Criminal Liability from the Perspective of Virtue Ethics

Nobahar, Rahim; Mahmoudiyan Isfahani, Kamran

doi:10.22124/jol.2024.25615.2409

Criminal Liability from the Perspective of Virtue Ethics

Document Type : Research Paper

Authors

¹ Associate Professor, Department of Islamic Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

² Assistant Professor, Department of Law, Khomeini Shahr Branch, Islamic Azad University, Isfahan, Iran.

10.22124/jol.2024.25615.2409

Abstract

The philosophy of virtue ethics can serve as the foundation for a virtue-based criminal law. Proponents of this perspective assert that the descriptive concept of crime is derived from three key principles of virtue ethics (vice, akrasia, and enkratia). These moral constructs influence both the "foundation" and "extent" of criminal responsibility. The primary question, then, is how the scope of "criminal responsibility" is articulated based on these virtue ethics principles, and whether criminal responsibility is "character-based" or "conduct-based." Some virtue ethicists argue that "character" is a prerequisite for criminal responsibility, whereas other philosophers of criminal law emphasize the element of "conduct" in determining criminal liability. Adopting an analytical-critical method, this article aims to assess the influence of these three virtue ethics concepts on the notion of crime, before presenting counterarguments to this position. The article argues that those three aforementioned dimensions of moral wrongdoing i.e. vice, akrasia, and enkratia do not function as a "necessary condition" within the "descriptive" concept of crime. Consequently, the realm of criminalization and the foundation of criminal responsibility cannot be solely formulated based on ethical concepts.

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