When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. (...) I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law. (shrink)

Justifications and excuses are defenses that exculpate. They are therefore much more like each other than like such defenses as diplomatic immunity, which does not exculpate. But they exculpate in different ways, and it has proven difficult to agree on just what that difference consists in. In this paper I take a step back from justification and excuse as concepts in criminal law, and look at the concepts as they arise in everyday life. To keep the task manageable, I focus (...) primarily on excuses and excusing activities, distinguishing them from justifications as well as from other close relatives, in particular, forgiving and pardoning. I draw upon J.L. Austin’s classic A Plea for Excuses, but expand on his account, suggesting that we offer excuses for reasons besides those he mentions. My hope is that my examination of excuses and excusing activities will help us rethink our views on just how justifications and excuses differ, views which often are worked out without much attention to how these concepts function in everyday life and to the connection between offers of excuses and justifications and the rules of civility. (shrink)

According to an appealing and common view, the moral status of an action – whether it is wrong, for example – is sometimes important in itself in terms of the moral status of other actions – especially those that respond to the original action. This view is especially influential with respect to the criminal law. It is accepted not only by legal moralists but also by adherents of the harm principle, for example. In this paper, I argue against this view. (...) The main arguments emphasize the distinctions between the moral status of actions, consequences, and agents. I argue that what matters, in terms of other actions, is not the moral status of the original action but rather other factors that may be confused with it, such as the moral status of its consequences – whether they are good or bad – and the moral status of the agent – whether she is praiseworthy or blameworthy. The intuitive appeal of the common view is, I argue, at least partly due to a conflation of these factors. Most importantly, once we recall the distinctions between these factors, we can see more clearly that this view lacks a compelling rationale. Or, at least, that it is based on assumptions that, first, are much more controversial than their conclusion, and, second, do not support every aspect of this view – and thus do not offer a unified foundation for this view. (shrink)

When someone is prepunished, they are punished for a predicted crime they will or would commit. I argue that cases of prepunishment universally assumed to be merely hypothetical—including those in Philip K. Dick’s “The Minority Report”— are equivalent to some instances of the real-life punishment of attempt offenses. This conclusion puts pressure in two directions. If prepunishment is morally impermissible, as philosophers argue, then this calls for amendments to criminal justice theory and practice. At the same time, if prepunishment is (...) not imaginary, then the philosophers who reject it cannot claim that their view is supported by common sense. (shrink)

Liberalism faces a tension between its commitment to minimal interference with individual liberty and the urgent need for strong collective action on global climate change. This paper attempts to resolve that tension. It does so on the one hand by defending an expanded model of collective moral responsibility, according to which a set of individuals can be responsible, qua ?putative group?, for harm resulting from the predictable aggregation of their individual acts. On the other, it defends a collectivized version of (...) the harm principle. The claim is that the collectivized principle pushes the burden of argument, against coercively enforced measures to curtail climate change and compensate its victims, onto the global elite collectively responsible for environmental harms. Some such potential arguments are briefly considered and rejected. (shrink)

Sometimes we make mistakes, even when we try to do our best. When those mistakes are about normative matters, such as what is required, this leads to a puzzle. This puzzle arises from the possibility of misleading evidence about what rationality requires. I argue that the best way to solve this puzzle is to distinguish between two kinds of evaluation: requirement and appraisal. The strategy I defend connects three distinct debates in epistemology, ethics, and normativity: the debate over how our (...) theories of epistemic rationality should accommodate misleading evidence, the debate over the relationship between complying with requirements and deserving particular appraisals, and the debate over whether normative ignorance can excuse. Part 1 shows how three apparently plausible claims about epistemic rationality generate a puzzle when agents have misleading evidence about what rationality requires. Part 2 solves this puzzle by distinguishing between evaluations of requirement and appraisal and rejecting the idea that one is required to conform to the Enkratic Principle. I argue instead that complying with the Enkratic Principle provides defeasible evidence that the agent should be positively appraised. One of the consequences of this solution is that false normative beliefs can sometimes excuse agents from negative appraisal they would otherwise deserve for violating requirements. Part 3 defends the view that false normative belief can sometimes excuse against the rival views that false normative belief always excuses, and that false normative belief never excuses. I argue that false normative belief can sometimes excuse violations of requirements, when it is the case that the agent has done what it is reasonable to expect of her. (shrink)

Legal theorists commonly employ a distinction between justification defenses and excuse defenses, but there are significant theoretical disagreements about the nature of the distinction as well as about what the distinction entails. This dissertation is concerned with finding the best way to describe the distinction between the moral concepts of justification and excuse that underlie the concepts employed by legal theorists. Chapter 1 begins by examining moral defenses in general, with emphasis on their purpose, nature, function, and epistemology. Chapter 2 (...) critically examines many of the traditional theoretical assumptions made about justification and excuse in the literature with the goal of winnowing them down to an uncontroversial core that can provide the foundation for a fuller, more specific account. Chapter 3 examines the ordinary language meaning of the words "justification" and "excuse" in order to identify any analytic constraints on what a correct theoretical account of justification and excuse may legitimately include. Finally, Chapter 4 offers and defends a reductive theory of justification and excuse which I call "the praise/blame theory." This theory identifies justified acts with those prima facie wrongful acts for which the actor is morally praiseworthy and excused acts with those prima facie wrongful acts for which the actor is merely not to blame. This simple account is consistent with the logical form of moral defenses, requires minimal elaboration on the terms' ordinary language content, avoids the conceptual mistakes that plague more traditional theories, and has the potential help resolve nagging theoretical issues in related fields. (shrink)

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial as even a partial defence. This pattern (...) of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assistin.. (shrink)

Philosophers often invite their readers to categorize imaginary objects. These objects are not only hypothetical: many of them cannot exist because of physical or technological reasons. They are unprecedented or unheard-of objects. By categorizing imaginary objects, philosophers expect to gain knowledge about our concepts. In this paper, I challenge this general assumption: not every conceivable object can be described in terms of our existing categories. Although prominent philosophers held similar views in the past, they made no effort to provide a (...) satisfactory explanation for such impossibility. The argument that I will develop in the following pages rests mainly on three philosophical assumptions: a) that concepts whose content philosophers attempt to describe denote “monothetic classes”; b) that concept formation depends largely on “ecological salience” (a notion developed in the field of ethnobiology); c) that in any monothetic class, we can draw a proper distinction between definitional and correlated properties. (shrink)

The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of (...) two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim. (shrink)

Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are justified—usually since they prevent harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies to actions that do not reflect all pertinent principles optimally due to mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect (...) the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical reaction is in place only with regard to actions whose wrongness is above a minimal threshold. (shrink)