In everyday life, we assume that there are degrees of blameworthiness and praiseworthiness. Yet the debate about the nature of moral responsibility often focuses on the “yes or no” question of whether indeterminism is required for moral responsibility, while questions about what accounts for more or less blameworthiness or praiseworthiness are underexplored. In this paper, I defend the idea that degrees of blameworthiness and praiseworthiness can depend in part on degrees of difficulty and degrees of sacrifice required for performing the (...) action in question. Then I turn to the question of how existing accounts of the nature of moral responsibility might be seen to accommodate these facts. In each case of prominent compatibilist and incompatibilist accounts that I consider, I argue that supplementation with added dimensions is required in order to account for facts about degrees of blameworthiness and praiseworthiness. For example, I argue that the reasons-responsiveness view of Fischer and Ravizza requires supplementation that takes us beyond even fine-grained measures of degrees of reasons-responsiveness in order to capture facts about degrees of difficulty to extend the reasons-responsiveness view by appealing to such measures). I conclude by showing that once we recognize the need for these additional parameters, we will be in a position to explain away at least some of the appeal of incompatibilist accounts of moral responsibility. (shrink)

It is conventional wisdom that appreciating the role of luck in our moral lives should make us more sparing with blame. But views of moral responsibility that allow luck to augment a person’s blameworthiness are in tension with this wisdom. I resolve this tension: our common moral luck partially generates a duty to forgo retributively blaming the blameworthy person at least sometimes. So, although luck can amplify the blame that a person deserves, luck also partially generates a duty not to (...) give the blameworthy person the retributive blame that he deserves at least sometimes. (shrink)

In this paper, I claim that the personal/subpersonal distinction is first and foremost a distinction between two kinds of psychological theory or explanation: it is only in this form that we can understand why the distinction was first introduced, and how it continues to earn its keep. I go on to examine the different ontological commitments that might lead us from the primary distinction between personal and subpersonal explanations to a derivative distinction between personal and subpersonal states. I argue that (...) on one of the most common metaphysical interpretations of the explanatory distinction, talk of a distinction between personal and subpersonal states simply makes no sense. When people insist on applying the personal/subpersonal terminology to psychological states, I allow that they are often making a genuine distinction, but one that it is best understood in terms of Stich's (1978) distinction between doxastic and subdoxastic states. I end the paper by considering some other common misinterpretations of the personal/subpersonal distinction, such as those involving consciousness, normativity, or autonomy. (shrink)

In this paper, I defend externalist accounts of justified belief from Cohen's new evil demon objection. While I think that Cohen might be right that the person is justified in believing what she does, I argue that this is because we can defend the person from criticism and that defending a person is a very different thing from defending a person's attitudes or actions. To defend a person's attitudes or actions, we need to show that they met standards or did (...) not violate norms. Intuitions about whether we can defend a person from criticism are a poor guide when it comes to determining whether norms were violated or standards were met. It turns out that even radical forms of externalism about justification are compatible with the intuitions that Cohen's example elicits. Properly understood, those intuitions show that the believer should be excused from criticism (and excused for failing to believe with adequate justification). (shrink)

One way to frame the problem of moral luck is as a contradiction in our ordinary ideas about moral responsibility. In the case of two identical reckless drivers where one kills a pedestrian and the other does not, we tend to intuit that they are and are not equally blameworthy. The Character Response sorts these intuitions in part by providing an account of moral responsibility: the drivers must be equally blameworthy, because they have identical character traits and people are originally (...) praiseworthy and blameworthy in virtue of, and only in virtue of, their character traits. After explicating two versions of the Character Response, I argue that they both involve implausible accounts of moral responsibility and fail to provide a good solution to the problem of moral luck. I close by noting how proponents of moral luck can preserve a kernel of truth from the Character Response to explain away the intuition that the drivers are equally blameworthy. (shrink)

Michael Moore’s Causation and Responsibility offers an integrated conception of the law, morality, and metaphysics, centered on the notion of causation, grounded in a detailed knowledge of case law, and supported on every point by cogent argument. This is outstanding work. It is a worthy successor to Harte and Honoré’s classic Causation in the Law, and I expect that it will guide discussion for many years to come.

This is a draft of my chapter on Negligence for the forthcoming Oxford Handbook in Moral Psychology. It discusses philosophical, psychological, and legal approaches to the attribution of culpability in cases of negligent wrongdoing.

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

Recent empirical work suggests that emotions are responsible for anti-consequentialist intuitions. For instance, anger places value on actions of revenge and retribution, value not derived from the consequences of these actions. As a result, it contributes to the development of retributive intuitions. I argue that if anger evolved to produce these retributive intuitions because of their biological consequences, then these intuitions are not a good indicator that punishment has value apart from its consequences. This severs the evidential connection between retributive (...) intuitions and the retributive value of punishment. This argument may generalize to other deontological intuitions and theories. (shrink)

The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.

I argue that certain kinds of luck can partially determine an agent’s praiseworthiness and blameworthiness. To make this view clearer, consider some examples. Two identical agents drive recklessly around a curb, and one but not the other kills a pedestrian. Two identical corrupt judges would freely take a bribe if one were offered. Only one judge is offered a bribe, and so only one judge takes a bribe. Put in terms of these examples, I argue that the killer driver and (...) bribe taker are more blameworthy than their counterparts. I offer three arguments for that view, and, in doing so, I exemplify a general way to advance the moral luck debate. First, I argue against an account of moral responsibility that implies that the judges are equally blameworthy. Second, I argue that the killer driver is more blameworthy than the merely reckless driver. Third, I locate an alternative sense in which the agents in each case pair are morally on par. (shrink)

In Fallibilism: Evidence and Knowledge, Jessica Brown identifies a number of problems for the so-called knowledge view of justification. According to this view, we cannot justifiably believe what we do not know. Most epistemologists reject this view on the grounds that false beliefs can be justified if, say, supported by the evidence or produced by reliable processes. We think this is a mistake and that many epistemologists are classifying beliefs as justified because they have properties that indicate that something should (...) be excused. Brown thinks that previous attempts to make this case have been unsuccessful. While the difficulties Brown points to are genuine, I think they show that attempts to explain a classificatory judgment haven't been successful. Still, I would argue that the classification is correct. We need a better explanation of this classificatory judgment. I will try to clarify the justification-excuse distinction and explain why it's a mistake to insist that beliefs that violate epistemic norms might be justified. Just as it's possible for a rational agent to act without justification in spite of her best intentions, it's possible that a rational thinker who follows the evidence and meets our expectations might nevertheless believe without sufficient justification. If our justified beliefs are supposed to guide us in deciding what to do, we probably should draw on discussions from morality and the law about the justification/excuse distinction to inform our understanding of the epistemic case. (shrink)

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if (...) we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

Responsibility, blameworthiness in particular, has been characterized in a number of ways in a literature in which participants appear to be talking about the same thing much of the time. More specifically, blameworthiness has been characterized in terms of what sorts of responses are fair, appropriate, and deserved in a basic way, where the responses in question range over blame, sanctions, alterations to interpersonal relationships, and the reactive attitudes, such as resentment and indignation. In this paper, I explore the relationships (...) between three particular theses: (i) the claim that one is blameworthy to the extent that it is fair to impose sanctions, (ii) the claim that one is blameworthy to the extent that one deserves sanctions, and (iii) the claim that one is blameworthy to the extent that it is appropriate to respond with reactive attitudes. Appealing to the way in which luck in the outcome of an action can justifiably affect the degree of sanctions received, I argue that (i) is false and that fairness and desert come apart. I then argue that the relationship between the reactive attitudes and sanction is not as straightforward as has sometimes been assumed, but that (ii) and (iii) might both be true and closely linked. I conclude by exploring various claims about desert, including ones that link it to the intrinsic goodness of receiving what is deserved and to the permissibility or rightness of inflicting suffering. (shrink)

For many philosophers, bad-history wrongdoers are primarily interesting because of what their cases might tell us about the interaction of moral responsibility and history. However, philosophers focusing on blameworthiness have overlooked important questions about blame itself. These bad-history cases are complicated because blame and sympathy are both fitting. When we are careful to consider the rich natures of those two reactions, we see that they conflict in several important ways. We should see bad-history cases as cases about whether and how (...) we should blame, rather than as cases giving us ready insight into the nature of moral responsibility. (shrink)

In the paper, I defend the skeptical view that no one is ever morally responsible in the basic desert sense since luck universally undermines responsibility-level control. I begin in Section 1 by defining a number of different varieties of luck and examining their relevance to moral responsibility. I then turn, in Section 2, to outlining and defending what I consider to be the best argument for the skeptical view--the luck pincer (Levy 2011). I conclude in Section 3 by addressing Robert (...) Hartman's (2017) numerous objections to the luck pincer. I argue that the luck pincer emerges unscathed and the pervasiveness of luck (still) undermines moral responsibility. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

This paper presents a new version of the democratic argument for the freedom of expression that has the resources to give a plausible reply to the perennial objection—ordinarily considered fatal—that such accounts fail to deliver protections for abstract art, instrumental music, and lots of other deserving nonpolitical speech. The argument begins with the observation that there are different things that a free speech theory might aim to accomplish. It will hope to justify a right to free speech, of course, with (...) a particular scope and shape, but that right might be a moral right, an ordinary legal right, or a specifically constitutional right. The new version of the argument—the refined argument from democracy—aims to justify a specifically constitutional right to political speech, administered by strong-form judicial review. The democracy theorist can accommodate the intuition that abstract art deserves protection by agreeing that we have a moral right, and probably ought to have an ordinary legal right, to produce and view abstract art. She must only insist that abstract art should not be protected by a specifically constitutional right administered by strong-form judicial review. Not because abstract art does not deserve constitutional protection, but because, on this view, whether a particular right ought to be enshrined in the constitution and administered by judicial review is not solely a matter of the importance of the right or the value of the interests it protects. (shrink)

Forward-looking aims tend to play a much less significant role than retribution in justifying criminal punishment, especially in common law systems. In this paper I attempt to reinvigorate the idea that there are important forward-looking justifications for criminal law and punishment by looking to social theories of responsibility. I argue that the criminal law may be justified at the institutional level because it is a part of larger responsibility practices that have the effect of bolstering our reasons-responsiveness by making us (...) sensitive to the potential reactive attitudes of a larger societal audience. I further claim that forward-looking effects may justify criminal law institutions even if retribution is the primary aim of assigning punishments to specific offenders. (shrink)

Two-tiered mixed theories of punishment hold that legislatures should act according to consequentialism, but the judiciary should act according to retributivism. A major motivation for these theories is wanting to preserve the idea that punishment is ultimately justified on consequentialist grounds, without falling prey to the Punishing the Innocent objection. Yet this benefit is illusory. While two-tiered mixed theories successfully avoid the Punishing the Innocent objection narrowly construed, they do not successfully escape the point behind it. This is because cases (...) can be constructed with the same problems as those used to describe the classic Punishing the Innocent objection, just bumped up to the legislature. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

It has been argued that a retributivist criminal justice system treats offenders with a respect lacking in alternative criminal justice systems; retributivism presumably recognizes that offenders are fellow members of the moral community who can be held responsible for their actions. One version of the respect argument builds on P.F. Strawson’s moral responsibility theory. According to Strawson, we may take either a participant or objective attitude toward other people. The former is the default attitude when interacting with other adults, whereas (...) the latter is fit for children and the mentally disabled or ill, whom we merely try to manage and handle as best we can. The participant attitude also involves holding people responsible when they do wrong. Supposedly, a retributivist criminal justice system functions as a natural continuation of our everyday, participant, and responsibility-holding practices, unlike alternative systems that adopt an objective attitude toward offenders. I argue that this is wrong. The participant attitude requires reciprocity and, usually, some level of equality too. Even an idealized retributivist system has little room for this, not to mention the flawed versions of this system we see in reality. (shrink)

Desert plays a central role in most contemporary theories of retributive justice, but little or no role in most contemporary theories of distributive justice. This asymmetric treatment of desert is prima facie strange. I consider several popular arguments against the use of desert in distributive justice, and argue that none of them can be used to justify the asymmetry.

Neuroscience has been proposed for use in the legal system for purposes of mind reading, assessment of responsibility, and prediction of misconduct. Each of these uses has both promises and perils, and each raises issues regarding the admissibility of neuroscientific evidence.

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws on (...) the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

Abolitionism is the view that if no one is responsible, then we ought to abandon the reactive attitudes. Proponents suggest that reactive attitudes can be replaced in our emotional repertoire by non-reactive analogues. In this paper, I dispute and reject a common challenge to abolitionism according to which the reactive attitudes are necessary for protesting unfairness and maintaining social harmony. While other abolitionists dispute the empirical basis of this objection, I focus on its implications. I argue that even if non-reactive (...) analogues cannot perform the interpersonal and social functions of reactive attitudes, it does not follow that the losses of abandoning them outweigh the gains of retaining them. The force of the challenge rests on a mistake, identified by John Stuart Mill among others, that is common when evaluating entrenched social practices. (shrink)

Most people (and philosophers) distinguish between performing a morally wrong action and being blameworthy for having performed that action, and believe that an individual can be fully excused for having performed a wrong action. My purpose is to reject this claim. More precisely, I defend what I call the “Dependence Claim”: A's doing X is wrong only if A is blameworthy for having done X. I consider three cases in which, according to the traditional view, a wrong action could be (...) excused: duress, mental illness, and mistake. I try to show that the reasons for excusing in either case are not relevantly distinguishable from the reasons for claiming that the prima facie wrong action is not wrong all things considered. (shrink)

The article discusses retributive justice and punitive restraint in response to the worst types of crime. I take the Breivik Case as a starting point. Anders Behring Breivik was sentenced to 21 years of preventive detention for killing 69 people, mainly youths, at Utøya and 8 people in Oslo on July 22nd, 2011. Retributivist theories as well as commonly held retributive intuitions suggest that much harsher punishment is required for such crimes. According to some retributivist theories, most notably on the (...) influential theories of Kant and Hegel, the death penalty is warranted for murderers like Breivik. This suggests that the rationale for punitive restraint in a case like the Breivik Case can only be found in forward- looking, consequentialist theories of punishment, or by adding to retributivist theories a side-constraint in the form of a principle of parsimony. However, I argue that if we look closer at the function of punishment in the retributivist theories of Kant and Hegel, they too imply a rationale for punitive restraint, even for such horrific crimes as here discussed. Against Kant and Hegel’s own views on the death penalty, I argue that their broader “freedom theories” of retributive justice do not imply the justice of the death penalty or life imprisonment. In the last part of the article, I explore differences in the concepts of freedom entailed by Kant and Hegel’s theories, and I relate these to some of the background factors relevant to the Breivik Case. (shrink)

Incest is a crime in most societies. In the United States, incest is punishable in almost every state with sentences going as far as 20 and 30 years in prison, and even a life sentence. Yet the reasons traditionally proffered in justification of criminalization of incest—respecting religion and universal tradition; avoiding genetic abnormalities; protecting the family unit; preventing sexual abuse and sexual imposition; and precluding immorality—at a close examination, reveal their under- and over-inclusiveness, inconsistency or outright inadequacy. It appears that (...) the true reason behind the long history of the incest laws is the feeling of repulsion and disgust this tabooed practice tends to evoke in the majority of population. However, in the absence of wrongdoing, neither a historic taboo nor the sense of repulsion and disgust legitimizes criminalization of an act. (shrink)

This paper repudiates Manuel Vargas’s attempt to supplant the traditional moral influence theory of responsibility with his ‘agency cultivation model’. By focusing on fostering responsiveness to moral considerations, ACM purports to avoid the chief pitfalls of MIT. However, I contend that ACM is far less distinctive than it initially appears and so possesses all of MIT’s defects. I also assail Vargas’s counterfactual test for assessing whether a wrongdoer can respond to moral considerations. It is argued that the counterfactual test is (...) epistemically redundant because it can only be fleshed out once we have settled the issues it is supposed to resolve. Moreover, it tacitly inverts the relation between freedom and responsibility—we cannot attribute free will to wrongdoers unless we have already established their blameworthiness. The upshot of this is that enquiries into an agent’s freedom are irrelevant to the ethics of holding her responsible. (shrink)

Moral psychologists have shown that people’s past moral experiences can affect their subsequent moral decisions. One prominent finding in this line of research is that when people make a judgment about the Trolley dilemma after considering the Footbridge dilemma, they are significantly less likely to decide it is acceptable to redirect a train to save five people. Additionally, this ordering effect is asymmetrical, as making a judgment about the Trolley dilemma has little to no effect on people’s judgments about the (...) Footbridge dilemma. We argue that this asymmetry is the result of a difference in how each dilemma affects people’s beliefs about the importance of saving lives. In two experiments, we show that considering the Footbridge dilemma disconfirms these beliefs, while considering the Trolley dilemma does not significantly affect them. Consistent with predictions of sequential learning models, our findings offer a clear and parsimonious account of the asymmetry in the ordering effect. (shrink)

This article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all‐thing‐considered desirable. Though weak (...) moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways. (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).

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

I argue that justification isn't just in the head. The argument is simple. We should be guided by our beliefs. We shouldn't be guided by anything to do what we shouldn't do. So, we shouldn't believe in ways that would guide us to do the things that we shouldn't. Among the various things we should do is discharge our duties (e.g., to fulfil our promissory obligations) and respect the rights of others (e.g., rights not to be harmed or killed by (...) agents acting on bad information). The grounds of our duties and obligations aren't just in the head. Thus, the conditions that bear on the justification of our beliefs cannot be contained wholly in our heads. The internalist might be right about aspects of normativity, but their theories tell us important normative truths without telling us the whole truth. In addition to norms that tell us how to process information, there are norms that tell us how we ought to live together. In information-asymmetry cases, these norms clearly come apart. Important normative questions about what we should do when agents (who, we might suppose, do what they subjectively ought to do) have interests that come into conflict can only be answered by externalist theories that recognise information-transcendent norms and normatively significant relations that don't supervene upon the information of any agent in particular. The internalist picture turns out to be disturbing precisely because it falls silent when we're faced with questions about how to resolve these conflicts. Resolving these conflicts should be a pressing concern for every normative theory. (shrink)

The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin's traditional account. The main argument for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made (...) to Devlin by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and suggests some areas for further development. Although Devlin's position has been scrutinized thoroughly in the literature on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents of legal moralism. (shrink)

This paper is intended to be a summary of the author's views on the relationship between law and morality worked out over the past three decades in jurisprudence. The paper preliminarily clarifies the matter by isolating some lines of cleavage separating different questions askable about this relationship. With this done, the author argues for two theses. One, that judges are obligated to use morality in their decisions in particular cases; and two, that the morality judges are obligated to use in (...) their judicial reasonings, is best seen as the natural lawyer sees it, namely, as being part of the law that obligates judges in their role as judges. The author not only believes these theses to be true; he also thinks that these theses are practically important, in that their acceptance by judges makes for better judging. (shrink)

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that conscious awareness (...) is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)

‘Retributivism’ covers a wide range of theories which, even though they differ in various ways, all give some room for proportionality considerations with regard to the question of how severely offenders should be punished. This article addresses the question—well‐known from traditional ethical theory—as to whether proportionality constraints should be given an absolutist or a non‐absolutist interpretation. It is argued that both absolutist and some non‐absolutist accounts of proportionality constraints have counter‐intuitive implications and, more generally, that the non‐absolutist interpretation, to which (...) most retributivists seem to subscribe, faces serious challenges with regard to how the thresholds of such constraints should be determined. It is concluded that, given the aspiration of providing genuine action guidance for penal practice, the retributivist faces a dilemma that is not easily resolved. (shrink)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it is unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws (...) on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, but it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes and two fine monographs by Farmer and Tadros. It will shape the field for decades to come; and it has (...) decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility. (shrink)

This paper discusses differences between two major schools in philosophy of criminal law, retributivism and consequentialism, with regard to the risk of punishing the innocent. As it is argued, the main point of departure between these two camps in this respect lies in their attitude towards the high evidentiary threshold in a criminal trial: while retributivism seems to strongly support setting this standard high, consequentialists may find it desirable to relax it in some cases. This discussion is set in the (...) context of proxy criminalization, i.e. a situation, in which some suspicious behaviour is criminalized. Since proxy criminalization may be understood as an effective lowering of the evidentiary threshold, its employment is justifiable from the consequentialist perspective, while being highly problematic for the retributivists. (shrink)

Gideon Rosen (2014) has drawn our attention to cases of duress of a particularly interesting sort: the person's ‘mind is not flooded with pain or fear’, she knows exactly what she is doing, and she makes a clear-headed choice to act in, as Rosen says, ‘awful ways’. The explanation of why we excuse such actions cannot be that the action was not voluntary. In addition, although some duress cases could also be viewed as necessity cases and thus as justified, Rosen (...) wisely sets aside that complicating factor by zeroing in on those cases where the action clearly is not justified. So why do we excuse in these cases, where the action is not justified and the agent acted voluntarily?Rosen thinks the key lies in the ‘ill will’ condition, ‘the idea that an act is blameworthy only if it manifests insufficient concern or regard for those affected’. He says this is relatively uncontroversial; much of my paper is taken up with calling the ‘ill will’ condition into question. I also take issue with Rosen on just how justifications and excuses differ. I argue in favour of understanding justifications (in a context where we are asking how justifications and excuses differ) as not requiring truth, but only reasonable belief. (shrink)