct. It is only through this separation, it is argued, that codes can effectively perform both of the two central functions of a criminal code: communicating to the public ex ante the rules of lawful conduct, and defining for adjudicators the principles governing ex post adjudication of a violation.

The A.L.I.'s Proposed Distributive Principle of 'Limiting Retributivism': Does It Mean In Practice Anything Other Than Pure Desert?

Robinson supports the proposed purposes text of the New American Law Institute Report on Sentencing Reform but argues that in practice it will not mean what traditional utilitarians, like those supporting limiting retributivism, are expecting. First, the proposed text allows reliance upon non-desert distributive principles only to the extent that they serve their stated goals. As the ALI Report concedes, there are limits to the effectiveness one can expect from rehabilitation and, as is now becoming apparent from social science research, our realistic expectations for the effectiveness of deterrence are similarly fading. It is true that incapacitation undoubtedly works to prevent future crime and there is increasing evidence that restorative processes can be effective in achieving their goal, but following these distributive principles can have crime prevention costs (which the text's proposed distributive principle would not seem to allow to be taken into account). For example, most importantly, reliance upon these principles can undercut the criminal law's moral credibility and, thereby, its power to gain compliance by harnessing social norms. Second, the greatest constraint on the influence of the enumerated non-desert purposes is the proposed principle's demand that no distribution can conflict with the demands of desert. Contrary to the assumption of the original advocates of limiting retributivism that desert provides only vague outer limits on punishment, desert has quite specific demands, driven in large part by the demand of ordinal ranking: that a case of greater blameworthiness receive greater punishment than a case of comparatively less blameworthiness. Given the limited range of punishments a liberal democracy ought to be willing to inflict, distinguishing cases of distinguishable blameworthiness means that the deserved punishment will fall within a narrow range on the punishment continuum (a result consistent with what social scientists are lately learning about the rather sophisticated intuitions of justice shared by laypersons). In closing, Robinson offers brief remarks addressed to those who oppose a desert distribution, of which he suggests there are two sorts: those who have an erroneous of what desert means, and those who think avoiding crime is more important than doing justice. To the first group, he simply sketches the current consensus view of constitutes the modern conception of desert. To the second group, he argues that a desert distribution may well be the most effective in avoiding future crime, once one takes into account the crimogenic effect of nondesert distributions, when the community comes to understand that the criminal justice system is not in fact in the business of doing justice. In any case, he argues that in the absence of sufficient data to reliably answer the empirical question as to which distribution would best reduce crime, we ought to do at least what we know we can do: do justice.

Between Intellectual Responsibility and Political Commodification of Knowledge: Nigeria's Academic Political Scientists under the Babangida Military Junta, 1985–1993

Abstract:The academic political scientists—mainly professors—who were hired by the Babangida military government in Nigeria between 1985 and 1993, ostensibly to theorize and articulate a new political culture and morality through the political transition program (PTP), have been objects, both then and ever since, of serious criticism concerning their role and contribution to a program that promised much but delivered little or nothing. The major criticism is that the political scientists, despite an initial commitment to help the military fashion a new political order, lost their “science” by providing an intellectual cover for the general's schemes and enriched the “political,” including the politics of corruption and self-enrichment. We examine this critique and show that these individuals, by choosing to remain in office—if not in power—even after witnessing so many broken promises by the regime, tarnished their intellectual integrity and moral credibility. Appointed to serve as an instrument of legitimization for the regime, they contained, constricted, and shrank the political and intellectual space rather than facilitating intellectual and democratic empowerment.

`Being Yourself': The Pursuit of Authentic Celebrity

This article examines some dimensions of the construction of contemporary celebrity. It looks at issues of image management, where the concern is to link the performance of celebrity to certain kinds of moral credibility, where the performance might be seen as `authentic'. These issues are examined in relation to the career of Geri Halliwell, in her attempts to reconstruct her celebrity image following her departure from the Spice Girls. Specifically, it examines her performance in the documentary film Geri (1999) made by Molly Dineen. The focus is on the kinds of talk Geri produces in this context, and in particular the footings she employs as she constructs a persona which combines a public identity (as UN `ambassador') with an authored `ordinary' self. Some wider questions are raised about the apparent proliferation of celebrity attachments to `good causes' of various kinds in the global media culture.

Creating Transnational Solidarity: The Use of Narrative in the U.S.-Central America Peace Movement

As social problems become increasingly global, activists are working across state boundaries and forming transnational social movements. However, there is little information that illuminates how groups are able to overcome ethnic, class, ideological and cultural differences that could be obstacles to collaboration. Through an analysis of the story of Salvadoran martyr Archbishop Romero, I demonstrate how this narrative fostered solidarity between the progressive Central American church and U.S. Christians. By symbolically mirroring the social ontology of Christianity and melodramatically presenting the Salvadoran conflict with moral clarity, Romero's life story facilitated the construction of a transnational collective identity and provided a model of action. The moral credibility of the narrators, and the context in which Romero's story was told, influenced many Christians' decision to prioritize this religious identity over their national allegiance.

“Hear an indian sister’s plea”

Abstract The mission work done by British women missionaries is a fruitful area of study—and an important part of that study is an examination of the ways in which that work was reported to the British public “at home,” in order to stir up interest and gain funding and recruits thereby. This reporting was not done via official reports so much as by accessing mass audiences through the various channels of popular culture, including letters, but also reports and stories in periodicals and tracts or pamphlets, hagiographic biographies, and even fiction. The work of missionary women was explained and justified through such popular reporting, and it was one way for women to take an active role in the maintenance of empire. A major feature in this exercise was the presentation of the various “native” populations, the potential converts, that missionary women worked among. Considerable space was devoted to describing racial and gender characteristics in general, and to delineating the various individuals—especially those “elevated” above the limitations of their racial and gender stereotype by conversion to Christianity. As with the reports from male missionaries, such writing was considered to have authority based on experience and moral credibility. Consequently, through these written reports, and their accompanying illustrations, cultural stereotypes were reinforced and made “coherent”; something that also had considerable implications for the establishing of white/British female “superiority.”

Too Many Black Men: The Sentencing Judge's Dilemma

Legal reform sometimes has unanticipated, even ironic, results. A good example is federal legislation adopted in the 1980s that was supposed to enhance equity in sentencing. Congress, like many state legislatures in this period, reduced judicial control over sentencing by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reformers did succeed in reducing judicial discretion in the sentencing process, but racial disparities have gotten much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms. The situation leaves trial judges in a difficult position. They are legally bound to implement a sentencing regime that many of them believe is racially discriminatory. Herbert Jacob's work on criminal trial courts provides a framework for investigating this problem. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. Nevertheless, some judges have criticized the racial implications of the sentencing law, protesting in various, resourceful ways. Judicial resistance to a law on moral grounds, though rare, is significant because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law.

The Disgrace and Fall of Carl Peters: Morality, Politics, and Staatsräson in the Time of Wilhelm II

As the founder of German East Africa, Carl Peters exercised a continuing hold on the German imagination in the 1890s despite the growth of a general “colonial-weariness” (Kolonialmüdigkeit) in the population. Among a group of colonial adventurers which had failed to produce any man of truly heroic proportions, he still seemed to many a man of unusual mettle, and the entire colonial effort was closely associated with his name. Knowing this, the Colonial Division for four years kept hidden from the public the story of Peters' misbehavior on the slopes of Mt. Kilimanjaro in 1891 and 1892. The Division did not simply refuse to pursue the case expeditiously but refused to admit the facts at all. It was a dangerous game, but one which the government felt it had to play in order to preserve the integrity of the colonial movement. The unfortunate result was that when the story did break in 1896 as a consequence of Social Democratic revelations, the Colonial Division found itself as much on the defense as Peters himself. Not only had a person of Peters's stature violated basic human rights, but the government had put itself in the position of implicitly condoning the brutal suppression of a colonial people. The “civilizing mission,” no one could deny, had been misused for private gain and pleasure, and the Social Democratic attacks on colonialism gained a new moral credibility which could be used to strengthen the party's popularity, much to the chagrin of government officials.