Humans must take moral and criminal responsibility for making a free choice between good and evil, according to Chŏng Yakyong, and this view was influenced by Matteo Ricci. Choosing to commit an evil action means committing a willful crime, so one must take responsibility for this action in the form of punishment. However, unintentional wrongdoings can be forgiven. For example, a man stealing to survive or killing a robber in order to live should not be punished, (...) because these individuals have no choice but to do so. Those claims of Chŏng are his own creation, not influenced by Ricci or Confucianism. By contrast, the idea that a child’s intentional hiding of his father’s crime should not be punished because of the child’s duty of filial piety was influenced by Confucianism. However, a large crime committed by a child on the basis of filial piety, such as committing murder to rescue one’s mother, only lends cause for commutation. Unlike Chŏng, Ricci regarded a child’s act of stealing bread to feed his family as an action of evil rather than an act of filial piety, since theft is an evil action. (shrink)

We have argued here that to attribute criminal responsibility to psychopathic individuals is to ignore substantial and growing evidence that psychopathic individuals are significantly impaired in moral understanding. They do not appear to know why moral transgressions are wrong in the full sense required by the law. As morally blameless offenders, punishment as a basis for detention cannot be justified. Moreover, as there are currently no successful treatment programs for psychopathy, nor can detention be justified on (...) grounds of treatment. Instead, we argue detention on the grounds of self- defence, due to the severe and continuing threat posed by the psychopathic criminal. (shrink)

La aplicación del Código de Faltas ha dado lugar a una serie de consecuencias moral y penalmente reprochables. Las privaciones abusivas de la libertad son paradigmáticas porque nos remiten al problema de las múltiples manos. Para formular una versión tipo de un enunciado de responsabilidad retrospectivo condenatorio evaluaré los argumentos que han sido utilizados desde la teoría moral y la teoría penal como respuesta a aquel problema.

My aim in this paper is to defend negligence as a legitimate basis for moral and criminal culpability. In so doing, I also hope to demonstrate how philosophical and jurisprudential perspectives on responsibility can mutually inform each other. While much of the paper focuses on criminal negligence, my aim is to show how attention to certain doctrines and concepts in criminal law can shed light on our understanding of moral culpability including culpability for negligence. (...) It is often taken to be a fundamental principle of criminal law that an act cannot be guilty unless it is accompanied by a culpable state of mind or mens rea. This has led to scepticism regarding negligence as a legitimate basis for desert-based criminal sanction because it is not clear that negligence picks out any mental state at all, much less a culpable one. In this paper I articulate and defend a unified account of moral and criminal culpability that rejects the standard view of mens rea that underlies negligence-skepticism. Specifically, I hold that the mens rea element of a crime does not function to inculpate, as is standardly held, but to partly determine the description under which an action counts as wrongful. While I agree that we should be especially cautious about criminalizing negligence, the relevant question, on my view, is not whether a given mens is sufficiently culpable but whether the mens-cum-actus is sufficiently wrongful to warrant the attention of criminal justice. (shrink)

This article considers whether psychopaths should be held criminally responsible. After describing the positive law of criminal responsibility in general and as it applies to psychopaths, it suggests that psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others. Alternative forms of social control for dangerous psychopaths, such as involuntary civil commitment, are considered, and the potential legal implications of future scientific understanding of psychopathy are addressed.

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: the psychological factors that motivate the individual’s behavior are environmentally determined and her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted. -/- To get to this conclusion, I will proceed in four (...) steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption ultimately because we sympathize with agents who lack responsibility for their actions. -/- Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former. -/- Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility. -/- Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299, I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge. (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal (...) responsibility and directed more at empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application (...) of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions for further study regarding the historical behavior of the jury, the jury’s role in reinforcing notions of political liberty and free will, and, primarily, how scholarly conceptions of the jury’s role and behavior have informed elite theory regarding the justifications for imposing criminal responsibility. (shrink)

Since the 90’s, neurolaw is on the rise. At the heart of heated debates lies the recurrent theme of a neuro-revolution of criminal responsibility. However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will) are often inaccurate and the relative imperviousness of its real foundations to scientific facts often underestimated. Neuroscientific findings may impact on social institutions, but only insofar as they also engage in a political justification of the changes being (...) called for, convince populations, and take into consideration the ensuing consequences. Moreover, the many limits of neuroscientific tools call for increased vigilance when, if ever, using neuroscientific evidence in a courtroom. In this article, we aim at setting the basis for future sound debates on the contribution of neuroscience to criminal law, and in particular to the assessment of criminal responsibility. As such, we provide analytical tools to grasp the political and normative nature of criminal responsibility and review the current or projected use of neuroscience in the law, all the while bearing in mind the highly-publicized question: can neuroscience revolutionize criminal responsibility? Answering this question implicitly requires answering a second question: should neuroscience revolutionize the institution of criminal responsibility? Answering both, in turn, requires drawing the line between science and normativity, revolution and dialogue, fantasies and legitimate hopes. (shrink)

It is often thought that an agent is blameworthy only for wrongdoing she had a fair opportunity to avoid. However, in this article, I defend the thesis that there is a form of culpability for wrongdoing—exemplified by criminal guilt—that it is possible to accrue even for wrongdoing one lacked a fair opportunity to avoid. If I am right that criminal guilt, properly conceived, is not something everyone necessarily has a fair opportunity to avoid, an offender’s lack of fair (...) opportunity to avoid her guilt would appear to be an important potential ground for mitigation at sentencing. Hence, the thesis of this article may point the way toward a novel explanation of a moral intuition that a coterie of moral, political, and legal theorists has for decades sought but struggled to vindicate: the intuition that offenders who have suffered from various social disadvantages should receive less punishment for their crimes, even when those crimes are not morally justified or excused. (shrink)

Theoretical arguments that psychopathy eliminates individual responsibility for illegal behavior and can therefore serve as a basis for an insanity defense are largely premised on emotional characteristics of psychopathy that impede the individual’s capacity to appreciate right from wrong. We offer arguments and countervailing evidence indicating psychopaths do have the capacity to appreciate right from wrong and therefore should not be absolved of criminal responsibility.

The justice of criminal punishment depends in part on the possibility of holding people accountable for their choices. There is a wide variation between nations on the age at which juveniles can be prosecuted in adult criminal courts. This variation reflects disagreement about the underlying logic of responsibility. This paper examines the philosophical difference between adults and children as agents. The paper argues that the moral status of children is importantly distinct from adults, specifically with respect (...) to how responsibility should be mitigated. The paper explains this in terms of the developmental aspect of childhood. By considering empirical evidence from psychology and neuroscience we can understand the mistakes that juveniles make as a form of developmental impairment. The paper shows why these findings lead to the conclusion that the practice of trying children as adults is immoral and should be eliminated. (shrink)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer (...) from this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

Some contemporary philosophers maintain we lack the kind of free will that makes us morally responsible for our actions. Some of these philosophers, such as Derk Pereboom, Gregg Caruso, and Bruce Waller, also argue that such a view supports the case for significant reform of the penal system. Pereboom and Caruso explicitly endorse a quarantine model for dealing with dangerous criminals, arguing that while not responsible for their crimes such criminals should be detained in non-harsh conditions and offered the opportunity (...) for rehabilitation. Waller does not explicitly endorse the quarantine model, but his view is similar in significant respects. I argue that such views can too easily lead to the endorsement of legal policies which would result in more frequent punishment of innocent persons for crimes they have not committed. Thus, we should have deep moral reservations about such views. (shrink)

Recently it has been argued that certain neuropsychological findings on the decision-making, instrumental learning, and moral understanding in psychopathic offenders offer reasons to consider them not criminally responsible, due to certain epistemic and volitional impairments. We reply to this family of arguments, that collectively we call the irresponsibility of the psychopath argument. This type of argument has a premise that describes or prescribes the deficiencies that grant or should grant partial or complete criminal exculpation. The other premise contends (...) that neuropsychological evidence shows that psychopaths have incapacitates that are sufficient to ascribe complete or partially exculpatory deficiencies. The focus of our criticism is this latter premise. We argue that it requires that psychopathy should correlate significantly with certain rational incapacities that manifest across contexts. We show that the available neuropsychological data do not support the claim that psychopaths have such general exculpatory incapacities. (shrink)

ABSTRACT The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ?disease? or ?moral weakness?. It then turns to the criteria for criminal responsibility and shows that the (...) criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ?translated? into the law's folk psychological criteria. Distractions about responsibility are then quickly canvassed. Then it addresses the direct relation between addiction and criminal responsibility. It argues that most addicts retain sufficient rational and control capacities at the relevant times to be held responsible, especially for crimes that are not part of the definition of addiction itself. It suggests that there is good reason to excuse or mitigate addicts for the crimes of purchase and possession for personal use. It concludes by briefly considering what contemporary science can contribute to our understanding of addiction and agency. (shrink)

Is the basis of criminality an act that causes harm, or an act undertaken with the belief that one will cause harm? The present study takes a cognitive neuroscience approach to investigating how information about an agent’s beliefs and an action’s conse- quences contribute to moral judgment. We build on prior devel- opmental evidence showing that these factors contribute differ- entially to the young child’s moral judgments coupled with neurobiological evidence suggesting a role for the right tem- poroparietal (...) junction (RTPJ) in belief attribution. Participants read vignettes in a 2 2 design: protagonists produced either a negative or neutral outcome based on the belief that they were causing the negative outcome (‘‘negative’’ belief) or the neutral outcome (‘‘neutral’’ belief). The RTPJ showed significant activation above baseline for all four conditions but was modulated by an interaction between belief and outcome. Specifically, the RTPJ response was highest for cases of attempted harm, where protag- onists were condemned for actions that they believed would cause harm to others, even though the harm did not occur. The results not only suggest a general role for belief attribution during moral judgment, but also add detail to our understanding of the inter- action between these processes at both the neural and behavioral levels. (shrink)

Behaviour, including criminal behaviour, takes place in lived contexts of embodied action and experience. The way in which abstract models of selfhood efface the individual as a unique, living being is a central aspect of the ‘ethical-other’ debate; if an individual is modelled as abstracted from this ‘living’ context, that individual cannot be properly or meaningfully linked with his or her behaviour, and thus cannot justly be understood as responsible. The dominant rational choice models of criminal identity in (...) legal theory involve at least a partial abstraction of this ‘unethical’ type by prioritising the rational will over the more fluid dimensions of lived reality. From a phenomenological perspective, an approach of ‘restlessness’ is proposed which precludes the development of settled or general abstract categories, and can thus move us closer to an ethical understanding of living individuals on a theoretical level. Although such a move may initially seem to threaten criminal justice with an irrational nihilism, by maintaining awareness of the irreducibility of ‘living’ reality a restless theoretical understanding of moral selfhood may be able to shape or underpin the attribution of responsibility in more practical or substantive contexts without succumbing to meaninglessness. (shrink)

Psychopathy is characterized by pronounced emotional deficits, yet individuals with psychopathic traits generally understand the law and the likely punishments for violating it. Vitacco, Erickson, and Lishner (2013) suggest that because of this appreciation, there is no question that psychopaths are criminally responsible. We make the modest argument that increasing psychological and neurological evidence calls into question whether conventional assumptions about an offender’s culpable states of mind hold true for psychopaths. It is likely, we suggest, that a wide range of (...) deficits found in psychopaths impair their ability to calculate risks of harm and utilize information about the consequences of their behavior. (shrink)

This chapter considers arguments by Neil Levy for the proposition that direct conscious awareness is a prerequisite for responsibility. It argues that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance of an act is too strict. Furthermore, the chapter claims that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity (...) for diachronic agency and self-control, not synchronic conscious control. This means that an agent may be responsible for harm related to lapses even if they at no point could have reasonably foreseen the possibility of causing criminal harm. (shrink)

Trafficking in human body parts is one of the most severe form of crime in modern times. The topicality of this phenomenon reinforces the fact that it is intertwined with organised crime and human despair. The resulting repercussions are dangerous for the “donor”, prosperous for the “intermediaries”, and vital for the “recipient”. The paper analyses the phenomenon of trafficking in human body parts, which is directly related to the development of transplant medicine and surgery. Human organ transplantation is moving toward (...) indicative ethics, as ethics of responsibility, and is gradually moving beyond imperative ethics, emphasising duty. Human organ donation is an act of self-sacrifice. Therefore, from an ethical and moral perspective, the commercialization or trafficking of human organs is unacceptable because it violates human dignity. In addition to the ethical implications, the paper analyses international documents on this topic and the Croatian normative regulations on this issue. Finally, bioethical and criminal law answers to this question are given. (shrink)

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. (...) I show than an implication of this view is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until (...) recently, both concepts were considered to be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is (...) at the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls mens rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

In a recent book, Neil Levy argues that culpable action – action for which we are morally responsible – is necessarily produced by states of which we are consciously aware. However, criminal defendants are routinely held responsible for criminal harm caused by states of which they are not conscious in Levy’s sense. In this chapter I argue that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the (...) moral significance of an act is too strict, and that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is (...) at the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls men rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

In this 2001 volume a group of leading philosophers address some of the basic conceptual, methodological and ethical issues raised by genetic research into criminal behavior. The essays explore the complexities of tracing any genetic influence on criminal, violent or antisocial behavior; the varieties of interpretations to which evidence of such influences is subject; and the relevance of such influences to the moral and legal appraisal of criminal conduct. The distinctive features of this collection are: first, (...) that it advances public discussion while clarifying the debate about genetic research and criminal behavior; second, that it explains scientific controversies about behavioral genetics in lucid, non-technical terms; third, that it demonstrates how the possible findings on genetics and crime bear on fundamental issues of moral and criminal responsibility. The volume will be of particular value to philosophers concerned with applied ethics, behavioral geneticists, psychologists, legal theorists, and criminologists. (shrink)

In Responsible Brains, Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture (...) of cognitive capacities and mechanisms—thereby leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: role of emotions in moral judgments and behavior; executive functions and normative criteria for legal insanity; impact of adverse situational factors on executive functions; Authors’ account of punishment and, especially, rehabilitation. (shrink)

This article puts forward a theory of corporate criminal responsibility as the shared responsibility of the members of a team for wrongdoing committed by one of their number in the pursuit of their common goals. The theory of team member responsibility advanced in this article differs from theories—such as those of Peter French and Phillip Pettit—under which corporate or group responsibility is viewed as the responsibility of the corporation or group as an autonomous (...) class='Hi'>moral person. Instead, this article defends a conception of a collectivity as a kind of relationship among individuals; under this conception, a collectivity is something more than the sum of its members, but not something having an autonomous existence apart from its members. To develop this idea, the article employs the concept of a team. Where individuals participate in a team, doing their part towards a collective goal, they are entitled to share in the credit for the positive achievements resulting from their combined actions, and they also share in the discredit for negative achievements of the group. This is so for each member, regardless of whether the member's individual contribution was a but-for cause of the group's achievement. Further, in the specific case of corporate teams, team member responsibility can help to explain why there should be liability of the corporate entity for crimes committed by members of the corporation (a group which typically includes its employees, officers, directors and, in some circumstances, its shareholders) in the pursuit of the corporation's goals. (shrink)

Introspection is a fundamental part of our mental lives. Nevertheless, its reliability and its underlying cognitive architecture have been widely disputed. Here, I propose a principled way to model introspection. By using time-tested principles from signal detection theory (SDT) and extrapolating them from perception to introspection, I offer a new framework for an introspective signal detection theory (iSDT). In SDT, the reliability of perceptual judgments is a function of the strength of an internal perceptual response (signal- to-noise ratio) which is, (...) to a large extent, driven by the intensity of the stimulus. In parallel to perception, iSDT models the reliability of introspective judgments as a function of the strength of an internal introspective response (signal-to-noise ratio) which is, to a large extent, driven by the intensity of conscious experiences. Thus, by modelling introspection after perception, iSDT can calibrate introspection’s reliability across a whole range of contexts. iSDT offers a novel, illuminating way of thinking about introspection and the cognitive processes that support it. (shrink)

In Complicity and the Rwandan Genocide ( 2010b ), Larry May argues that complicity can be the basis for criminal liability if two conditions are met: First, the person’s actions or inactions must contribute to the harm in question, and secondly, the person must know that his actions or inactions risk contributing to this harm. May also states that the threshold for guilt for criminal liability is higher than for moral responsibility. I agree with this latter (...) claim, but I think that it casts doubt on May’s account of criminal liability, particular in so-called performance cases in which low-level participants merely fail to help. This is because it is far from clear that passive non-helpers are morally responsible for their participation in widespread harms. Situationism purports to show that passive bystanders typically are not morally responsible for their role in such harms, because they were behaving reasonably subject to the constraints they faced. In this paper, I assess this claim, and defend it on the basis of O. W. Holmes’ standard of the reasonable person as a guide to judging criminal complicity. Finally, I provide a situationist account of the Rwandan genocide, which focuses on the systemic causes and primary perpetrators of the genocide, rather than low-level participants. (shrink)

This is a book about the role that psychological impairment should play in a theory of criminal liability. Criminal guilt in the Anglo-American legal tradition requires both that the defendant committed some proscribed act and did so with intent, knowledge, or recklessness. The second requirement corresponds to the intuitive idea that people should not be punished for something they did not do 'on purpose' or if they 'did not realize what they were doing'. Unlike many works in this (...) area, this book addresses the automatism and insanity defences by examining the types of functional impairment that typical candidates for these defences actually suffer. What emerges is a much wider conceptual framework that allows us to understand the significance of psychological states and processes for the attribution of criminal responsibility in a manner that is logically coherent, morally defensible, and consistent with research in psychopathology. (shrink)

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view (...) per se face significant independent moral objections. Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular preventive detention, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s, taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health -quarantine model—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own. (shrink)

Ethicists have for the past 20 years debated the possibility of using neurointerventions to improve intelligence and even moral capacities, and thereby create a safer society. Contributing to a recent debate concerning neurointerventions in criminal rehabilitation, Nicole Vincent and Elizabeth Shaw have separately discussed the possibility of responsibility enhancement. In their ethical analyses, enhancing a convict’s capacity responsibility may be permissible. Both Vincent and Shaw consider self-control to be one of the constituent mental capacities of capacity (...) responsibility. In this paper, we critically examine the promise of improving convicts’ capacity responsibility by neuroenhancements of self-control to see whether the special characteristics of the inmate population make a difference in the analyses. As improving self-control by means of neurointerventions seems plausible, we then ask whether it is or could be a justified measure in court rulings. We conclude that, even if there are cases in which neurointerventions were warranted in the context of the stated goals of the criminal court, i.e., decreasing recidivism and rehabilitating the offenders to the society, due to the range of individual variability in the constitution of self-control, the prescription of specific neurointerventions of self-control falls outside the scope of legitimate court rulings. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Key Concepts: Criminal ResponsibilityCarl Elliott (bio)AbstractMentally disordered persons occasionally do things for which we would ordinarily blame or even punish a non-disordered person. We often do not blame mentally disordered persons for these actions, however, because we regard mental disorders, at least in some circumstances, as an excuse from moral responsibility. For moral philosophy and the law, the challenge is to understand the specific circumstances (...) under which a mental disorder should excuse an offender from responsibility for his or her actions. Because different types of psychopathology influence a person’s intentions and character in very different ways, judgments of responsibility crucially depend upon the specific nature of a mental disorder. They also depend on adequate understandings of concepts such as moral understanding, especially in the case of psychopathy, as well as an understanding of the reasons why mental disorders may excuse a person from responsibility.Keywordsintention, M’Naghten Rules, irresistible impulse, personality disorders, psychopathyThe mentally ill often do things for which they are not responsible. This has long been recognized, by both morality and the law. But just which mentally ill persons should be excused, and under what circumstances, is an altogether more complicated affair.In the Nicomachean Ethics, Aristotle distinguishes two types of involuntary actions, for which (by implication) a person might be excused from responsibility: those done in ignorance, and those that were compelled. Both excuses are variations on the theme of non-intention. If a person did not intend to act as he did—either because he did not know what he was doing, or because he could not help acting as he did—then he is not responsible for the action. Intention is also a key point for the law, which traditionally has said that for a crime to have been committed, it must be accompanied by evil intent, or mens rea (literally, “guilty mind.”)The problem comes in saying how these distinctions play out for the mentally ill offender. The most widely used standards for determining criminal (legal) responsibility are based on the M’Naghten Rules, which excuse a person from responsibility for an act if, as a result of a mental disorder, he did not know the nature and quality of the act, or did not know that the act was wrong. This standard works nicely for the paradigmatic cases of mentally ill offenders; it would excuse, for example, the person with paranoid schizophrenia who strikes out violently at a person he falsely believes is threatening his life. However, it is unclear on several other points, the most famous of which relates to Aristotle’s excusing condition of compulsion. How should we regard those people, for example, whose psychosis impairs their ability to control their behavior, or whose mental disorders involve the control of their unusual desires, such as kleptomania, pyromania, pedophilia and voyeurism? Many of the [End Page 305] latter such persons are aware of the nature and quality of what they desire to do, and they are aware that it is wrong, but they find great difficulty in resisting their desires.One well-known effort to remedy this deficiency was the “irresistible impulse” test, which excused those persons who as a result of their condition had acted on desires that were irresistible. Yet the difference between an irresistible desire and a desire not resisted has proven notoriously difficult to distinguish, in practice as well as in theory.Another chronic source of philosophical controversy is the question of responsibility for one’s character. In psychiatry, this debate surfaces most often with patients who have personality disorders. Ordinarily, since persons cannot control whether they incur a mental illness, they can be excused from responsibility for some actions they have taken while they were mentally ill. However, personality disorders are also (in some sense) beyond a person’s control, being the product of genetic inheritance and upbringing. This raises old issues of psychological determinism: if personality disorders are beyond a person’s control, is it just to hold that person responsible for the actions that result from them?On the other hand, even if personality disorders are within the proper domain of psychiatry, they are obviously quite different from... (shrink)

Lawyers who write about responsibility tend to focus on criminal law at the expense of civil and public law; while philosophers tend to treat responsibility as a moral concept,and either ignore the law or consider legal responsibility to be a more or less distorted reflection of its moral counterpart. This book aims to counteract both of these biases. By adopting a comparative institutional approach to the relationship between law and morality, it challenges the common (...) view that morality stands to law as critical standard to conventional practice. It shows how law and morality interact symbiotically, and how careful study of legal concepts of responsibility can add significantly to our understanding of responsibility more generally. Central to this project is a distinction between two paradigms of responsibility -- the criminal law paradigm and the civil law paradigm. Whereas theoretical discussions of responsibility tend focus on conduct and agency, taking account of civil law reveals the importance of outcomes and the interests of victims and society to ideas of responsibility. The book examines from a distinctively legal point of view central philosophical questions about responsibility such as its relationship with culpability (challenging the common view that moral responsibility requires fault), causation and personality. It explores the relevance of sanctions and problems of proof and enforcement to ideas of responsibility, as well as the relationship between responsibility and distributive justice, and the role of concepts of responsibility in public law. At the heart of this book lie two questions: what does it mean to say we are responsible? and, what are our responsibilities? Its aim is not to answer these questions but to challenge some traditional approaches to answering them and more importantly, to suggest fruitful alternative approaches that take law seriously. (shrink)

Antony Duff argues that the criminal law’s characteristic function is to hold people responsible. It only has the authority to do this when the person who is called to account, and those who call her to account, share some prior relationship. In systems of domestic criminal law, this relationship is co-citizenship. The polity is the relevant community. In international criminal law, the relevant community is simply the moral community of humanity. I am sympathetic to his community-based (...) analysis, but argue that the moral community must play a greater role in the domestic case and that the collection of individual political communities must play a greater role in the international case. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free (...) will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty affects (...) brain development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model. The essay begins by discussing recent empirical findings in psychology, neuroscience, and the social sciences that provide us with an increased understanding of the social and neurological determinants of health and criminal behavior. It then turns to Caruso's public health-quarantine model and argues that the model provides the most justified, humane, and effective approach for addressing criminal behavior. Caruso concludes by proposing a capability approach to social justice grounded in six key features of human well-being. He argues that we cannot successfully address concerns over public health and safety without simultaneously addressing issues of social justice—including the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB)—and he recommends eight general policy proposals consistent with his model. (shrink)

In this paper, I attempt to show that the moral/conventional distinction simply cannot bear the sort of weight many theorists have placed on it for determining the moral and criminal responsibility of psychopaths. After revealing the fractured nature of the distinction, I go on to suggest how one aspect of it may remain relevant—in a way that has previously been unappreciated—to discussions of the responsibility of psychopaths. In particular, after offering an alternative explanation of the (...) available data on psychopaths and their judgments of various sorts of norm transgressions, I put forward a hybrid theory of their responsibility, suggesting how they might be criminally responsible, while nevertheless failing to meet the conditions for an important arena of moral responsibility. (shrink)

Review of Yaffe's "The Age of Culpability".

This is a book about the role that psychological impairment should play in a theory of criminal liability. Criminal guilt in the Anglo-American legal tradition requires both that the defendant committed some proscribed act and did so with intent, knowledge, or recklessness. The second requirement corresponds to the intuitive idea that people should not be punished for something they did not do 'on purpose' or if they 'did not realize what they were doing'. Unlike many works in this (...) area, this book addresses the automatism and insanity defences by examining the types of functional impairment that typical candidates for these defences actually suffer. What emerges is a much wider conceptual framework that allows us to understand the significance of psychological states and processes for the attribution of criminal responsibility in a manner that is logically coherent, morally defensible, and consistent with research in psychopathology. (shrink)

David Brink’s book Fair Opportunity & Responsibility is a meticulously argued and ultimately convincing book that carefully articulates the requirements for criminal guilt and punishment. As the title suggests, Brink argues that only one who has a fair opportunity to be law-abiding ought to be held responsible when they commit a crime. It is unfair to hold a person responsible if they lack abilities necessary to legal agency at the time of a wrongful act, or if these abilities (...) are severely compromised. In this essay I focus on Brink’s handling of structural injustice and the way it can impact our responsibility practices. Structural injustice is a serious and pervasive problem in the U.S., and it is closely related to crime rates. I argue that structural injustice can ground a partial excuse based on compromised normative competence. This is a possibility that Brink does not explore. Marginalization can compromise one’s ability to make and follow normative judgments in keeping with one’s larger society and the criminal law; and what makes some marginalized persons less culpable is that their ability to recognize and respond to moral and legal reasons is compromised compared to those that are not marginalized. (shrink)

In this paper my concern is with the collective moral responsibility of criminal investigators for the outcomes of their investigations, bearing in mind that it is important to distinguish collective moral responsibility from, and relate it to, individual moral responsibility. In what sense, if any, are police detectives individually and collectively morally responsible for their success (or, for that matter, their failure) in gathering sufficient evidence to identify, arrest, and charge an offender who (...) has committed a serious crime? Alternatively, in what sense are they morally responsible in cases where they identify, arrest, and charge an innocent person? And in what sense, if any, are police detectives individually and collectively morally responsible for the ultimate outcome of the trial, the finding by the courts of someone they have investigated and charged with a serious crime to be guilty or innocent? (shrink)

ABSTRACT Ethical leaders can influence followers’ ethical behaviors by establishing an ethical climate. However, followers’ responses to an ethical climate may also differ according to the amount of attention they devote to moral questions. This study analyzes whether moral attentiveness augments the positive effect of an ethical climate on employees’ ethical behaviors, as well as the indirect effect of ethical leadership on employee ethical behavior through an ethical climate. Data from 270 employees in the Malaysian manufacturing industry indicate (...) that the positive impact of an ethical climate on ethical behavior is greater among employees who exhibit high rather than low moral attentiveness; this moderating role also applies to the relationship between ethical leadership and employee ethical behavior through the ethical climate. This study thus sheds new light on the notable role of moral attentiveness in ensuring that ethical leadership and ethical climate enhance ethical behavior in the workplace. (shrink)