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)

Standards of reasonableness are pervasive in law. Whether a belief or conduct is reasonable is determined by reference to what a ?reasonable man? similarly situated would have believed or done in similar circumstances. Feminists rightly objected that the ?reasonable man? standard was gender?biased and worked to the detriment of women. Merely replacing the ?reasonable man? with the ?reasonable person? would not be sufficient, furthermore, to right this historic wrong. Rather, in a wide range of cases, feminist theorists and legal practitioners (...) urged instead a standard of reasonableness that reflects the perceptions of women, a perspective informed by women?s vulnerability and oppression. In this essay I examine the role of the ?reasonable woman? standard in two areas of law ? workplace sexual harassment and self?defense ? and argue that it is both legally and politically problematic. (shrink)

In this paper I am specifically concerned with a normative assessment, from the perspective of a principled criminal law theory, of norms criminalizing illegal immigration. The overarching question I will dwell on is one specifically regarding the way of using criminal law which is implied in the enactment of such kinds of norms. My thesis will essentially be that it constitutes a veritable abuse of criminal law. In two senses at least: first, in the sense that by criminalizing illegal immigration (...) criminal law puts a ban on (certain categories of) persons, rather than on their actions/omissions, in a way in which a principled criminal law should not do; and—second—in the sense that the criminalization of illegal immigrants represents a perversion of the criminal law, being a case in which criminal norms are (unjustifiably) used as means to attain extrapenal aims. (shrink)

This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the “evaluative judgements” expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects , and are not mere impulses which bypass cognition, it suggests the following criticisms of their analysis. First, the concept of an emotional “evaluative judgement” tends to elide the distinction between “judgements” that are (...) merely the sense of an emotion, and do not have the character of acts, and deliberative emotional judgements that do resemble acts and so properly fall within the corrective scope of the law. Second, intentional emotions are empowered by pre–intentional psychological resources which are less amenable than intentional states to the agent's conscious supervision: The traditional recognition of “infirmity” in mitigation of crimes uncharacteristic of the criminal's overall conduct towards others is justified by the unpredictable action of these pre–intentional elements and can survive the abandonment of the mechanistic conception of emotion. (shrink)

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain (...) aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance. (shrink)

This essay aims to establish two theses. First, hell is unjust. Second, God ought not (or perhaps cannot) impose hell on human beings. In support of these theses, Stephen Kershnar argues that human beings do not deserve hell because they either cannot cause an infinite amount of harm or are not responsible for doing so. Also, since humans don’t have infinitely bad characters, hell can’t be deserved on the basis of character. Since humans don’t deserve hell, God may not (or (...) perhaps cannot) impose unjust punishments and hence may not (or cannot) send or allow persons to go to hell. (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)

The slogan that criminal liability requires an ‘act’, or a ‘voluntary act’, is still something of a commonplace in textbooks of criminal law. There are, it is usually added, certain exceptions to this requirement— cases in which liability is in fact, and perhaps even properly, imposed in the absence of such an act: but the ‘act requirement’ is taken to represent a normally minimal necessary condition of criminal liability. Even offences of strict liability, for which no mens rea is required, (...) require an act: thus to the familiar slogan that actus non facit reum nisi metis sit rea we can add the prior, more fundamental slogan that mens non facit reum nisi actus sit reus ; before we ask whether a defendant acted with mens rea or fault, we must ask whether he committed a criminal act at all. (shrink)

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she (...) could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. (shrink)

In our day-to-day lives, we form responsibility judgements about one another – but we are imperfect beings, and our judgments can be mistaken. This paper suggests that we get things wrong not merely by chance, but predictably and systematically. In particular, these miscues are common when we are dealing with large gaps in social status and power. That is, when we form judgements about those who are much more or less socially powerful than ourselves, it is increasingly likely that “epistemic (...) distorters” will reliably disrupt our reasoning. In response to this situation, I argue for the introduction of a new norm concerning blame and social status: “Powerful Restraint.” This norm suggests that the socially powerful ought to blame the socially dispossessed less frequently, and that social pressure be applied to achieve that compliance. I argue that such a norm is justified given the pernicious down-stream moral effects of the up-stream epistemic distortion I describe. I defend it against objections that it suggests a normative solution to an epistemic problem, that it is paternalistic, and that it involves a kind of disrespect to the less socially powerful. (shrink)

There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a ‘character’ based approach in criminal law is necessarily illiberal and violates the state’s commitment to political (...) neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd’s characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes. (shrink)

Legal theorists commonly employ a distinction between justification defenses and excuse defenses, but there are significant theoretical disagreements about the nature of the distinction as well as about what the distinction entails. This dissertation is concerned with finding the best way to describe the distinction between the moral concepts of justification and excuse that underlie the concepts employed by legal theorists. Chapter 1 begins by examining moral defenses in general, with emphasis on their purpose, nature, function, and epistemology. Chapter 2 (...) critically examines many of the traditional theoretical assumptions made about justification and excuse in the literature with the goal of winnowing them down to an uncontroversial core that can provide the foundation for a fuller, more specific account. Chapter 3 examines the ordinary language meaning of the words "justification" and "excuse" in order to identify any analytic constraints on what a correct theoretical account of justification and excuse may legitimately include. Finally, Chapter 4 offers and defends a reductive theory of justification and excuse which I call "the praise/blame theory." This theory identifies justified acts with those prima facie wrongful acts for which the actor is morally praiseworthy and excused acts with those prima facie wrongful acts for which the actor is merely not to blame. This simple account is consistent with the logical form of moral defenses, requires minimal elaboration on the terms' ordinary language content, avoids the conceptual mistakes that plague more traditional theories, and has the potential help resolve nagging theoretical issues in related fields. (shrink)

In this chapter, I propose the mechanism of cognitive enhancement based on studies of cognitive-enhancing drugs and behavioral training. I argue that there are mechanistic differences between cognitive-enhancing drugs and behavioral training due to their different enhancing effects. I also suggest possible mechanisms for cognitive-enhancing drugs and behavioral training and for the synergistic effects of their simultaneous application.