ABSTRACTI offer an interpretation of Nietzsche's striking idea of ‘the innocence of becoming’, and a partial defense of its import, namely, that no one is ever morally responsible or guilty for what they do and that many of the so-called reactive attitudes are misplaced. I focus primarily, though not exclusively, on the arguments as set out in Twilight of the Idols. First, there is Nietzsche's hypothesis, partly psychological and partly historical or anthropological, that the ideas of ‘free’ action or free (...) will, and of responsibility for actions freely chosen or willed, were introduced primarily in order to justify punishment. Call this the Genetic Thesis about Free Will. Second, there is Nietzsche's claim that the moral psychology, or ‘psychology of the will” as he calls it, that underlies this picture is, in fact, false – that, in fact, it is not true that every action is willed or that it reflects a purpose or that it originates in consciousness. Call these, in aggregate, the Descriptive Thesis about the Will. Finally, there is articulation of a programmatic agenda, namely, to restore the ‘innocence of becoming’ by getting rid of guilt and punishment based on guilt – not primarily because ascriptions of guilt and responsibility are false, but because a world understood as ‘innocent’, one understood in terms of ‘natural’ cause and effect, is a better world in which to live. I focus in particular on a reactive attitude often ignored by philosophers, but of crucial importance for Nietzsche, namely, revenge. I aim to explain and defend Zarathustra's recommendation: ‘Enemy’ you shall say, but not villain; sick you shall say, but not scoundrel; fool you shall say, but not ‘sinner.’ Nietzsche's views are contrasted with those of important modern writers on these topics, especially P.F. Strawson and Derk Pereboom. (shrink)

When blame is understood to be emotion-based or affective, its emotional tone is standardly identified as one of anger. We argue that this conception of affective blame is overly restrictive. By attending to cases of blame that emerge against a background of a particular kind of hope invested in others, we identify a blaming response characterized not by anger but by sadness: reactive disappointment. We develop an account of reactive disappointment as affective blame, maintaining that while angry blame and disappointed (...) blame are both condemnatory responses, they have distinct evaluative foci and occupy different but complementary roles in our accountability practices. (shrink)

In her recent book The Limits of Blame, Erin Kelly argues that we should rethink the nature of punishment because delivering blame is, contrary to the widely held view, not among the justifiable aims of a criminal justice system. In this paper, firstly, I discuss her case against criminal blame. Kelly argues that the emphasis on blame in the criminal justice system and in public discourse is one of the main causes of the stigma and exclusion faced by those convicted (...) for a crime. This claim might appear puzzling and, while she provides other convincing arguments against criminal blame, Kelly does not extensively defend this particular argument. To offer support for this view, I reflect on the often overlooked distinction between moral blame and criminal blame to show how the latter, unlike the former, is exclusionary and stigmatising. Secondly, I address the claim put forth by Kelly that blame should play no role in the criminal justice system at all. In light of her argument about the optional nature of moral blame, I explore the possibility that the state should leave open to victims the option to blame criminal wrongdoers in restorative justice conferences. I argue that in such contexts blame would not have the same exclusionary features of criminal blame in traditional settings and that it could serve some valuable aims articulated by communicative theories of punishment, such as the restoration of moral relationships. (shrink)

It appears at least intuitively appropriate to claim that we owe it to victims to punish those who have wronged them. It also seems plausible to state that we owe it to society to punish those who have violated its norms. However, do we also owe punishment to perpetrators themselves? In other words, do those who commit crimes have a moral right to be punished? This work examines the sustainability of the right to be punished from the standpoint of the (...) two main theories of rights—the will and the interest conceptions. The right to be punished is shown to be largely indefensible on both accounts: on the will theory, the right to be punished conflicts with autonomy, and it can neither be claimed nor waived by a perpetrator; on the interest theory, a perpetrator’s interest in punishment, inasmuch as it exists, is not sufficient to ground a duty on the part of the state. (shrink)

Drug use and drug addiction are severely stigmatised around the world. Marc Lewis does not frame his learning model of addiction as a choice model out of concern that to do so further encourages stigma and blame. Yet the evidence in support of a choice model is increasingly strong as well as consonant with core elements of his learning model. I offer a responsibility without blame framework that derives from reflection on forms of clinical practice that support change and recovery (...) in patients who cause harm to themselves and others. This framework can be used to interrogate our own attitudes and responses, so that we can better see how to acknowledge the truth about choice and agency in addiction, while avoiding stigma and blame, and instead maintaining care and compassion alongside a commitment to working for social justice and good. (shrink)

When philosophers want an example of a person who lacks the ability to do otherwise, they turn to psychopathology. Addicts, agoraphobics, kleptomaniacs, neurotics, obsessives, and even psychopathic serial murderers, are all purportedly subject to irresistible desires that compel the person to act: no alternative possibility is supposed to exist. I argue that this conception of psychopathology is false and offer an empirically and clinically informed understanding of disorders of agency which preserves the ability to do otherwise. First, I appeal to (...) standard clinical treatment for disorders of agency and argue that it undermines this conception of psychopathology. Second, I offer a detailed discussion of addiction, where our knowledge of the neurobiological mechanisms underpinning the disorder is relatively advanced. I argue that neurobiology notwithstanding, addiction is not a form of compulsion and I explain how addiction can impair behavioural control without extinguishing it. Third, I step back from addiction, and briefly sketch what the philosophical landscape more generally looks like without psychopathological compulsion: we lose our standard purported real-world example of psychologically determined action. I conclude by reflecting on the centrality of choice and free will to our concept of action, and their potency within clinical treatment for disorders of agency. (shrink)

I clarify some ambiguities in blame-talk and argue that blame's potential for irrationality and propensity to sting vitiates accounts of blame that identify it with consciously accessible, personal-level judgements or beliefs. Drawing on the cognitive psychology of emotion and appraisal theory, I develop an account of blame that accommodates these features. I suggest that blame consists in a range of hostile, negative first-order emotions, towards which the blamer has a specific, accompanying second-order attitude, namely, a feeling of entitlement—a feeling that (...) these hostile, negative first-order emotions are what the blamed object deserves. (shrink)

I argue that penal philosophy should focus more on our attitudes towards offenders, since these attitudes can shed new light on theories or principles of punishment (of which they are often expressions) and also play a significant role in changing the face of criminal justice. Building on Strawson’s “Freedom and Resentment,” I define attitudes as certain ways of seeing human beings that logically include or exclude various emotional, behavioral, and linguistic responses, that can be more or less natural, and over (...) which we have some degree of voluntary control. I argue that, understood in this sense, there are broadly speaking six attitudes towards offenders: the retributive, the hostile, the moralistic, the paternalistic, the merciful, and the actuarial. After presenting each of these attitudes, I sum up my analysis by focusing on the Polanski sexual abuse case. I then introduce the concept of second-order attitudes, where egalitarianism is the attitude that consists of taking the same attitude towards all offenders, and particularism is the attitude that consists of adjusting your attitude to each offender. Finally, I briefly explain why a mix of the retributive and the merciful should be our default attitude. (shrink)

This article starts from a paradox and aims to solve it. On the one hand, although Drug Courts (DCs) are one of the most interesting penal innovations in recent years, running counter to the dominant retributive approach and the rival approach based on deterrence, they have surprisingly not attracted the attention of philosophers and therefore lack a solid philosophical foundation. On the other hand, although Pickard's ‘responsibility without blame’ approach looks very convincing on paper, its practical applications remain unclear outside (...) the clinical context. I argue that Pickard's approach is the theoretical framework that DCs need and that they are a compelling application of it: DCs do ascribe to participants various forms of responsibility (criminal ‘liability-responsibility’, responsibility of choice, responsibility for progress or failure, responsibility as answerability, tort liability) while striving to keep ‘affective blame’ at bay in order to help them regain their autonomy. However, I argue that some of the limitations of both this approach and DCs become apparent once we consider the ‘outer limits’ of DCs, in other words those who are terminated from DCs and those who refuse to enter DCs in the first place. (shrink)

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though this scope (...) is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done _with_ offenders, rather than _to_ offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice. (shrink)

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law (...) cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority. (shrink)

The Limits of Blame, by KellyErin I. Cambridge, MA: Harvard University Press, 2018. Pp. 221.

In some popular and political discourse, ‘compassion’ is commonly conceived as a simple or ‘given’ aspect of the world. And yet public discussion also focusses on whether ‘compassion' has gone wrong in some way, suggesting that there might be various more or less satisfactory versions of compassion. At the same time, some thinkers doubt whether compassion should any longer be expected of those working in healthcare. This article draws on philosophical and theological resources to argue that the conceptual context which (...) forms compassion is crucial for determining the ethos of healthcare. The discussion explores three themes – politics, suffering and responsibility – which must be addressed in order to understand what is wrong with compassion, to identify lines of future investigation and to develop possible remedies. (shrink)

This short review examines the work of four Canadian scholars addressing a variety of questions about criminal responsibility. The essays under review are a small part of a recent collection of essays entitled “Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law.”.

This paper investigates agents’ blameworthiness when they are part of a group that does harm. We analyse three factors that affect the scope of an agent’s blameworthiness in these cases: shared intentionality, interpersonal influence, and common knowledge. Each factor involves circumstantial luck. The more each factor is present, the greater is the scope of each agent’s vicarious blameworthiness for the other agents’ contributions to the harm. We then consider an agent’s degree of blameworthiness, as distinct from her scope of blameworthiness. (...) We suggest that an agent mostly controls her degree of blameworthiness—but even here, luck constrains what possible degrees of blameworthiness are open to her. (shrink)

Mental health-care clinicians report that they hold patients responsible for morally objectionable behaviour but at the same time consider blaming attitudes to be inappropriate. These practices present a conundrum for all Strawsonian theories of responsibility. In response to this conundrum, Pickard has proposed severing the Strawsonian connection between being responsible and being an appropriate target of blaming attitudes. In this article I will argue that her solution fails to explain the practices at stake and provide an alternative solution that uncovers (...) an under-theorized stance we take towards those whose abilities are underdeveloped or compromised. (shrink)

A dominant view of guilt and shame is that they have opposing action tendencies: guilt- prone people are more likely to avoid or overcome dysfunctional patterns of behaviour, making amends for past misdoings, whereas shame-prone people are more likely to persist in dysfunctional patterns of behaviour, avoiding responsibility for past misdoings and/or lashing out in defensive aggression. Some have suggested that addiction treatment should make use of these insights, tailoring therapy according to people’s degree of guilt-proneness versus shame-proneness. In this (...) paper, we challenge this dominant view, reviewing empirical findings from others as well as our own to question (1) whether shame and guilt can be so easily disentangled in the experience of people with addiction, and (2) whether shame and guilt have the opposing action tendencies standardly attributed to them. We recommend a shift in theoretical perspective that explains our main finding that both emotions can be either destructive or constructive for recovery, depending on how these emotions are managed. We argue such management depends in turn on a person’s quality of self-blame (retributive or ‘scaffolding’), impacting upon their attitude towards their own agency as someone with fixed and unchanging dispositions (shame and guilt destructive for recovery) or as someone capable of changing themselves (shame and guilt productive for recovery). With an eye to therapeutic intervention, we then explore how this shift in attitude towards the self can be accomplished. Specifically, we discuss empathy-driven affective and narratively-driven cognitive components of a process that allow individuals to move away from the register of retributive self-blame into a register of scaffolding ‘reproach’, thereby enabling them to manage their experiences of both shame and guilt in a more generative way. (shrink)

Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and obscuring caring practices. Offenders (...) may be partially silenced and excluded by mainstream criminal justice practices which limit interaction between offenders and practitioners. When we ignore significant harms, or silence and exclude, we treat others as passive non-subjects. This partially objectifies offenders, and is inconsistent with treatment as equals. Penal theories employing harm-centred and harm-normalizing definitions of punishment can provide few resources to help practitioners either avoid, or recognize and respond to, harms. Care ethics, by contrast, motivates the avoidance of harm, ongoing inclusive engagement, and respectful interaction with others. I argue that defining punishment without presupposing harm facilitates the identification of morally problematic harms, and recognition of caring practices. I offer a principled argument, and political and pragmatic supplementary arguments, for responding to offenders without intentional harm and with care. Principles drawn from care ethics can help to strengthen mainstream criminal practices by structuring decision-making and action. Bottom-up alternative criminal justice practices share some values with these proposed guiding principles, allowing a partial test of the principles. I consider examples of restorative justice practices, therapeutic jurisprudence, community justice and other problem-solving court practices, in addition to considering how well mainstream punishment practices measure up to these principles. My analysis illuminates the strengths and weaknesses of the principles, and how they might contribute to securing treatment as equals for offenders in mainstream practices. (shrink)