周 兆雋 教授

I research on philosophy of criminal law and private law. Synopses of some of my papers are provided below. For the official abstracts, please refer to the publishers’ websites.

ARTICLES AND BOOK CHAPTERS

The Comparative Account of Tort Reparation

(2024) Ratio Juris 37(3) (forthcoming)

How can tort reparation be justified? Stephen Perry’s comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their “relative degree of fault.” Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. I argue, to the contrary, that such cases pose a serious difficulty for the account. This is because the comparative account cannot explain why, on the one hand, the loss should be apportioned between the injurer and the victim in contributory negligence cases but, on the other hand, the loss should be shouldered entirely by the victim in cases where both the injurer and the victim are not at fault, given that the relative degree of fault between the injurer and the victim in these two kinds of cases need not differ.

Tort Law and Contractualism

(2024) Law and Philosophy 43(4): 393-413

Gregory Keating offers an account for tort reparation based on John Rawls’s contractualism. Gerald Postema and Arthur Ripstein have offered well-known critiques of Keating’s account. John Oberdiek recently offers a contractualist account of tort law that is based on Scanlonion contractualism rather than Rawlsian contractualism. I argue that while Oberdiek’s account improves upon Keating’s in many respects, at the end of the day it is still problematic. In particular, neither the idea of autonomy nor authority can explain why a reasonable person (in the Scanlonian sense) must favor tort reparation over alternative systems.

Agreement and Restitutionary Liability for Mistaken Payments

(2023) In Sagi Peari and Warren Swain (eds), Rethinking Unjust Enrichment: History, Sociology, Theory & Doctrine (Oxford University Press) 181-200 (with Lusina Ho)

Why does a payee have a duty to return mistaken payments, a duty that is recognized in most legal systems? The payee has not done anything wrong; nor is such return obviously required by property rules (the payor no longer has legal title over the transferred money). Recently, two writers argue that such duty can be justified by appealing to the idea of agreement: Alexander Georgiou appeals to the idea of implicit agreement while Titiana Cutts appeals to the idea of hypothetical agreement. We argue that both attempts fail. In the course of doing so, we highlight some desiderata that any successful account of unjust enrichment must meet and we claim that many non-agreement-based accounts (such as those appealing to the property right of the payor or the payee’s duty of virtue) fare better in terms of such desiderata.

John Gardner’s Continuity Theory of Corrective Justice

(2023) In Michelle Dempsey and François Tanguay-Renaud (eds), From Morality to Law and Back Again: A Liber Amicorum for John Gardner (Oxford University Press) 190-204

John Gardner offers an account of tort reparation based on the continuity thesis (roughly, the reasons for reparation are based on the reasons that justify the primary duty in the first place). I distinguish between three kinds of consideration that we can appeal to in justifying a primary right (namely, utility, loss-independent right, and right against loss), and thus three versions of the continuity thesis. I argue that the version of continuity thesis based on utility or a loss-independent right cannot provide a general justification for reparative damages, and the version based on a right against loss is problematic given existing distributive injustice.

Hoskins’s New Benefit-Fairness Theory of Punishment

(2019) Criminal Law and Philosophy 13(1): 49-61

Justifications of punishment that appeal to the benefits obtained by the offender in the literature come in two main versions. The first version claims that the offender has benefited through offending, and punishment is necessary to eliminate such unfair advantage. The second version claims that an offender has benefited from others’ compliance with the legal rules, and so if he/she does not comply himself/himself then it is fair to force him/her to disgorge the benefits he/she obtained from others’ compliance. Zachary Hoskins recently offers an alternative that focuses instead on the offender’s fair play duty to comply with the legal rules, which include the rules prescribing punishment, that arises in virtue of benefitting from others’ compliance. After highlighting the originality of Hoskins’s account by explaining how it differs (subtly but importantly) from the two main versions in the literature, I nonetheless argue that it cannot explain punitive proportionality.

Punishment and Bad Upbringing

(2018) Criminal Justice Ethics 37(2): 103-121

After distinguishing between different kinds of disadvantage that an offender may suffer from (for example, a bad upbringing during formative years is not the same as poverty at the time of offence), I argue that bad upbringing per se should not be a mitigating factor through criticizing two claims: (1) an offender’s choice to offend is less blameworthy if he or she had a bad upbringing; (2) fairness requires us to punish such an offender less, even if he or she is no less blameworthy for his/her choice to offend.

Loss-Based Retributive Justifications of Punishment

(2017) Oxford Journal of Legal Studies 37(3): 618-635

Noticing the difficulties in justifying punishment by appealing to the supposed unfair advantage obtained by the offenders, some writers (Richard Lippke, Goran Duus-Otterstrom, and Daniel McDermott) recently attempt to justify punishment by appealing instead to the loss suffered by the victims. Lippke and Duus-Otterstrom focus on material loss, while McDermott focuses on non-material (moral) loss. I argue against both versions.

Bennett’s Expressive Justification of Punishment

(2017) Criminal Law and Philosophy 11(4): 661-679

Christopher Bennett recently invigorates the expressive justification of punishment in The Apology Ritual and a number of important papers. After distinguishing between three conceptions of expression (communicative expression, motivational expression, and symbolic expression), I argue them none of them provides a firm basis for punishment.

Excluding Integrity? Revisiting Non-Consequentialist Justifications for Excluding Improperly Obtained Evidence in Criminal Trials

(2016) In Jill Hunter, Paul Roberts, Simon Young, and David Dixon (eds), The Integrity of Criminal Process (Oxford: Hart Publishing) 267-279

I distinguish between three non-consequentialist rationales for excluding improperly obtained evidence in criminal trials, namely, the protective principle, the no-profit principle, and the integrity principle. I defend the protective principle against some common objections and show that the no-profit principle can cover some gaps left open by the protective principle. I also highlight some theoretical problems with the integrity principle. This suggests a prima facie case for dispensing with the integrity principle: it appears to cause more problem than it solves. I nonetheless argue that we should not give up the integrity principle so quickly, as without the integrity principle it is hard to explain why there is a stronger case to exclude improperly obtained evidence in criminal trials (as compared to civil trials).

Duff on the Legitimacy of Punishment of Socially Deprived Offenders

(2012) Criminal Law and Philosophy 6(2): 247-254

Antony Duff argues that our criminal courts lose their legitimacy to blame socially deprived offenders, because the polity as a whole has acted unjustly towards those offenders and the criminal courts are acting on behalf of the polity as a whole. Instead of questioning (as many did) whether our polity as a whole has lost its standing to blame socially deprived offenders, I challenge Duff’s position by arguing that criminal courts can blame legitimately as they can be seen as acting on behalf of a subset of the polity, namely, the just citizens.

Poverty, Distributive Justice, and Punishment

(2012) Canadian Journal of Law and Jurisprudence 25(1): 39-52

Drawing on H.L.A. Hart’s distinction between the justifying aim of punishment and principles governing the distribution of punishment, I argue that even if distributive justice is not one of the justifications of punishment it should still be taken into account in deciding how much to punish. Based on that, I argue that reducing the punishment of a socially deprived offender can often be justified, as it often improves distributive justice.

Temptations, Social Deprivation, and Punishment

(2010) Oxford Journal of Legal Studies 30(4): 775-785

I argue, contrary to Andrew von Hirsch and Andrew Ashworth and others, that there is no reason to punish socially deprived offenders less just because they faced stronger temptations to offend. I argue that what matters is how much temptation an offender would have resisted before giving in, as this bears on the offender’s quality of will; but socially deprived offenders need not generally fare better on this test.

NOTES, REVIEWS, AND TEXTBOOK CHAPTERS

“Commentary on ‘Responsibility for Health and the Value of Choice’” Hon-Lam Li (ed), Lanson Lectures in Bioethics: 2016-2022 – Assisted Suicide, Responsibility, and Pandemic Ethics (Palgrave Macmillan, 2024) 109-120. (There is a reply to my paper by Scanlon in the same edited volume.)

“Criminal Law” In Albert Chen, Jonathan Cheung, Johannes Chan, and Alice Lee (eds), Introduction to Hong Kong Law (3rd edition: Joint Publishing, 2015). (In Chinese, 中文: “刑法”，收於陳弘毅, 張增平, 陳文敏, 及李雪菁(合編), 香港法概論 第三版 (香港: 三聯書店, 2015).]

Review of Grenville Cross and Patrick Cheung, Sentencing in Hong Kong (6th edition) (2012) Hong Kong Law Journal 42(1): 277-278.

“Abolishing By-Elections to Fill Vacancies in the Legislative Council” (2011) Hong Kong Law Journal 41(3): 601-609 (with Simon Young).

“Raz on the Methodology of Jurisprudence” (2010) Law and Philosophy 29(2): 231-242 (Review of Joseph Raz’s Between Authority and Interpretation).

Review of David Eslund’s Democracy Authority (2008) Journal of Value Inquiry 42(3): 411-415.