Freud justified his extensive theorizing about dreams by the observation that they were “the royal road” to something much more general: namely, our unconscious mental life. The current preoccupation with the theory of excuse in criminal law scholarship (including my own) can be given a similar justification, for the excuses are the royal road to theories of responsibility generally. The thought is that if we understand why we excuse in certain situations but not others, we will have also gained a (...) much more general insight into the nature of responsibility itself. Nowhere has this thought been more evident than in the century-old focus of criminal law theoreticians on the excuse of insanity, a focus that could not be justified by the importance of the excuse itself.In this paper I wish to isolate two theories of excuse, each of which instantiates its own distinctive theory of responsibility. One is what I shall call the choice theory of excuse, according to which one is excused for the doing of a wrongful action because and only because at the moment of such action's performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise. Such a choice theory of excuse instantiates a more general theory of responsibility, according to which we are responsible for wrongs we freely choose to do, and not responsible for wrongs we lacked the freedom (capacity and opportunity) to avoid doing. The second I shall call the character theory of excuse, according to which one is excused for the doing of a wrongful action because and only because such action is not determined by (or in some other way expressive of) those enduring attributes of ourselves we call our characters. (shrink)

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean (...) approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment. (shrink)