Many prominent theories of moral responsibility rely on the notion of “tracing,” the idea that responsibility for an outcome can be located in (i.e., “traced back to”) some prior moment of control, perhaps significantly antecedent to the proximate sources of a considered action. In this article, I show how there is a problem for theories that rely on tracing. The problem is connected to the knowledge condition on moral responsibility. Many prima facie good candidate cases for tracing analyses appear to (...) violate the knowledge condition on moral responsibility. So, either we need to dispense with tracing approaches or we must refine our understanding of the knowledge condition or we are responsible less frequently than we suppose. (shrink)

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)

In various areas of Anglo-American law, legal liability turns on causation. In torts and contracts, we are each liable only for those harms we havecausedby the actions that breach our legal duties. Such doctrines explicitly make causation an element of liability. In criminal law, sometimes the causal element for liability is equally explicit, as when a statute makes punishable any act that has “caused… abuse to the child….” More often, the causal element in criminal liability is more implicit, as when (...) criminal statutes prohibitkillings, maimings, rapings, burnings, etc. Such causally complex action verbs are correctly applied only to defendants who have caused death, caused disfigurement, caused penetration, caused fire damage, etc. (shrink)

The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. However, this test is infrequently mentioned by the courts and almost never explains their decisions. Instead, they apply, explicitly or implicitly, various justice-based standards that take into account the rights and relationships among the parties. This is true even for the two judges most closely identified with the aggregate-risk-utility test: Learned Hand and Richard Posner. During the five decades that Hand served (...) as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949, and in none of those opinions did he actually apply the test to resolve the negligence issue. In his last reference to the test, in 1949, he essentially abandoned it. None of his fellow circuit judges ever mentioned the test. Posner claims that the Hand formula expresses an economic efficiency interpretation of negligence that has long been implicit in judicial opinions. However, Posner’s arguments are based on speculative and implausible assumptions, overbroad generalizations, selective quotations, and superficial descriptions of cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. The same flaws are apparent in Posner’s attempts to apply the Hand formula in his own judicial opinions. Neither he nor his like-minded colleague, Frank Easterbrook, has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow circuit judges has attempted to do so. (shrink)

The paper considers the question of whether it is possible to acquire beliefs at will, i.e. directly, simply as the result of willing to do so. In particular, it discusses an argument of Bernard Williams in "Deciding to Believe" to the conclusion that it is a necessary truth that one cannot acquire a belief at will. The argument is first clarified and reformulated so as to exhibit the underlying assumptions and explain precisely what he means by "acquiring beliefs at will." (...) The truth of the premises is then examined. Attention is focused on the most important assumption, which is that necessarily, if in full consciousness I will to acquire a belief b irrespective of its truth, then after the event it is impossible that I believe in full consciousness [b is a present belief of mine and I acquired b at will]. After further clarification of this claim, I argue that whatever plausibility it has results from the plausibility of another claim: Necessarily ~ (Ǝx) (Ǝp) (x believes [x believes p and x's belief of p is not sustained by any truth-considerations] ). I defend the latter claim against apparent counter-examples and show that it is compatible with the possibility conscious irrationality and has important implications. Nevertheless, I argue that even if it is true, other premises of Williams' argument are not plausible and he does not succeed in establishing that we cannot acquire beliefs at will. (shrink)

My concern in this paper will be to explore and develop a version of nonsocratic skepticism about weakness of will. In my view, socratism is incorrect, but like Socrates, I think that the common understanding of weakness of will raises serious problems. Contrary to socratism, it is possible for a person knowingly to act contrary to his or her better judgment. But this description does not exhaust the common view of weakness. Also implicit in this view is the belief that (...) actions which are contrary to one's better judgment are free in the sense that the agent could have done otherwise. To take seriously the possibility of acting contrary to one's better judgment is at the same time to raise problems about the distinction between weakness and compulsion. I argue that the common view, according to which the differentiating feature is that the weak are able to conform their behavior to their practical judgments, is unjustified. Instead, I have proposed that weakness of will involves the failure to develop certain normal capacities of self-control, whereas compulsion involves desires which even the possession of such capacities would not enable one to resist. (shrink)

In this article, I confront Garvey’s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey’s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come (...) in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey’s offender’s circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so. (shrink)

The exercise of synchronic self-control is the way in which an actor can attempt to bring a desire into alignment with his better judgement at the moment and during the interval of time over which, but for the exercise of such self-control, the desire would become the actor’s preponderant desire, which the actor would then translate into an act contrary to his better judgment. The moral psychology of an actor who fails to achieve such self-control can be analyzed in two (...) ways. One way is meant to be consistent with compatibilist metaphysics; the other with libertarian metaphysics. The implications of these analyses for the criminal law are complicated, but perhaps the most important is this: the criminal law should in principle recognize a partial excuse for an actor who exercises synchronic self-control but who gives up his effort because he believes that he can no longer continue to resist. His effort to achieve self-control thus fails, and he ends up translating into action the very desire he set out to control. (shrink)

Recent writers on negligence and culpable ignorance have argued that there are two kinds of culpable ignorance: tracing cases, in which the agent’s ignorance traces back to some culpable act or omission of hers in the past that led to the current act, which therefore arguably inherits the culpability of that earlier failure; and non-tracing cases, in which there is no such earlier failure, so the agent’s current state of ignorance must be culpable in its own right. An unusual but (...) intriguing justification for blaming agents in non-tracing cases is provided by Attributionism, which holds that we are as blameworthy for our non-voluntary emotional reactions, spontaneous attitudes, and the ensuing patterns of awareness as we are for our voluntary actions. The Attributionist explanation for why some non-tracing cases involve culpability is an appealing one, even though it has limited scope. After providing a deeper account of why we should take the Attributionist position seriously, I use recent psychological research to argue for a new account of the conditions under which agents are culpable for straightforward instances of blameworthy acts. That account is extended to blameworthiness for non-voluntary responses. I conclude that even when the agent’s failure to notice arises from a nonvoluntary objectionable attitude, very few such cases are ones in which Attributionism implies that the agent is blameworthy for her act. (shrink)

Recently, a number of philosophers have begun to question the commonly held view that choice or voluntary control is a precondition of moral responsibility. According to these philosophers, what really matters in determining a person’s responsibility for some thing is whether that thing can be seen as indicative or expressive of her judgments, values, or normative commitments. Such accounts might therefore be understood as updated versions of what Susan Wolf has called “real self views,” insofar as they attempt to ground (...) an agent’s responsibility for her actions and attitudes in the fact (when it is a fact) that they express who she is as a moral agent. As such, they seem to be open to some of the same objections Wolf originally raised to such accounts, and in particular to the objection that they cannot license the sorts of robust moral assessments involved in our current practices of moral responsibility. My aim in this paper is to try to respond to this challenge, by clarifying the kind of robust moral assessments I take to be licensed by (at least some) non-volitional accounts of responsibility and by explaining why these assessments do not in general require the agent to have voluntary control over everything for which she is held responsible. I also argue that the limited applicability of the distinction between “bad agents” and “blameworthy agents” on these accounts is in fact a mark in their favor. (shrink)

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the (...) grounds of duties to pay damages. (shrink)

Criminal law commonly requires judges and juries to decide whether defendants acted reasonably. Nevertheless, issues of reasonableness fall into two distinct categories: (1) where reasonableness concerns events and states, including risks of which an actor is conscious, that can be justly assessed without regard to the actor’s individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actor’s capacities. This distinction is significant because, while the reasonable person by which (...) category-1 cases are assessed is a disembodied and impersonal ideal that consists of nothing but the uncompromising values of the jurisdiction, the reasonable person by which category-2 cases are measured must necessarily incorporate some of an actor’s individual traits or risk blaming the blameless. Courts and commentators have thus far approached the task of individualizing or subjectivizing reasonableness in category 2 by trying to determine in advance which individual traits are generally relevant and which are not. I propose an alternative approach that, in addition to applying to negligence and voluntary manslaughter cases alike, derives its content from the social practice of blaming. I propose that a reasonable person in category-2 cases consists of every physical, psychological, and emotional trait an actor possesses, with one exception—the exception being that he possesses proper respect for the values of the people of the state as reflected and incorporated in the statute at hand. (shrink)

The dispositional analysis of sentences ascribing powers and abilities to things and people runs into many difficulties. The situation is especially complex and confusing when such ascriptions are brought to bear on particular occasions, and carry some implication about the opportunities available on those occasions. Some of these difficulties are produced by superficial confusions, but I shall concentrate on those that beset any version of the dispositional analysis. Three difficulties will be examined, one presented by Lehrer, and two by Austin.Lehrer (...) presents his difficulty as a refutation of Moore's dispositional analysis of “X could have acted otherwise”, which was “If X had chosen, he would have acted otherwise”. I shall introduce his objection by relating it to the distinctions drawn in Part I.· Expressed in my terminology, his point is that Moore's analysis presupposes that choosing is not an S-factor, and yet it might conceivably be an S-factor. (shrink)

Research Articles Michael S. Moore, Social Philosophy and Policy, FirstView Article.

The article examines what has come to be known as "the risk analysis" in Anglo-American tort law and contract law. The risk analysis essentially consists of: viewing negligence as a relational concept, so that a defendant is never simply negligent tout cour, but is negligent only with respect to certain persons and certain harms — other harms suffered by other persons are said not to be "within the risk" that makes the defendant negligent; and the supplanting of proximate cause doctrine (...) with doctrines of duty, the duty question being determined by the question of whether a certain person and a certain harm are within the risk that makes a defendant negligent. The article aims to explode entirely the risk analysis. After beginning with an examination of the historical roots of the risk analysis, we then seek to show that the risk analysis is: conceptually incoherent because it seeks to isolate a risk that makes someone negligent; normatively undesirable because it allows quite blameworthy actors not to pay for the harms they culpably cause; and descriptively inaccurate of the cases decided on the more traditional, proximate cause bases. (shrink)

Claims about agents’ abilities—practical abilities—are common in theliterature on free will, moral responsibility, moral obligation, personalautonomy, weakness of will, and related topics. These claims typicallyignore differences among various kinds or levels of practical ability. Inthis article, using ‘A’ as an action variable, I distinguish among threekinds or levels: simple ability toA; ability toAintentionally; and a morereliable kind of ability toAassociated with promising toA. I believe thatattention to them will foster progress on the topics I mentioned. Substan-tiating that belief—by making progress (...) on these topics in light of suchattention—is a project for other occasions. My aim here is to lay a partialfoundation for that project. (shrink)

In this paper I offer an account of the meaning of must and can within the framework of possible worlds semantics. The paper consists of two parts: the first argues for a relative concept of modality underlying modal words like must and can in natural language. I give preliminary definitions of the meaning of these words which are formulated in terms of logical consequence and compatibility, respectively. The second part discusses one kind of insufficiency in the meaning definitions given in (...) the first part, which arise from the ex falso quodlibet paradox of logical consequence. In stepwise fashion, I make an attempt to avoid most of the consequences of this paradox for the meaning definitions of must and can. (shrink)

Ordinary morality judges agents blameworthy for negligently produced harms. In this paper I offer two main reasons for thinking that explaining just how negligent agents are responsible for the harms they produce is more problematic than one might think. First, I show that negligent conduct is characterized by the lack of conscious control over the harm, which conflicts with the ordinary view that responsibility for something requires at least some conscious control over it. Second, I argue that negligence is relevantly (...) indistinguishable from inadvertence, which is ordinarily thought to excuse agents from responsibility. I argue that the parallels between negligence and inadvertence suggest that negligent agents are not responsible for the harms they produce, while proposing an alternative model for distinguishing between negligence and inadvertence that does justice to our intuitions. (shrink)

In this paper I shall define a thesis I shall call ' determinism ', and argue that it is incompatible with the thesis that we are able to act otherwise than we do. Other theses, some of them very different from what I shall call ' determinism ', have at least an equal right to this name, and, therefore, I do not claim to show that every thesis that could be called ' determinism ' without historical impropriety is incompatible with (...) free will. I shall, however, assume without argument that what I call ' determinism ' is legitimately so called. In Part I, I shall explain what I mean by ' determinism '. In Part II, I shall make some remarks about 'can'. In Part III, I shall argue that free will and determinism are incompatible. In Part IV, I shall examine some possible objections to the argument of Part III. I shall not attempt to establish the truth or falsity of determinism, or the existence or nonexistence of free will. (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)

In this article, I try to do two things. First I analyse critically the suggestion that the principles of criminal culpability can be explained by reference to a single, all-encompassing concept, such as “defiance of the law”. I then go on to explain the foundations of criminal culpability by reference to three interlocking theories — the capacity theory, the character theory, and the agency theory. I conclude that even these three theories may not be sufficient to explain the complex structure (...) of culpability, which is shaped as much by shared cultural understanding as by moral theory. (shrink)

In diesem Beitrag werde ich die Wege untersuchen, auf denen Moraltheoretiker philosophischen Sinn in der These entdecken könnten, daß das Gesetz die moralische Schlechtigkeit von Personen dadurch tolerieren sollte, daß es den Bürgern Rechte zuerkennt, moralisch Falsches zu tun. Dabei vernachlässige ich Fälle, in denen diese Toleranz deshalb angemessen erscheint, weil die Moralität des in Rede stehenden Verhaltens ungewiss oder jedenfalls unter gleichermaßen vernünftigen Personen hinreichend umstritten ist, so daß die Gewährung von Freiheit auch für den Staat als das angemessene (...) Mittel erscheint, die Problematik zu lösen. Stattdessen werde ich mich auf Fälle konzentrieren, in denen der Gesetzgeber davon überzeugt ist, daß das betreffende Verhalten tadelnswert ist, so daß weder Zweifel noch Uneinigkeit über die Bewertung des Verhaltens als ausreichende Gründe dafür genannt werden können, daß der Staat sich der Sache nicht annimmt.Wie ich im 1. Teil zeige, kann sowohl von konsequentialistischen als auch von deontologischen Moraltheorien angenommen werden, daß sie unmoralisches Verhalten erlauben, das keine Verletzung von konsequentialistischen bzw. deontologischen Pflichten darstellt. Regel-Konsequentialisten verlangen Toleranz für akt-konsequentialistisch betrachtete Verstöße, sofern sie im Rahmen ihrer Regeln erfolgen; und Deontologen fordern Toleranz für kategorisch erlaubte Taten, die sub-optimale Konsequenzen haben. Im Hinblick darauf, daß wir eine Tugenpflicht haben könnten, uns zu Personen zu entwickeln, die deontologische Erlaubnisse nicht mißbrauchen, untersuche ich eine Reihe von Gründen, die es nahe legen, daß diejenigen, die sich einer Moraltheorie der Tugendpflichten verbunden fühlen, die die Besorgnis um Handlungen durch eine Besorgnis um den Charakter der Person ersetzt, gleichwohl gute Gründe dafür hat, die Kultivierung eines guten Charakters außerhalb der Reichweite des Staates zu belassen.Die Problematik wird schwieriger, wenn wir von den unmoralischen Handlungen, die keine Pflichten verletzen , zu den unmoralischen Handlungen übergehen, die solche Pflichten verletzen. Kann ein Konsequentialist sich damit einverstanden erklären, daß der Staat Personen die Freiheit zugesteht, etwas zu tun, was konsequentialistisch verboten ist? Kann ein Deontologe nicht nur die Freiheit, Erlaubnisse zu missbrauchen, verteidigen, sondern auch die Freiheit, kategorische Verbote zu verletzen? Im 2. Teil des vorliegenden Beitrages vertrete ich die These, daß es durchaus einleuchtende Gründe dafür geben mag, daß Freiheit entweder intrinsisch oder instrumentell gut ist, um andere intrinsisch gute Dinge zu bewirken, in welchem Fall Konsequentialisten gute Gründe dafür haben, daß der Staat grundsätzlich moralische Schlechtigkeit tolerieren sollte, oder sie zumindest dann tolerieren sollte, wenn dies der Preis dafür ist, größeres Gutes zu befördern. Im 3. Teil behaupte ich, daß selbst unsere beste deontologische Theorie Maximen in sich aufnehmen kann, die es dem Gesetzgeber kategorisch verbieten, den Bürgern die Verletzung kategorischer Maximen zu verbieten. So kann es dem Gesetzgeber z.B. verboten sein, in die Privatsphäre der Bürger einzugreifen, um das Fehlverhalten von Bürgern zu ermitteln. Oder es kann dem Gesetzgeber auferlegt sein, nicht etwas zu verbieten, wenn er dieses Verbot nicht gegenüber allen Bürgern durchsetzen kann.Das Ergebnis meiner Analyse ist, daß die Theorie liberaler Toleranz nicht von der Behauptung vernünftigen Zweifels und der Uneinigkeit zwischen Gesetzgeber und Bürgern abhängt, wie es unter liberalen Politikwissenschaftlern oftmals voraus-gesetzt wird. Selbst dann, wenn vernünftige Personen sich darüber einig sind, daß eine bestimmte Art von Verhalten unmoralisch ist, und selbst dann, wenn bei dem Gesetzgeber kaum Zweifel an der Unmoralität des Verhaltens vorhanden sind, gibt es doch schwerwiegende moralische Gründe dafür, weshalb der Gesetzgeber moralisch verpflichtet sein kann, die Begehung unmoralischer Handlungen zu tolerieren. In this article I explore the ways in which moral theorists might make philosophical sense of the claim that the law ought to tolerate moral wickedness by according citizens legal rights to do moral wrongs. I set aside cases in which tolerance is proper because the morality of the conduct in question is uncertain or sufficiently contested by equally reasonable persons so as to make liberty the appropriate default solution for the state. Instead, I confine my inquiry to cases in which lawmakers are confident that the conduct in question is blameworthy, so that doubt and disagreement cannot be said to be sufficient reasons for staying the hand of the state. As I argue in Part I, both consequentialist and deontological moral theories can be thought to permit immoralities that are not violations of consequentialist or deontological obligations. Rule-consequentialists require tolerance of act-consequential wrongs that are done in the name of their rules; and deontologists require tolerance of consequentially sub-optimal deeds that are categorically permitted. While we may have aretaic obligations to become the kinds of persons who do not abuse deontological permissions, I explore a series of reasons to think that those who subscribe to an aretaic moral theory that substitutes concerns for character for concerns for actions will nevertheless have good grounds to place the cultivation of good character beyond the scope of the state. The question is harder when we move from immoralities that do not violate obligations to immoralities that do violate such obligations. Can consequentialists make sense of the state according persons liberty to do what is consequentially prohibited? Can deontologists defend not just the liberty to misuse permissions but the liberty to violate categorical prohibitions? I argue in Part II that there may be sound arguments for why liberty is either intrinsically good or instrumentally good for the achievement of other intrinsically good things, in which case, consequentialists have sounds reasons for supposing that the state ought to tolerate wickedness, tu cour , or tolerate it when it is a price that purchases greater goods. And I argue in Part III that our best deontological theory may contain within it maxims that categorically prohibit legislators from prohibiting violations of categorical maxims on the part of citizens. For example, they may be enjoined from invading citizens' privacy in the ways required to detect citizens' wrongdoing; or they may be enjoined not to prohibit what they cannot equally enforce against all. The upshot of my analysis is that a theory of liberal tolerance does not depend upon claims of reasonable doubt and disagreement amongst lawmakers and citizens, as is so often supposed amongst liberal political theorists. Even if reasonable persons agree that a kind of conduct is immoral, and even if lawmakers are in little doubt about its immorality, there are powerful moral reasons why lawmakers might be morally obligated to tolerate its persistence. (shrink)