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

Four principal papers and a total of 43 peer commentaries on the evolutionary origins of morality. To what extent is human morality the outcome of a continuous development from motives, emotions and social behaviour found in nonhuman animals? Jerome Kagan, Hans Kummer, Peter Railton and others discuss the first principal paper by primatologists Jessica Flack and Frans de Waal. The second paper, by cultural anthropologist Christopher Boehm, synthesizes social science and biological evidence to support his theory of how our hominid (...) ancestors became moral. In the third paper philosopher Elliott Sober and evolutionary biologist David Sloan Wilson argue that an evolutionary understanding of human nature allows sacrifice for others and ultimate desires for another's good. Finally Brian Skyrms argues that game theory based on adaptive dynamics must join the social scientist's use of rational choice and classical game theory to explain cooperation. (shrink)

Pleasure, in the inclusive usages most important in moral psychology, ethical theory, and the studies of mind, includes all joy and gladness — all our feeling good, or happy. It is often contrasted with similarly inclusive pain, or suffering, which is similarly thought of as including all our feeling bad. Contemporary psychology similarly distinguishes between positive affect and negative affect.[1..

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)

Why does the law spurn win-win transactions? -- Things we can't consent to, though no one knows why -- A parable -- Lessons -- The social choice connection -- Why is the law so full of loopholes? -- The irresistible wrong answer -- What is wrong with the irresistible answer? -- The voting analogy -- Turning the analogy into an identity -- Intentional fouls -- Why is the law so either/or? -- The proverbial rigidity of the law -- Line drawing (...) as a matter of life and death -- Why don't we punish all we condemn? -- The undercriminalization problem -- Multicriterial ranking and the undercriminalization problem -- Final thoughts. (shrink)

This is a review of Larry Alexander and Kim Ferzan’s _Reflections on Crime and Culpability_, a sequel to the authors’ _Crime and Culpability_. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing legal (...) theory, some of which are explored in this essay. (shrink)

There is a common refrain in the literature on punishment that presumes the mutual exclusivity of defending retribution and adopting a humanistic or welfare-oriented outlook. The refrain, that if we want to be humane, or care about human welfare, we must abandon retributive punishment, anger, and resentment is readily repeated, endorsed, and relied upon. This article suggests that this opposition is false: retribution and welfare-orientation can not only be endorsed concomitantly, but are complimentary projects, and may even be grounded in (...) the same normative basis, such that if we endorse one we are already committed to ideas that ground reason to care about the other.My primary target will be claims that aim to undermine retributivism by demonstrating the desirability of welfare-orientation. If both can live together, demonstrating the attractiveness of one goes nowhere toward displacing the other. Further, establishing this claim invites further inquiry into classic questions about the “barbaric,” or “morally repugnant” credentials of retributivism. Confronting these claims will elucidate the consistency of adopting both retributive and welfare-oriented views, which, I suggest, can be jointly adopted and pursued. (shrink)

I develop and defend a hedonistic view of the constitution of human subjectivity, agency and value, while disassociating it from utilitarian accounts of morality and from the view that only pleasure is desired. Chapter One motivates the general question, "What really is of value in human living?", and introduces evaluative hedonism as an answer to this question. Chapter Two argues against preference satisfaction accounts of pleasure and of welfare, and begins the explication and defense of the hedonist's conception of pleasure (...) as immediate experiencing liked for its own sake in its experiential moment, and which obtains or not in an experiential moment regardless of what obtains at other times. Chapter Three begins the task of finding a motivational theory that will support, or at least cohere with, evaluative hedonism. I here work toward my own position by discussing, criticizing and distinguishing some aspects of the views of earlier hedonistic writers, both ancient and modern. Chapter Four further explains the hedonist's conception of pleasure, and treats some contextualist objections to its tenability suggested by Plato, Moore and Anscombe. In the course of answering these objections, the view of consciousness belonging to the hedonist's view of mind is contrasted with that which the objections presuppose. Chapter Five first outlines the general kind of hedonistic view resulting from the work of the earlier sections, and then develops a specific view of this kind, drawing on contemporary work in philosophy, psychology and psychobiology. The result is an account of action, and of the kind of attention and consciousness connected with it, in which pleasure has a central organizing role. Such an account, if sustained and filled out by ongoing scientific work, would further motivate, and cohere with, evaluative hedonism and the related contention that the dimension of subjectivity in which human value consists is in the lives of human beings and other higher vertebrates much the same. (shrink)

This essay offers a critique of Larry Temkin’s seminal new book, Rethinking the Good, at the heart of which is the highly counterintuitive claim that all things considered judgments are not transitive. I evaluate Temkin’s claims through the lens of social choice theory, pursue some of its larger implications and applications, and conclude with a very general worry having to do with the intimate connection between transitivity and logical consistency, namely whether, if Temkin is right, this would not bring all (...) moral reasoning to an abrupt halt. (shrink)

This article analyzes the question of how the size of bribes should impact criminal sanctions. In contrast to the commonly held view that punishment should increase with the size of the bribe, we argue to the contrary: that the punishment of the bribee should decrease with the size of the bribe. Our conclusion is based both on a philosophical argument and an economic argument. We argue that all else being equal, as an agent’s reservation price for selling public interests decreases, (...) the culpability of the agent willing to receive a bribe increases. In addition, from an economic perspective, the expected social harm of an official acting with a low reservation price for bribes is much greater than one acting with a high reservation price: both the susceptibility of being bribed as well as the potential for social harm is much greater when the reservation price is low. (shrink)

Role morality refers to the special obligations and rights that are associated with occupying certain professional roles—lawyer, doctor, journalist, soldier and others. There are a number of moral puzzles peculiar to this domain. To what extent can someone whose role involves acting in someone else’s behalf avoid being blamed for aiding him in actions he would be blamed for if acting outside that role? What is one to make of situations in which the performance of one’s role seems to call (...) for the actors to engage in conflicting behavior, for example, two lawyers representing two disputing clients? Is it coherent to speak of some roles as involving obligations to institutions rather than to people? In this chapter the problems are spelled out, the current debate surveyed and tentatively different conclusions from the established ones are suggested. (shrink)

Depue & Morrone-Strupinsky's (D&M-S's) language suggests that, unlike Kent Berridge, they may allow that the activity of a largely subcortical system, which is presumably often introspectively and cognitively inaccessible, constitutes affectively felt experience even when so. Such experience would then be phenomenally conscious without being reflexively conscious or cognitively access-conscious, to use distinctions formulated by the philosopher Ned Block.

One can share Block's aim of distinguishing “phenomenal” experience from cognitive function and agree with much in his views, yet hold that the inclusion of representational content within phenomenal content, if only in certain spatial cases, obscures this distinction. It may also exclude some modular theories, although it is interestingly suggestive of what may be the limits of the phenomenal penetration of the representational mind.

We characterize general constraints under which rational choices are characterized by asymmetric revealed preferences. A key feature of our main characterization result is expressed by the leveling axiom. We also consider the special case of a law-abiding decision maker who chooses optimally among legal options. We show that the law does not necessarily satisfy the leveling axiom and, therefore, transitivity adds empirical content to law-abiding choices.

The entrapment defense is a puzzle of long standing. One the one hand, we are offended by the government’s subjecting someone vulnerable to extreme temptation. It seems like something anyone might fall prey to. On the other hand, it is hard to explain why someone who actually commits, or attempts a crime, and who would be liable if anyone other than the government had tempted him, should escape punishment. His blameworthiness seems the same. This essay seeks to illuminate this puzzle (...) by showing how it parallels the long-standing debate surrounding the criminal law problem of the actio libera in causa—situations in which someone seeks to escape liability by contriving to put a certain defense in place, such as provoking his victim into attacking him, so that he can then kill him in self-defense. The parallels between the two problems do not serve to resolve either, but make them appear in a rather different light. (shrink)

This chapter contains sections titled: Why We Punish How We Punish What We Punish Whom We Punish Bibliography.

Interpreting VTA dopamine activity as a facilitator of affective engagement fits Depue & Collins's agency dimension of extraverted personality and also Watson's and Tellegen's (1985) engagement dimension of state mood. Serotonin, by turning down the gain on dopaminergic affective engagement, would permit already prepotent responses or habits to prevail against the behavior-switching incentive-simulation-driven temptations of the moment facilitated by fickle VTA DA. Intelligent switching between openly responsive affective engagement and constraint by long-term plans, goals, or values presumably involves environment-sensitive balancing (...) of these neuromodulators, such as socially dominant primates may show. (shrink)

Rolls's preliminary definitions of emotion and speculative restriction of consciousness, including emotional sentience, to humans, display behaviorist prejudice. Reinforcement and causation are not by themselves sufficient conceptual resources to define either emotion or the directedness of thought and motivated action. For any adequate definition of emotion or delimitation of consciousness, new physiology, such as Rolls is contributing to, and also the resources of other fields, will be required.

Der Aufsatz bietet einen Einblick in die Möglichkeiten, Normen zu umgehen - einer Praxis mit, wie gezeigt wird, langer Tradition. Die dargestellten Methoden reichen von einer Beeinflussung des Wissens des Täters, über das Heranziehen "anderer", seien es Menschen oder Maschinen, um die gewünschte aber verbotene Handlung vorzunehmen, bis hin zu Änderungen in den Kausalverläufen. Der Grund für diese Umgehungsmöglichkeiten liegt im Formalismus deontologischer Systeme, die im Gegensatz zu utilitaristischen Positionen gerade nicht auf die Folgen einer Handlung abstellen.

Negligence, the creation of an unjustifiable risk of harm, plays a pivotal role in both criminal and civil law. This article takes up two negligence-related problems unique to its role in the criminal law. The first has to do with its "harm" component, the second with its "unjustifiability" component. The first problem is why the criminal law distinguishes so sharply between negligent wrongdoing that results in harm and negligent wrongdoing that does not, when it does not distinguish equally sharply between (...) intentional wrongdoing that results in harm and intentional wrongdoing that does not. The answer has to do with a peculiar feature in the logic of intention and with the symmetric way we ascribe responsibility for blameworthy and praiseworthy actions. My second problem is why the criminal law judges the blameworthiness of negligent actions on the basis of the harm wrought rather than the gap between the harm wrought and the justification for risking it. The answer has to do with a more general feature of the criminal law, the refusal to recognize "partial defenses" and "partial offenses.". (shrink)

Human emotional experience is organized at multiple levels, only some of which are easily penetrable by or dependent on language. Affects connected with mammalian parental care seem involved in Anna Wierzbicka's example of the experience of Jesus in Gethsemane. However, such affects are not characterizable as she requires, using only NSM's short list of linguistic semantic universals. Following her methodology, even using an enriched NSM really exhaustive of linguistic semantic universals, may involve serious losses of cognitive opportunity. Specifically, it forecloses (...) any possibility of linking language with other cognitive resources to construct novel concepts, as may be needed to understand the deep biologically-based structure of emotion—which, after all, goes far deeper in us than language does. (shrink)

Libertarians believe certain things about rights and responsibilities, about when one person is to be held responsible for invading the rights of another. Libertarians also believe certain things about consent, about when someone should be held to a contract he has entered into. What they don't realize is that the first set of beliefs doesn't mix well with the second set of beliefs—that their intuitions about rights and responsibilities quite simply don't square with their intuitions about consent. Or so I (...) shall be trying to show in this essay. (shrink)

Libertarians believe certain things about rights and responsibilities, about when one person is to be held responsible for invading the rights of another. Libertarians also believe certain things about consent, about when someone should be held to a contract he has entered into. What they don't realize is that the first set of beliefs doesn't mix well with the second set of beliefs—that their intuitions about rights and responsibilities quite simply don't square with their intuitions about consent. Or so I (...) shall be trying to show in this essay. (shrink)

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such requirement (...) can be circumvented. (shrink)

You buy a lottery ticket and you lose. You are sorry, but you wouldn't dream of complaining. Why then do you feel entitled to complain in the following sorts of cases?

Editorial Introduction to ‘Evolutionary Origins of Morality: Cross-Disciplinary Perspectives’. The four principal papers presented here, with interdisciplinary commentary discussion and their authors’ responses, represent contemporary approaches to an evolutionary understanding of morality -- of the origins from which, and the paths by which, aspects or components of human morality evolved and converged. Their authors come out of no single discipline or school, but represent rather a convergence of largely independent work in primate ethology, anthropology, evolutionary biology, and dynamic systems modelling (...) on related problems, conjectures and tentative conclusions. In inviting contributions I deliberately made no attempt to define morality more sharply than common language and understanding have left it, including our ordinary responses to right and wrong, but not all of the very diverse thinking about this and other practical concerns -- and about what we should make of all these -- that ethics encompasses. This was not because of any lack of past definitions of morality, but because the history of controversy over these makes it advisable not to prejudge the question pending our inquiry's results. From these we may see some outlines of plausible answers begin to emerge, only a brief sketch of some of which I can attempt here, sampling the hypotheses, scientific support, critical discussion of this, and refinement of positions in authors’ responses. (shrink)

For every legal concept X, there are clear instances exemplifying an X and clear instances exemplifying a non-X. The cases that come before courts are those that seem to lie in between, being neither clearly an X nor clearly a non-X. It is tempting to think that, being in-between, they should receive an in-between treatment, that is, to the extent that they are an X they should be treated as an X. If they are sixty percent toward being an X, (...) they should get sixty percent of the treatment due an X. But this presupposes that in-between cases can be rank-ordered at least roughly according to the degree of their X-ness. This Article explains why that generally cannot be done and why courts therefore go for an either/or approach: something gets treated either as an X or as a non-X. The explanation is rooted in the kind of phenomena explored in the theory of social choice and multi-criterial decision-making. (shrink)