¹ A retributivist about punishment believes that moral responsibility is not only a necessary condition of state punishment, but that it is a sufficient condition as well. The moral responsibility of an actor makes it not only not unfair to punish him; it also gives everyone else the duty to see that he is punished. A mixed theorist of the side constraint type, by contrast, believes that the moral responsibility of an actor is necessary to state punishment, but not sufficient. On the mixed theory, we neither have a duty to punish the guilty nor is their guilt a sufficient justification for punishment. Some other rationale, such as crime-prevention, typically is used by mixed theorists to complete their justification of punishment. I have defended the retributivist theory of punishment in Moore, Michael S., Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984), pp. 233–43Google Scholar, and in Moore, Michael S., “The Moral Worth of Retribution,” ed. Schoeman, F., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 179–219.Google Scholar For a discussion of the mixed theory of punishment where moral innocence acts as a side constraint on the pursuit of the utilitarian goal of crime-prevention, see Law and Psychiatry, pp. 237—38, 240—42.

² Moore, Michael S., “Causation and the Excuses,” California Law Review, vol. 73, no. 4 (July 1985), pp. 1091–1149.CrossRefGoogle Scholar

³ The moralist who adopts the Catholic doctrine of double effect will take the view that those norms of morality we think of as “absolutes” – deontological constraints – generalize over intentional actions and not simply over actions. See, e.g., Nagel, Thomas, The View From Nowhere (New York: Oxford University Press, 1986), p. 179.Google Scholar

⁴ Argued for in Moore, , “Causation and the Excuses,” p. 1097Google Scholar, and in Brandt, R.B., “A Motivational Theory of Excuses in the Criminal Law,” eds. Pennock, R. and Chapman, J., Nomos XXVII: Criminal Justice (New York: New York University Press, 1985), pp. 165–98, at pp. 166–67.Google Scholar

⁵ I classify intoxication on a particular occasion differently than addiction (a tendency to become intoxicated) on the following assumption: that being addicted, if it excuses, excuses because of a compelling desire that operates within an otherwise undisturbed mind; whereas being intoxicated, if it excuses, excuses because the intoxicated subject is generally incapacitated from reasoning. On this view intoxication, but not addiction, operates like insanity and infancy – as an excuse of general incapacity (status).

⁶ See, respectively, to the labels used in the text: Lacey, Nicola, State Punishment (London: Routledge, 1988) p.62Google Scholar; Gross, Hyman, A Theory of Criminal Justice (New York: Oxford University Press, 1979), p. 137Google Scholar; Kadish, Sandord H., “Excusing Crime,” in his Blame and Punishment (New York: MacMillan, 1987), pp. 81–106, at p. 88Google Scholar; Bayles, Michael D., “Character, Purpose, and Criminal Responsibility,” Law and Philosophy, vol. 1, no. 1 (April 1982), pp. 5–20, at p. 6CrossRefGoogle Scholar; Scanlon, T.M., Jr., “Quality of Will and the Value of Choice” (unpublished manuscript, 1988), p. 42Google Scholar; Fletcher, George, Rethinking Criminal Law (Boston: Little, Brown, 1978), p. 804Google Scholar; Dressier, Joshua, Understanding Criminal Law (New York: Mathew Bender, 1987), at p. 185Google Scholar; Dressier, Joshua, “Reflections on Excusing Wrongdoers: Moral Theory, New Excuses, and The Model Penal Code,” Rutgers Law Journal, vol. 19, no. 3 (Spring 1988), pp. 671–716, at p. 701Google Scholar; Moore, , “Causation and Excuse,” pp. 1148–49Google Scholar; Moore, , Law and Psychiatry, pp. 85–90.Google Scholar

⁷ Sir William Blackstone, Commentaries on the Laws of England, Chitty ed., vol. IV (London, 1826), p. 20.

⁸ See the essays collected in Hart, H.L.A., Punishment and Responsibility (Oxford: Oxford University Press, 1968).Google Scholar

⁹ ibid., p. 152.

¹⁰ ibid p. 174.

¹¹ Hart, H.L.A., “Legal Responsibility and Excuses,” ed. Hook, S., Determinism and Freedom (New York: New York University Press, 1958)Google Scholar, and reprinted in Punishment and Responsibility, pp. 28–53. (Subsequent references to this essay are to the reprinted version.)

¹² ibid.. p. 46.

¹³ ibid., p. 49 (emphasis in original).

¹⁴ ibid., p. 49.

¹⁵ Scanlon, , “Quality of Will,” p. 25.Google Scholar

¹⁶ ibid.

¹⁷ Hart, , Punishment and Responsibility, p. 80.Google Scholar

¹⁸ ibid., p. 201.

¹⁹ Austin, J.L., “Ife and Cans,” ed. Morris, H., Freedom and Responsibility (Stanford: Stanford University Press, 1961).Google Scholar

²⁰ Argued for in Moore, , “Causation and the Excuses,” pp. 1143–44.Google Scholar

²¹ ibid.

²² A libertarian in metaphysics (as opposed to political theory) believes that human actions are uncaused by any factors external to the will of the actor. A compatibilist, as I am here using the word, believes that choice and causation are compatible, so that the statements “he chose to do that” and “his choice was caused by factors themselves unchosen by him” can both be true of some actor and his action. Correspondingly, an incompatibilist believes that choice and causation are incompatible in the sense that the two statements just mentioned cannot both be true. (Notice that, on the choice theory of responsibility, a compatibilist about choice and causation will also be a compatibilist about responsibility and causation.)

²³ For an analysis of the notion of an intervening cause, see Hart, H.L.A. and Honore, A.M., Causation in the Law (Oxford: Oxford University Press, 2nd ed. 1985).CrossRefGoogle Scholar As Hart and Honore analyse it, for a human action to be an intervening cause it must be ‘Voluntary’ in their extended sense of that word, which means not done in ignorance, not done in compulsion, not done while insane, etc.

²⁴ On the neurophysiology of willing, choice, and self-directed action, see Libet, Benjamin, “Unconscious Cerebral Initiative and the Role of Conscious Will in Voluntary Action,” The Behavioral and Brain Sciences, vol. 8, no. 4 (Fall 1985), pp. 529–66.CrossRefGoogle Scholar See also Brand, Myles, Intending and Acting (Cambridge: MIT Press, 1984Google Scholar).

²⁵ See, e.g., Fingarette, Herbert, Heavy Drinking: The Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988)Google Scholar, reviewed by me in Ethics, vol. 99, no. 3 (April 1989), pp. 660–61.

²⁶ Cf. Lynch v. Director of Public Prosecutions, [1975–1] All Eng. Rep. 913.

²⁷ Other reasons for favoring the opportunity versus the capacity version of the duress excuse as it is reflected in current criminal law doctrine are given by Dressier, , “Some Reflections,” pp. 708–12.Google Scholar

²⁸ Kadish, , “Excusing Crime,” pp. 101–2, 104–6.Google Scholar

²⁹ Morse, Stephen, “Psychology, Determinism, and Legal Responsibility,” ed. Melton, G., Nebraska Symposium on Motivation 1985: Volume 33 (Lincoln: University of Nebraska Press, 1986), pp. 35–85.Google Scholar

³⁰ Aristotle, Nichomachean Ethics, bk. III, ch. 1, in McKeon, Richard, Introduction to Aristotle (Chicago: University of Chicago Press, 1973), pp. 387–88.Google Scholar

³¹ Freud, Sigmund, “Moral Responsibility for the Content of Dreams,” in Standard Edition of the Works of Sigmund Freud, ed. James, Strachey (London: Hogarth Press, 1961), vol. 19, pp. 131–34.Google Scholar I discuss this passage from Freud and others on responsibility in Moore, , Late and Psychiatry, pp. 343–48.Google Scholar

³² I discuss Dan Dennett's distinction between personal versus subpersonal levels of explanation in Law and Psychiatry, pp. 274–75. By “subpersonal agency,” I mean those centers of functioning posited to exist at the subpersonal level by the approach to mind known as “homuncular functionalism.” A homuncular functionalist believes that the nature of a person's actions and thoughts are best approached by subdividing them into the “actions” and “thoughts” of subpersonal agencies each of who “do” only a part of what the whole person does. See ibid., 414–45; see also Moore, Michael, “Mind, Brain, and Unconscious,” eds. Wright, C. and Clark, P., Mind, Psychoanalysis and Science, (Oxford: Basil Blackwell, 1988), pp. 141–166.Google Scholar

³³ On the distinction between basic and complex actions, see Moore, , Law and Psychiatry, pp. 67–77.Google Scholar

³⁴ Sabini, John and Silver, Maury, “Emotions, Responsibility, and Character,” ed. Schoeman, F., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 164–75, at p. 168.Google Scholar

³⁵ Being caused by judgment, such emotions obey laws of proportionality, keeping feeling proportional, both in type and intensity, to its object. (Grieve over a dead goose too long and it won't take a Freudian to surmise that the real object of your feeling is something else, something more appropriate to the nature and depth of your feelings.)

³⁶ Just as D₁ has a diminished opportunity sort of excuse, even if he experienced his choice as an easy one.

³⁷ I owe the thought to Jeremy Waldron.

³⁸ The character theory of excuse is normally attributed to David Hume, who held that “actions are objects of our moral sentiment, so far only as they are indications of the internal character.” Hume, David, An Enquiry Concerning Human Understanding (LaSalle: Open Court, 1949), p. 108.Google Scholar Perhaps the foremost modern exponent of the character theory of excuse has been Richard Brandt. See Brandt, Richard, Ethical Theory (Englewood Cliffs: Prentice-Hall, 1959), pp. 465–74Google Scholar; Brandt, , “Blameworthiness and Obligation,” ed. Melden, A., Essays in Moral Philosophy (Seattle: University of Washington, 1958), pp. 1ffGoogle Scholar; Brandt, , “The Utilitarian Theory of Excuse,” Philosophical Review, vol. 78, no. 3 (July 1969), pp. 337–61CrossRefGoogle Scholar; and Brandt, A Motivational Theory of Excuse. For other defenses of the theory, see also Fletcher, , Rethinking Criminal Law, pp. 799–802Google Scholar; Nozick, Robert, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 387–84, 394–96Google Scholar; Bayles, “Character, Purpose, and Criminal Responsibility”; Vuoso, George, “Background, Responsibility, and Excuse,” Yale Law Journal, vol. 96, no. 7 (June 1987), pp. 1661–86CrossRefGoogle Scholar; Lacey, , State Punishment, pp. 67–78Google Scholar; and the as yet unpublished work of Tim Scanlon (“Quality of Will”) and Arenella, Peter (“In Praise of Blaming: The Centrality of Character,” 1989).Google Scholar As Scanlon discusses (“Quality of Will,” p. 13), the theory is implicit in Peter Strawson's general analysis of responsibility in terms of our reactive attitudes “not simply at what happens to us or to others as a result of what is done, but at the attitudes of agents towards ourselves or others as revealed [in] their actions.” See Strawson, P.F., “Freedom and Resentment,” ed. Watson, G., Free Will (Oxford: Oxford University Press, 1982), pp. 59–80.Google Scholar Gary Watson also explores this aspect of Strawson's thought in Watson, , “Responsibility and the Limits of Evil,” ed. Schoeman, F., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 256–86, particularly at p. 265.Google Scholar

³⁹ For discussion of character, see particularly Brandt, Ethical Theory, “Blameworthiness and Obligation,” and “The Utilitarian Theory of Excuse.” See also Brandt, , “Traits of Character: A Conceptual Analysis,” American Philosophical Quarterly, vol. 7, no. 1 (January, 1970), pp. 23–37.Google Scholar

⁴⁰ Dummett, Michael, Truth and Other Enigmas (Cambridge: Harvard University Press, 1978), pp. 14–16.Google Scholar

⁴¹ See Brandt, , “Traits of Character,” p. 26.Google Scholar

⁴² Ryle, Gilbert, The Concept of Mind (London: Hutcheson, 1949).Google Scholar

⁴³ Van Orman Quine, Willard, Word and Object (Cambridge, Mass.: MIT Press, 1960), pp. 222–25.Google Scholar See also Papineau, David, Theory and Meaning (Oxford: Clarendon Press, 1979), p. 182.CrossRefGoogle Scholar

⁴⁴ For my general views on how phenomenology interacts with physiology and behavior to get at the deep nature of mental states, see Michael S. Moore, “Mind, Brain, and the Unconscious.”

⁴⁵ Eagle, Morris, “Anatomy of the Self in Psychoanalytic Theory,” ed. Ruse, M., Nature Animated (Dordrecht: Reidel, 1983), pp. 133–61.CrossRefGoogle Scholar For a commentary on Eagle, see Moore, Michael S., “The Unity of Self,” pp. 163–202 of the same volume.Google Scholar

⁴⁶ Fingarette, Herbert, Self-Deception (London: Routledge and Kegan-Paul, 1969).Google Scholar

⁴⁷ Watson, Gary, “Free Agency,” Journal of Philosophy, vol. 72, no. 8 (April 1975), pp. 205–20.CrossRefGoogle Scholar

⁴⁸ Williams, Bernard, Problems of the Self (Cambridge: Cambridge University Press, 1973), pp. 15–18.CrossRefGoogle Scholar

⁴⁹ This appears to be the point at which Nicola Lacey believes the two theories of excuse diverge. See Lacey, , Slate Punishment, p. 68.Google Scholar

⁵⁰ Consider but one example: the moral judgment Morgan Forster invited us to make of Henry Wilcox in Forster's novel, Howard's End. Forster persuasively presents Henry as having a fatally flawed character because of his failure “to connect,” which defect was itself due to Henry's having a mind like “an unweeded garden.” We rightly blame Henry for his flawed character, quite independently of the fact that that character leads him to do actions that are themselves clumsily hurtful to himself and others.

⁵¹ Aristotle, , Nichomachean Ethics, pp. 395–99.Google Scholar For explications of the Aristotelian view, see Taylor, Charles, “Responsibility for Self,” ed. Rorty, A., The Identities of Persons (Berkeley: University of California Press, 1976), pp. 281–99.Google Scholar

⁵² Harry Frankfurt's description of our power to mold our own characters. Frankfurt, Harry, “Freedom of the Will and the Concept of a Person,” Journal of Philosophy, vol. 68, no. 1 (January 1971), pp. 5–20CrossRefGoogle Scholar; Frankfurt, , “Identification and Wholeheartedness,” ed. Schoeman, F., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 27–45.Google Scholar

⁵³ See Dressier, , “Some Reflections,” pp. 695–96Google Scholar for doubts on these grounds.

⁵⁴ Seen clearly by Vuoso, , “Background, Responsibility, and Excuse,” p. 1676Google Scholar; Wolf, Susan, “Sanity and the Metaphysics of Responsibility,” ed. Schoeman, F., Responsibility, Character, and the Emotions, pp. 46–62Google Scholar; and Watson, Gary, “Responsibility and the Limits of Evil,” p. 281.Google Scholar

⁵⁵ See, e.g., Nozick, , Philosophical Explanations, p. 396.Google Scholar

⁵⁶ For those too young to remember the Patty Hearst story, the 18-year-old Ms. Hearst was kidnapped by a group of would-be revolutionaries who subjected her to physical abuse, isolation, and indoctrination. At some point it appeared that this heiress to the conservative Hearst family empire succumbed to this indoctrination and believed in the justice of the revolutionary cause. She renamed herself “Tania” and appeared (complete with commando garb and assault rifle) in bank films as a voluntary participant in the revolutionary group's bank robbery.

⁵⁷ So argued by Dennett, Dan, “Mechanism and Responsibility,” ed. Honderich, T., Essays on Freedom of Action (London: Routledge and Regan Paul, 1973), pp. 175–80.Google Scholar

⁵⁸ See the discussions of this in Moore, , Law and Psychiatry, pp. 343–47Google Scholar, in Williams, Bernard, “Morality and the Emotions,” in his Problems of the Self pp. 207–229Google Scholar, and in Sabini and Silver.

⁵⁹ All such expressions may be found in Nozick, , Philosophical Explanations, p. 383Google Scholar; Bayles, , “Character, Purpose, and Criminal Responsibility,” p. 7Google Scholar; Brandt, , “A Motivational Theory of Excuse,” pp. 165, 169, 170, 171Google Scholar; Lacey, , Stole Punishment, p. 66Google Scholar; Fletcher, , Rethinking Criminal Law, pp. 799, 801.Google Scholar

⁶⁰ Vuoso, , “Background, Responsibility, and Excuse,” pp. 1672–73.Google Scholar

⁶¹ For the contrast between “historical” versus “mesh” theories of responsibility, see Fischer, John Martin, “Responsiveness and Moral Responsibility,” ed. Schoeman, F., Responsibility, Character, and the Emotions, pp. 81–100, at 103–5.Google Scholar Fischer is a choice theorist (his “reasons-responsiveness” test being his way of measuring free choice) who criticizes certain character theorists (Frankfurt, Watson) for being ahistorical in the sense indicated in the text.

⁶² See particularly Brandt, , “A Motivational Theory of Excuses,” pp. 184–94.Google Scholar

⁶³ Lacey, , State Punishment, pp. 65–72.Google Scholar

⁶⁴ Bayles, “Character, Purpose, and Criminal Responsibility.”

⁶⁵ See Lacey, , State Punishment, pp. 65, 73Google Scholar; Vuoso, “Background, Responsibility, and Excuse”; Strawson, “Freedom and Resentment”; Scanlon, “Quality of Will”; Watson, “Responsibility and the Limits of Evil”; Fletcher, , Rethinking Criminal Law, pp. 801–2Google Scholar; Nozick, , Philosophical Explanations, pp. 393–96.Google Scholar Of the character theorists, only Richard Brandt and Peter Arenella see clearly that a characterological conception of responsibility has no advantage over a choice conception in answering the hard determinist. See Brandt, , “A Motivational Theory of Excuse,” p. 172Google Scholar; Arenella, , “Character, Choice, and Moral Agency,” Social Philosophy & Policy, vol. 7, no. 2 (Spring 1990).CrossRefGoogle Scholar

⁶⁶ For a contemporary use of the character-stop argument, see Nozick, , Philosophical Explanations, pp. 395.Google Scholar The character-stop argument has not been without its critics. See, e.g., Hospers, John, “Meaning and Free Will,” Philosophy and Phenomenological Research, vol. 10 (1950), pp. 307–30.CrossRefGoogle Scholar

⁶⁷ Schoeman, Ferdinand, “Introduction,” Responsibility, Character, and the Emotions, p. 5.Google Scholar Schoeman appears to favor the character theory of excuse (see ibid., pp. 2–3), perhaps because he is not so convinced of the truth of compatibilism.

⁶⁸ Moore, , “The Interpretive Turn in Modern Theory: A Turn for the Worse?,” Stanford Law Review, vol. 41, no. 4 (April 1989), pp. 871–957.CrossRefGoogle Scholar

⁶⁹ See the discussion in Moore, , Law and Psychiatry, p. 228.Google Scholar Because the M'Naughten test required that a defendant be unable to know either the nature and quality of his action or that it was wrong in order to be excused by reason of insanity, many psychiastrists were frustrated by the lack of fit of their “stories” (psychiatric explanations) and the story the law required them to tell. In criticizing the M'Naughten test on this ground, what they overlooked was why the law should care that their story didn't fit the law's concerns about responsibility and blame.

⁷⁰ Fletcher, , Rethinking Criminal Law, p. 800.Google Scholar

⁷¹ Lacey, , State Punishment, p. 68.Google Scholar

⁷² The facts below are taken from Gaylin, William, The Killing of Bonnie Garland (New York: Penguin Books, 1983).Google Scholar

⁷³ ibid., p. 325.

⁷⁴ Lacey, , State Punishment, pp. 189–90.Google Scholar

⁷⁵ ibid., p. 189.

⁷⁶ ibid., p. 71.

⁷⁷ ibid., p. 77.

⁷⁸ For a discussion of these three factors as determining personal identity, see Moore, Michael, “The Unity of the Self,” ed. Ruse, M., Nature Animated (Dordrecht: Reidel, 1982)Google Scholar, revised and reprinted as chapters 3 and 11 of Moore, Law and Psychiatry.

⁷⁹ I explore some of these in Law and Psychiatry, pp. 147–52.

⁸⁰ Perhaps Lacey intends a less metaphysical defense here. To speak of a “sense of identity” is not necessarily to speak of personal identity, for who we think we are need not coincide with who we are in fact. Yet then Lacey has no basis for saying that an action out of character is not our action. Rather, such a phenomenological observation can only generate the conclusion that we have disowned (not identified with) one of our own actions.

⁸¹ I pursue this thought-experiment in the context of justifying a retributive theory of punishment in Moore, , “The Moral Worth of Retribution,” pp. 212–16.Google Scholar

⁸² See Katz, Jay, Goldstein, Joseph, and Dershowitz, Alan, Psychoanalysis, Psychiatry, and Law (New York: Free Press, 1967), pp. 526–35Google Scholar for the history of the real Dallas Williams.

⁸³ Fletcher, , Rethinking, pp. 800–801.Google Scholar

⁸⁴ For example, Lacey's argument in State Punishment, p. 199. The criminal law's “actus reus requirement” forbids punishment for bad states of mind or bad character; it is necessary for punishment that the defendant performed a forbidden action.

⁸⁵ Nozick, sees the question clearly (Philosophical Explanations, pp. 380–82)Google Scholar before giving his own answer (ibid., pp. 383–84).

⁸⁶ ibid., p. 384.

⁸⁷ Lacey makes both of these points: she concludes that “negligence liability… sits unhappily with traditional conceptions of responsibility in the criminal law” (State Punishment, pp. 105–6), and that “the link with a possible rationale for negligence liability is obvious” (ibid, p. 66) on the character theory of responsibility.

⁸⁸ A choice theorist who rejects my notion of choice might deny that we ever do hold people responsible for unchosen actions. Negligence, he might say, is not a metis rea requirement like knowledge or recklessness; rather, it is a criterion of wrongful action. As such, the injunction “don't kill negligently” is a shorthand for all the injunctions aimed at more particular actions, such as “don't shoot at a target without first ascertaining whether someone is behind it or not.” And those latter acts, he might conclude, are chosen under every aspect that makes them wrongful. The lesser responsibility for negligent (as opposed to intentional) killing is not due to the differential presence of choice, but the differential wrongness of the acts chosen.

Tempting as this line may be, it slurs over the crucial fact that someone who only negligently kills (e.g., by shooting at a paper target without checking for persons behind it) does not choose just that feature of his action that makes it wrongful; in the example given, he does not make a choice one way or the other about checking. It simply doesn't occur to him to check, although it should have.

⁸⁹ Hart, H.L.A., “Negligence, Metis Rea, and Criminal Responsibility,” in Punishment and Responsibility, pp. 136–57.Google Scholar I earlier adopted Hart's view in Law and Psychiatry, pp. 81–84.

⁹⁰ A point on which Hart's view of the moral idea of negligence diverges considerably from present law on the subject. See “Negligence, Mens Rea, and Criminal Responsibility,” pp. 152–57.

⁹¹ ibid., p. 152.

⁹² ibid., p. 140.

⁹³ Lacey, , State Punishment, p. 66.Google Scholar

⁹⁴ ibid.

⁹⁵ The extent to which this last statement is true depends upon the degree to which we individualize the standard of care by virtue of which we judge an actor negligent. If morality is like Anglo-American law here, ignoring the different degrees to which people are hasty, awkward, and stupid, then our judgments of carelessness are blind to these different explanations of carelessness.

⁹⁶ A conclusion that should be agreed to by character theorists too. See Bayles, , “Character, Purpose, and Criminal Responsibility,” pp. 10–11, who sees that “on the basis of one careless act, the inference to a careless attitude is less valid,” sees that such carelessness “does not indicate an attitude of indifference to standards of care,” and concludes that, on the character theory, “the basis for blame [for negligence] is much less sure.”Google Scholar

⁹⁷ See Dressier, , “Reflections,” p. 693Google Scholar, n.107, for a partial list of where the law appears to take character into account. See also Bayles, “Character, Purpose, and Criminal Responsibility.”