This book continues and revises the ideas of justice as fairness that John Rawls presented in _A Theory of Justice_ but changes its philosophical interpretation in a fundamental way. That previous work assumed what Rawls calls a "well-ordered society," one that is stable and relatively homogenous in its basic moral beliefs and in which there is broad agreement about what constitutes the good life. Yet in modern democratic society a plurality of incompatible and irreconcilable doctrines--religious, philosophical, and moral--coexist within the (...) framework of democratic institutions. Recognizing this as a permanent condition of democracy, Rawls asks how a stable and just society of free and equal citizens can live in concord when divided by reasonable but incompatible doctrines? This edition includes the essay "The Idea of Public Reason Revisited," which outlines Rawls ' plans to revise _Political Liberalism,_ which were cut short by his death. "An extraordinary well-reasoned commentary on _A Theory of Justice_...a decisive turn towards political philosophy." --_Times Literary Supplement_. (shrink)

This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the (...) end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law. (shrink)

This first volume contains discussions of the brain, methods for analyzing behavior, thought, consciousness, attention, association, time, and memory.

With a new chapter This new edition of Herbert Fingarette's classic study in philosophical psychology now includes a provocative recent essay on the topic by ...

In this book, T. M. Scanlon offers new answers to these questions, as they apply to the central part of morality that concerns what we owe to each other.

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of criminalisation, which can (...) now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. (shrink)

This paperback edition contains a preface placing the book in the context of recent work in the area.

The Twentieth Century has seen a dramatic rise in the use of probability and statistics in almost all fields of research. This has stimulated many new philosophical ideas on probability. _Philosophical Theories of Probability_ is the first book to present a clear, comprehensive and systematic account of these various theories and to explain how they relate to one another. Gillies also offers a distinctive version of the propensity theory of probability, and the intersubjective interpretation, which develops the subjective theory.

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)

"This is an important book, and no one interested in issues which touch on the free will will want to ignore it."--Ethics. In this stimulating and thought-provoking book, the author defends the thesis that free will is incompatible with determinism. He disputes the view that determinism is necessary for moral responsbility. Finding no good reason for accepting determinism, but believing moral responsiblity to be indubitable, he concludes that determinism should be rejected.

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)

With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law. "_Bad Acts and Guilty Minds_... revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale founded in basic notions of fairness and reason.... It will help lawyers to better serve their clients and the society that permits attorneys to hang out (...) their shingles."—Edward N. Costikyan, _New York Times Book Review_. (shrink)