^{page 323 note 1} I wish to thank Prof. Hart, H. L. A. and Prof. Kneale, W. C. for valuable suggestions.Google Scholar

^{page 323 note 2} It will appear in the Philosophical Quarterly in January 1965.Google Scholar

^{page 324 note 1} Cf. ‘Ley, because of his insanity, lived in a twilight world of distorted values which resulted not so much in his being “incapable of preventing himself” from committing his crime, in the strict sense of those words, as in his being incapable of appreciating, as a sane man would, why he should try to prevent himself from committing it. It seems to us reasonable to argue that the words “incapable of preventing himself” should be construed so as to cover such states of mind; that they should be interpreted as meaning not merely that the accused was incapable of preventing himself if he had tried to do so, but that he was incapable of wishing or of trying to prevent himself, or incapable of realising or attending to considerations which might have prevented him if he had been capable of attending to them. If each of Ley's acts is considered separately, it would be difficult to maintain that he could not have prevented himself from committing them. Yet if his course of conduct is looked at as a whole, it might well be argued that he was incapable ofpreventing himself from conceiving the murderous scheme, incapable of judging it by other than an insane scale of ethical values, and in that sense, incapable of preventing himself from carrying it out.’ Royal Commission on Capital Punishment. Cmd. 8932. page 111.Google Scholar

^{page 325 note 1} See The Nicomachean Ethics of Aristotle,Book III, Section 5.Google Scholar

^{page 325 note 2} Aristotle, does not always assume this. Thus he allows duress as an excuse.Google Scholar

^{page 326 note 1} It is worth contrasting this with Aristotle's position. Aristotle says ‘wickedness is like a disease’ (ibid., Bk. VII, Section 8). This may seem inconsistent with his view that the wicked ought to be punished and blamed. But this apparent inconsistency would not have worried Aristotle. For he believed that all except the thoroughly senseless are responsible for becoming wicked. Similarly with drunkenness, Aristotle says it is no excuse whenever we are responsible for becoming drunk.

^{page 327 note 1} When I say that a man passes the first test, I meanhe could have avoided acquiring criminal values. When I say a man fails thefirst test I mean he could not have avoided acquiring criminal values. Similarly, by passing the second test, I mean the man could get rid of his criminal values, and by failing it, I mean he could not get rid of his criminalvalues. If A fails the test, and B passes the test, then A comes off worse under that test.

^{page 328 note 1} ‘The (ordinary) criminal, in short, is usually trying to get something we all want, though he uses methods we shun. On the other hand the psychopath, if he steals or defrauds seems to do so for a much more obscure purpose.’ (H. Cleckley, The Mask of Sanity, 3rd edition, p. 292.)Google Scholar In this paper, for reasons of space, I shall not say much about the characteristics of psychopaths. I have said something about this in ‘The Responsibility of Psychopaths’. Those who wish to know more about what a psychopath is could read The Mask of Sanity by Cleckley.Google Scholar In this paper I have assumed that, though psychopaths may be capable of good theoretical reasoning in moral and intellectual matters, they are lacking in moral sentiments (i.e. they do not have moral principles, they do not feel morally guilty when they do wrong, etc.). And I have also assumed that psychopaths persistently commit anti-social actions and are more different from the average citizen than the ordinary criminal is. In ‘The Responsibility of Psychopaths’ I said that once we realise that psychopaths have different aims and values, some of the arguments that try to show the psychopath to be lacking in responsibility will be seen to break down. It would, however, be quite consistent to go on and try to show that psychopaths are not responsible with the help of the fact that their aims and values are very different.Google Scholar

^{page 330 note 1} Aristotle says things which commit him to saying that psychopaths fail the second test. He says about the self-indulgent and unjust men ‘Now that they have become so it is not possible for them not to be so’ (ibid., Book III, Section 5).

^{page 331 note 1} That this view is adhered to under our present system can be seen by examining the McNaughton Rules and HomicideAct. Under the McNaughton Rules, not all those who suffer from defect of reason due to disease of the mind are excused; only a sub-class ofthem is excused. The defect of reason must be of such a kind as to show that either (a) the accused did not know the nature or quality of his act or (b) if he did know this, he did not know that it was wrong.Google ScholarSimilarly, under the Homicide Act, it is not enough to show that the accused was suffering from abnormality of mind. Only a sub-class of the mentally abnormal are excused. For the abnormality of mind must be such that it ‘substantially impaired his mental responsibility for his acts and ommissions in doing or being party to the killing’. (Homicide Act 1957 Section 2.)Google Scholar

^{page 331 note 2} Ideally, this point needs qualification. Even if a man satisfies these two conditions, we might feel, as Aristotle would have felt, that he ought not to be excused, if he was responsible for acquiring his illness. But we saw earlier that neither the McNaughton Rules nor the Homicide Act worry about this.Google Scholar

^{page 331 note 2} See pages 327-330.

^{page 332 note 1} Philosophy, Politics and Society. Second Series. Edited by Laslett. Page 27.Google Scholar

^{page 334 note 1} This class of people is, of course, not identical with the class of those who want to regulate their lives by certain ends, yet find they are unable to do so, e.g. because of irresistible impulses.

^{page 334 note 2} Of course, some objectivists may not believe in any such dogma. They may take the view that those who choose to regulate their lives by ends that are different from the ends that they have discovered, can be presumed to be healthy unless they can be shown to be sick in some other way, e.g. if a man believes he is the king of France, and if he is indifferent between kicking a pebble and the destruction of his family, we may infer that he is mad, not from the fact that he is indifferent between kicking the pebble and the destruction of his family, but from the fact that he believes he is the king of France. But, of course, those like Berlin, who wish to use the scale of values that a man has as evidence of his madness, cannot take this position.

^{page 335 note 1} Aristotle, seems to have held some such metaphysical view. It is significant that he believes that wrong doers must either be ignorant of the universal (he says ‘all wicked men are ignorant of what they ought to do, and what they ought to abstain from’), or do something against choice (he says ‘incontinence is contrary to choice’). He, implicitly, denies the existence of people who choose to regulate their lives by principles that they know to be wrong. And in our own day the theory of the integration of the self has been used (e.g. by Jerome Hall. See his General Principles of Criminal Law, 2nd edition, Chapter 13) to rule out, explicitly or implicitly, the following classes of people: (a) those who know the right ends, but choose to regulate their lives by ends that are radically different, and (b) those who know what is right and good and wish to do what is right and good, but do wrong because their power of self-control is diseased. They rule out the above classes of people on the grounds that the important powers of the personality (e.g. knowledge, volition, emotion) are integrated, and so one important power cannot be impaired, unless all the other important powers are also impaired. (‘Serious mental disease is an impairment of all the principal aspects of the personality’ (Jerome Hall: General Principles of Criminal Law, 2nd edition, page 494).) To deny this would entail, so the argument runs, the acceptance of the out-dated faculty psychology, according to which the mind was divided into separate compartments. For if the mind is not divided into separate compartments, a disease that has impaired one important power must have impaired the other important powers also.Google ScholarIt seems to me, however, that one can accept the view that one important power of the mind (e.g. volition) can be diseased while another important power (e.g. knowledge) is unimpaired, without believing in any of the errors of faculty psychology. One can, for instance, agree with Ellis ‘… a person's ego, id or superego cannot do, under its own power, anything whatever. It is in the case of any normal adult human being, the whole person, or individual or organism who thinks, emotes and acts.’ (Quoted by Hall, page 597.) Yet even if the mind is not divided into separate compartments, even if what Ellis says in the above quotation is correct, it is still possible that some of a person's powers may be seriously impaired while others are not. It is perhaps true that if the mind is not divided into separate compartments and if the disease is contagious between different powers of the mind, then one important power cannot be seriously diseased without impairing the other important powers. But why must the disease always be contagious between different powers of the mind?Google Scholar

^{page 336 note 1} I think Berlin, in his valuable and exciting paper, has made this mistake. For he does imply, in the passage that I quoted earlier, that consistent relativists will say that the man who has very different values from us is not mad. But if there is anything of value to be learnt from a discussion of this mistake, it should remain, even if I am wrong in attributing this mistake to Berlin.

^{page 338 note 1} The view that certain values are inhuman, while others are human, is I think compatible with the view that values do not exist in sense two. Thus a subjectivist could give as his reason for saying that certain values are human while others inhuman, that it is man who has created values and has loaded the term ‘inhuman’ with certain values, and the term ‘inhuman’ with certain other values. It will then be an objective matter of fact that certain people, e.g. A, B, C, have values that are inhuman, while certain other people, e.g. X, Y, Z, have values that are inhuman. But this objective fact is compatible with the subjectivist thesis that values do not exist in sense two. The problem on this view would be with which values should we load the concept ‘human’. And there may be considerable dispute on this problem between people who hold different moral views.Google Scholar

^{page 338 note 1} Gabriel de, Tarde (Freedom and Responsibility, edited by Morris, H., pp. 46–49) believed that we excuse a man from punishment if he is not socially similar to us. And he tried to support this view by saying that this view explains why we excuse from punishment savages, epileptics, etc. I think Tarde may be right that savages and epileptics are not socially similar to us, but I think these examples do not establish his case conclusively. For our reason for excusing savages and epileptics may be that such people have not had a fair opportunity of obeying our law.Google Scholar

^{page 338 note 2} Earlier in this paper we say that the values that a man has may be used as evidence for mental disorder. Now we see that values enter in another way—we need them to tell us what the standards of mental disorder are. Neither of these ways of bringing values into the problem of mental disorder presupposes that values exist in sense two.