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)

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)

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)

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)

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)

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.

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

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)

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?

Philosophers often claim that forgiveness is a paradoxical phenomenon. I here examine two of the most widespread ways of dealing with the paradoxical nature of forgiveness. One of these ways, emblematized by Aurel Kolnai, seeks to resolve the paradox by appealing to the idea of repentance. Somehow, if a wrongdoer repents, then forgiving her is no longer paradoxical. I argue that this influential position faces more problems than it solves. The other way to approach the paradox, exemplified here by the (...) work of Jacques Derrida, is just too obscure to be by itself helpful. Yet, I argue that what I take to be its spirit is on the right track. I recommend distinguishing between the definition and the justification of forgiveness, and also between forgiveness understood as a mental phenomenon and an overt, communicative act. These distinctions are not given their due in the specialized literature, and I expose the nefarious consequences of this neglect. By focusing on forgiveness as a mental phenomenon I seek to analyze the root of the talk of paradoxes which surrounds the discussion of forgiveness. Finally, I present an analysis of forgiveness as a pure mental phenomenon, and argue that this analysis is the most important step in understanding forgiveness in any other sense. While my analysis reveals interesting aspects of forgiveness, it reveals, too, that forgiveness is not quite as paradoxical after all. (shrink)

The present volume contains articles of well-known representatives of the Meaning-Text Theory (MTT) and other related linguistic theories. Founded by I. Mel'cuk and A. Zholkovsky in the sixties in Moscow, MTT soon became known in the West as a “prominent outsider” theory. The picture changed since then, though. MTT gained importance in several areas of linguistics and computational linguistics. It influenced the design of new grammar formalisms such as Dependency Tree Grammars. Also, specific parts of MTT have been directly overtaken (...) into other theories; consider, for example, the work on integrating Lexical Functions into Pustejovsky's Generative Lexicon. The present volume is a further convincing demonstration of MTT's liveliness and relevance to the field's “burning” issues. The focus of the volume is on semantics, semantic representation and relation of semantics to surface in MTT. Six out of eight articles (Polguère; Escalier & Fournier; Paducheva; St.-Germain; Beck; Bogulavsky) deal with problems related to these topics, while the last two articles of the volume (Sgall and Rambow; Joshi) throw a bridge between MTT, or, more precisely, between dependency-based theories of which MTT is one instantiation, and other linguistic theories. (shrink)

What is the relationship between the permissibility/impermissibility of the part and the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the contrived defense and deterrent threat (...) doctrines. The latter doctrine concerns whether a prima facie impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The contrived defense doctrine addresses the permissibility of an actor who contrives or culpably causes the conditions of her own defense. This essay considers the claim—advanced by Claire Finkelstein and Leo Katz—that the contrived defense and deterrent threat doctrines are sufficiently related such that the preferable approach to each doctrine informs and supports the preferable approach to the other. In each, the permissible/impermissible status of the whole governs the status of the part. Regarding contrived defenses, the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. And regarding deterrent threats, the permissibility of the actor’s whole course of conduct renders the otherwise impermissible constituent parts also permissible. This essay challenges the claimed linkage between the contrived defense and deterrent threat doctrines by proposing hypothetical situations in which the claimed parallel doctrines collapse into each other. As a result, the application of the preferred approaches to each doctrine generates a contradiction. (shrink)

We develop an evidence-based theoretical account of how widely shared cultural beliefs about gender, race, and class intersect in interpersonal and other social relational contexts in the United States to create characteristic cultural “binds” and freedoms for actors in those contexts. We treat gender, race, and class as systems of inequality that are culturally constructed as distinct but implicitly overlap through their defining beliefs, which reflect the perspectives of dominant groups in society. We cite evidence for the contextually contingent interactional (...) “binds” and freedoms this creates for people such as Asian men, Black women, and poor whites who are not prototypical of images embedded in cultural gender, race, and class beliefs. All forms of unprototypicality create “binds,” but freedoms result from being unprototypical of disadvantaging rather than advantaging statuses. (shrink)

In light of the sharp linguistic turn philosophy has taken in this century, this collection provides a much-needed and long-overdue reference for philosophical discussion. The first collection of its kind, it explores questions of the nature and existence of linguistic objects--including sentences and meanings--and considers the concept of truth in linguistics. The status of linguistics and the nature of language now take a central place in discussions of the nature of philosophy; the essays in this volume both inform these discussions (...) and lay the groundwork for further examination. (shrink)

Our understanding of the nature and processing of figurative language is central to several important issues in cognitive science, including the relationship of language and thought, how we process language, and how we comprehend abstract meaning. Over the past fifteen years, traditional approaches to these issues have been challenged by experimental psychologists, linguists, and other cognitive scientists interested in the structures of the mind and the processes that operate on them. In Figurative Language and Thought, internationally recognized experts in the (...) field of figurative language, Albert Katz, Mark Turner, Raymond W. Gibbs Jr., and Cristina Cacciari, provide a coherent and focused debate on the subject. The book's authors discuss a variety of fundamental questions, including: What can figures of speech tell us about the structure of the conceptual system? If and how should we distinguish the literal from the nonliteral in our theories of language and thought? Are we primarily figurative thinkers and consequently figurative language users or the other way around? Why do we prefer to speak metaphorically in everyday conversation, when literal options may be available for use? Is metaphor the only vehicle through which we can understand abstract concepts? What role do cultural and social factors play in our comprehension of figurative language? These and related questions are raised and argued in an integrative look at the role of nonliteral language in cognition. This volume, a part of Counterpoints series, will be thought-provoking reading for a wide range of cognitive psychologists, linguists, and philosophers. (shrink)

A collection of articles, some of which appeared previously. Partial contents:.

Chomsky's criticism of Bloomfieldian structuralism's conception of linguistic reality applies equally to his own conception of linguistic reality. There are too many sentences in a natural language for them to have either concrete acoustic reality or concrete psychological or neural reality. Sentences have to be types, which, by Peirce's generally accepted definition, means that they are abstract objects. Given that sentences are abstract objects, Chomsky's generativism as well as his psychologism have to be given up. Langendoen and Postal's argument in (...) The Vastness of Natural Languages to show that there are more than denumerably many sentences is flawed. But, with the view that sentences are abstract objects, the flaws can be corrected. Once psychologism and generativism are abandoned, the revolution against Bloomfieldian structuralism can be brought to completion and linguistics can be put on a sound philosophical basis. (shrink)

This paper examines and compares the ontological and axiological character of artefacts – human creations – with nonhuman natural entities. The essential difference between artefacts and natural entities is that the former are always the result of human intention and design, while the latter are independent of human purpose. Artefacts have functions ; natural entities do not. The connection to human intentional purpose implies a different kind of value for artefacts. Artefacts are evaluated solely by their instrumental use, while natural (...) entities can be appreciated for their independent and autonomous existence. This distinction has normative implications, especially for environmental policy and the development of an environmental ethic. Intervention in natural processes, even to 'improve' nature, must be limited, for human action changes natural entities and systems into artefacts. A moral imperative requires respect for the autonomy of nature and resistance to the human domination of nature. (shrink)

In this chapter, Dahan Katz defends relational conceptions of retribution and desert. She clarifies the ways in which such relational conceptions avoid major worries associated with retributive theory, while addressing further worries that arise distinctively with respect to such an approach. In doing so, Dahan Katz provides further defense of the response-retributive theory of punishment that she has proposed elsewhere, while defending a wider set of views within the retributive tradition.

This Article takes an experimental approach to test whether the salience of the law as a system that governs an interaction affects people’s preferences. I find that when the law is made salient in an interaction people’s preferences are altered: they express more future-oriented preferences and donate less money to charity, as compared to when the law is not salient in an otherwise identical interaction. When the law is salient in an interaction people also prefer ‘products’ over experiences, but this (...) gap is only marginally significant. The findings suggest that the framing of an interaction as legal tends to evoke cultural scripts and implicit rules of behavior (“common knowledge”) that incorporate the shared assumptions in society about the law. In response, participants interpret the interaction as more rational and instrumental and express preferences accordingly. (shrink)

This paper offers a response retributive theory of punishment, taking the role of the punisher as well as the relations between the parties to punishment to be central to retributive justification. It proposes that punishment is justified in terms of the ethics of appropriate response, and more precisely, in terms of the duty agents have to dissociate from the devaluation inherent in the culpable wrongdoing of others. The paper demonstrates that on such account, while the harm and suffering involved in (...) punishment are rightly imposed, they are not good, grounding a further duty to mitigate our retributive practices. The result is a moderate vision of retributive justification, which has the resources to justify, not only criminal punishment, but punishment as imposed across a wide variety of relations: private, institutional and political. (shrink)

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)

We argue for the rejection of an anthropocentric and instrumental system of normative ethics. Moral arguments for the preservation of the environment cannot be based on the promotion of human interests or goods. The failure of anthropocentric arguments is exemplified by the dilemma of Third World development policy, e.g., the controversy over the preservation of the Amazon rain forest. Considerationsof both utility and justice preclude a solution to the problems of Third World development from the restrictive framework of anthropocentric interests. (...) A moral theory in which nature is considered to be morally considerable in itself can justify environmental policies of preservation, even in the Third World. Thus, a nonanthropocentric framework for environmental ethics should be adopted as the basis for policy decisions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Levinas—Between Philosophy and Rhetoric:The “Teaching” of Levinas’s Scriptural ReferencesClaire Elise KatzIn an interview titled "On Jewish Philosophy," Emmanuel Levinas illuminates the connection that he sees between philosophical discourse and the role of midrash in interpreting the Hebrew scriptures. His interviewer immediately expresses surprise at Levinas's comments that suggested he saw the traditions of philosophy and biblical theology as in some sense harmonious (quoted in Robbins 2001, 239). Levinas responds (...) by elaborating on this connection he sees. For him, the lived experience of Judaism is above all a sense of belonging to humanity and, in turn, to a supreme order of responsibility (240). Although his intellectual life focused on the sacred texts of Judaism, this life included non-Jewish books, which he believed expressed a similar concern or a similar responsibility—a concern for the meaning of life. This list of such books includes Hamlet, Macbeth, King Lear, The Miser, and The Misanthrope, in addition to the novels of Tolstoy and Dostoyevsky.In Levinas's view, these novels are not exercises of philosophyper se; as mentioned above, they express the same concerns that occupy philosophy, but they express these concerns in a different idiom. They do not offer a philosophical argument; instead, they use figurative language and literary narrative to convey their messages. By drawing this distinction between philosophy and literature, Levinas appears to have divided the written word into two categories: philosophy, on the one hand, and literary texts, on the other. Yet readers of his philosophical work cannot help but notice his frequent references to literary sources, including the numerous citations taken from the Jewish holy texts. His use of these citations encourages us to ask how we are to classify these books in general and how to classify, in particular, the Scriptures and the holy texts in Judaism. With regard to the holy texts in Judaism, should we classify them as simply a [End Page 159] literary device? Or, do they constitute a third category that falls somewhere in between philosophy and rhetoric? If the latter, then what is their status relative to these larger categories?Although Levinas insists on separating his two bodies of work—his philosophical writings and his Jewish writings—the distinction between them becomes increasingly blurred with his frequent introduction of citations from the Hebrew texts into his philosophy and by inflecting his Jewish writings with philosophical interpretations.1 In what follows, I examine the unique and significant role of Scriptural references within Levinas's philosophical work. My claim is that the Scriptural references are in fact rhetorical, but not "simply" rhetorical; they do pedagogical work for Levinas that other literary devices cannot accomplish. They engage his readers such that they are invited to grapple with the Scriptures in a manner potentially unfamiliar to them, and this invitation, in turn, has the pedagogical effect of attuning his readers to his texts and to his ethical project—even, one might say, to the other—and inviting them into an experience of transcendence.In the interview mentioned above, Levinas tells his interlocutor that for the Jews the Scriptures do not exist apart from the interpretations that accompany them. These interpretations are found in the collections of midrashim and the Talmud. One need know only a little bit about Hebrew and the construction of the Hebrew texts in order to see why these interpretations are significant. There are three grammatical concerns with the Hebrew language: first, biblical Hebrew does not contain vowels, though it does employ vowel aspirations; second, it is a language based on root letter combinations, and the meaning of these combinations alters, depending on the vowel aspirations that are inserted. For example, "Kiddish," the Hebrew blessing over wine, is based on a combination of Hebrew letters that are transliterated into English as KDSH. The blessing changes if we insert different vowel aspirations: "Kaddish" is the blessing said for those who have died. Third, biblical Hebrew lacks punctuation. Owing to the absence of vowels and punctuation, interpretation difficulties immediately emerge. The rabbinic model of midrash addresses these problems by offering multiple explanations and interpretations.Levinas, however, is not concerned with this aspect of the written language. Rather, he emphasizes... (shrink)

Holistic accounts of the natural environment in environmental ethics fail to stress the distinction between the concepts of comnlunity and organism. Aldo Leopold’s “Land Ethic” adds to this confusion, for it can be interpreted as promoting either a community or an organic model of nature. The difference between the two concepts lies in the degree of autonomy possessed by constituent entities within the holistic system. Members within a community are autonomous, while the parts of an organism are not. Different moral (...) conclusions and environmental policies may result from this theoretical distinction. Treating natural entities as parts of an organism downgrades their intrinsic value as individual natural beings, since the only relevant moral criterion in an organic environmental ethic is the instrumental value that each natural entity has for the system. This ethic allows instances of the “substitution problem”-the replacement of one entity in an ecosystem by another provided that the overall functioning of the system is notharmed. However, since substitution violates environmentalist principles, for example, calling for respect for the integrity of the entities in a natural system, an organic environmental ethic must be rejected. A community model focuses on both the functional value and the autonomous intrinsie value of natural entities in a system. A community environmental ethic thus avoids the substitution problem. (shrink)