1 This is the view put forward by Sir Stephen, James in 1883 (A History of the Criminal Law of England, (London: MacMillan, 1883), 2:97, 2:125),Google Scholar and by Wechsler, Herbert in 1955 (“The Criteria of Criminal Responsibility,” University of Chicago Law Review, 22:367, p. 373)CrossRefGoogle Scholar. What appears to be an example of Conservative reasoning occurs in the answer the Chief Justices gave to the fourth question posed them by the House of Lords in connection with M'Naughton's case (10 Clark ' Finnelly 200 (1843)).

2 Fingarette, Herbert The Meaning of Criminal Insanity (Berkeley: The University of California Press, 1972).Google Scholar

3 It is obviously the Liberal Position that underlies the Durham decision (94 US App DC 228, 214 F2d 862, 45 ALR 2d 1430, (1954)) and the New Hampshire Rule (State v Pike, 49 NH 399 (1870)).

4 Some would hold that an agent with a valid excuse for A has done nothing wrong in doing A, and hence that A is not an offense in that case. If we say A is not an offense when the agent has an excuse for doing it, we obscure the difference between Justifications and excuses. Those who think saying that x has an excuse on account of A precludes saying that A (the token) was wrong can avoid obscuring the distinction by thinking of an offense simply as a morally bad state of affairs which may or may not be due to wrong-doing.

5 Richard Brandt, “A Utilitarian Theory of Excuses,” The Philosophical Review, (July 1969).

6 Glover, Jonathan Responsibility (New York: Humanities Press, 1970), p. 63.Google Scholar

7 James Wallace, “Excellence and Merit,” The Philosophical Review, (April 1974), p. 198. The resemblance was brought to my attention by William Nelson.

8 Harry Frankfurt, “Alternate Possibilities and Moral Responsibility,” The Journal of Philosophy (Dec. 4, 1969).

9 Even those with retributivist sympathies seem to recognize this. E.g., Davis argues that the guilty deserve to suffer but is careful to point out that this is consistent with the view that one ought never to impose suffering. (Lawrence Davis, ''They Deserve to Suffer,” Analysis, March 1972).

10 Of course, if we could somehow convince the agoraphobe that there is no chasm there at all, we could get him to cross. Still, there is a fairly sharp line between the sort of “information” that will influence the coward and the sort of “information” that will influence the phobist. A good rule of thumb is this: nothing short of misinforming the phobist in such a way that he would have a standard ignorance excuse for the action contemplated will influence him significantly. In short, he must be deceived as to what is really going on.

11 Fingarette thinks it would. He defines “insanity'’ as follows: “Insanity is failure to respond relevantly to what is essentially relevant by virtue of a grave defect in the capacity to do so inherent at least for the time in the person's mental makeup.“ (p. 203) He continues: “Since 1 and 2 [2 is an expanded version of 1] make it plain that where there is insanity there is inherent incapacity to respond relevantly, it is evident that: 3. So far as there is insanity there cannot be responsibility“ Fingarette seems to regard his position as self-evident. The nearest he comes to supportive argument is what appears to be a play on two senses of “responsible“ (reliable vs. culpable) together with a version of the retributivist move mentioned earlier. See pp. 201-2. M. Moore asserts a similar position without argument in B. Brody and T. Engelhardt (eds.), Mental lllness and Its Policy Implications (D. Reidel), forthcoming.

12 Another reason for wanting to treat type (ii) cases separately is that there are cases of this type that certainly do not preclude culpability, e.g., the second case imagined by the Justices in their reply to the Lords’ fourth question in connection with M'Naughton's case in which A kills B under the delusion that B has injured his reputation.

13 Again, it is worth emphasizing that it is questionable whether conduct ever can really run against intention, desire, and belief in this way. I propose to let this pass, however, my purpose being to examine the Liberal position in its natural and most advantageous habitat.

14 This makes the Conservative sound like a utilitarian. There is certainly a kind of intellectual affinity. But the Conservative needn't endorse utilitarian (or any other teleological) views concerning what constitutes “doing bad things”. Imagine someone who gets up each night, puts one bullet in a revolver, spins the chamber puts the muzzle to the forehead of his sleeping wife, and pulls the trigger. Even supposing nothing ever hapens, and no one finds out, the Conservative is free to say of this case that such behavior reveals that the fellow is a villian of the worst sort. The teleologist, however, will have some difficulty explaining where the offense lies.

15 Exclusive attention to reasons as moral qualities tends to reinforce this mistake, for reasons are typically alterable by deliberation. Perhaps this also explains why delusions, which are reasons but are not typically alterable by deliberation, seem to many to contrast so sharply with what is paradigmatically morally assessable.

16 For more on this point see my “Could have done otherwise,” forthcoming in The Personalist.

17 Henceforth, I shall use ‘legally liable’ in this minimal sense: a defendant is legally liable if the court is (should be) impowered to impose sanctions, or sanction substitutes involving loss of freedom.

18 In the case of a mentally disordered defendant, the bearing of the offense on legal liability appears to differ significantly from the bearing of an offense on moral culpability and from the bearing of an offense on the legal liability of a normal agent.

19 Goldstein, J.. The Insanity Defense. (New Haven: Yale University Press. 1967).Google Scholar

20 Actually, I believe that commitment should never be an option: law·breaking should be a necessary condition of any deprivation of liberty. Those so grossly disabled as to be unfit for trial cannot simply be abandoned, of course. But neither should such persons be committed unless we are also prepared to commit, e.g., severe burn victims.