¹ See Doris, John, Lack of Character (New York: Cambridge University Press, 2002)CrossRefGoogle Scholar; Harman, Gilbert, “Moral Philosophy Meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error,” Proceedings of the Aristotelian Society 99 (1999): 315–31CrossRefGoogle Scholar; and Vranas, Peter, “The Indeterminacy Paradox: Character Evaluations and Human Psychology,” Nous 39 (2005): 1–42CrossRefGoogle Scholar. For an earlier and less revisionary philosophical discussion of situationist findings, see Flanagan, Owen, Varieties of Moral Personality (Cambridge: Harvard University Press, 1991)Google Scholar.

² Doris has developed the arguments that interest me the furthest and drawn the most revisionary conclusions, and so I will focus on his discussion. Much of my discussion of Doris applies to Harman. Vranas's discussion is narrower and in important respects more circumspect and nuanced. My reservations about Doris's arguments may not apply to Vranas.

³ Doris, John and Murphy, Dominic, “From My Lai to Abu Ghraib: The Moral Psychology of Atrocity,” Midwest Studies in Philosophy 31 (2007): 25–55CrossRefGoogle Scholar.

⁴ In this way, my response to Doris's situationist arguments differs from the response offered in Nelkin, Dana, “Freedom, Responsibility, and the Challenge of Situationism,” Midwest Studies in Philosophy 29 (2005): 181–206CrossRefGoogle Scholar. Nelkin contrasts two ways of responding to the situationist challenge to responsibility—one is to measure the significance of situationist findings against a particular conception of responsibility, while another is to ask, prior to the adoption of a particular conception of responsibility, why situationist findings might seem to threaten responsibility and then to see if those worries are well founded. Whereas Nelkin pursues the second strategy, I pursue the first.

⁵ Ross, Lee and Nisbett, Richard, The Person and the Situation (Philadelphia: Temple University Press, 1991), 4Google Scholar.

⁶ Asch, Solomon, “Effects of Group Pressures on the Modification and Distortion of Judgment,” in Groups, Leadership, and Men, ed. Guetzkow, H. (Pittsburgh: Carnegie Press, 1951)Google Scholar.

⁷ Isen, Alice and Levin, Paula, “Effect of Feeling Good on Helping,” Journal of Personality and Social Psychology 21 (1972): 384–88CrossRefGoogle ScholarPubMed.

⁸ Darley, Jon and Baton, Daniel, “From Jerusalem to Jericho: A Study of Situational and Dispositional Variables in Helping Behavior,” Journal of Personality and Social Psychology 27 (1973): 100–108CrossRefGoogle Scholar.

⁹ Milgram, Stanley, Obedience to Authority (New York: Harper & Row, 1969)Google Scholar.

¹⁰ The Stanford Prison Experiment took place in the early 1970s. See Zimbardo, Philip, The Lucifer Effect (New York: Random House, 2007)Google Scholar.

¹¹ I provide references to Doris, Lack of Character parenthetically in the text hereafter.

¹² See Sunstein, Cass and Thaler, Richard, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven: Yale University Press, 2008)Google Scholar.

¹³ See Mischel, Walter, Personality and Assessment (Hoboken: John Wiley & Sons, 1968)Google Scholar and Ross and Nisbett, The Person and the Situation. For a philosophical analysis of this strand in the empirical work, see Russell, Daniel, Practical Intelligence and the Virtues (Oxford: Clarendon Press, 2009), esp. chaps. 8–9CrossRefGoogle Scholar.

¹⁴ Several philosophers have raised questions about Doris's behavioral assumptions about character traits and his demand for cross-situational consistency. See, for example, Adams, Robert, A Theory of Virtue (Oxford: Clarendon Press, 2006), esp. chap. 8CrossRefGoogle Scholar, and Russell, Practical Intelligence and the Virtues, esp. chaps. 8–9. One would like to know whether some of Milgram's subjects thought about their choices in the experiment and behaved differently, going forward, as the result of the experiment and the debriefing afterward. There is no reason to expect this sort of effect in unconflicted subjects, but it would be a real possibility for conflicted subjects. Milgram reports that some subjects later reported having learned important things about themselves from the experiment. See Obedience to Authority, 200.

¹⁵ Cf. Kamtekar, Rachana, “Situationism and Virtue Ethics on the Content of our Character,” Ethics 114 (2004): 458–91CrossRefGoogle Scholar.

¹⁶ See Milgram, Obedience to Authority, 200.

¹⁷ The reasons-responsive tradition of moral responsibility on which I draw is reflected in Wolf, Susan, Freedom within Reason (New York: Oxford University Press, 1990)Google Scholar; Wallace, R. Jay, Responsibility and the Moral Sentiments (Cambridge: Harvard University Press, 1994)Google Scholar; Fischer, John and Ravizza, Mark, Responsibility and Control (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar; and Nelkin, Dana, Making Sense of Freedom and Responsibility (Oxford: Clarendon Press, 2011)CrossRefGoogle Scholar. The fair choice literature in criminal jurisprudence on which I draw is reflected in Hart, H. L. A., Punishment and Responsibility (Oxford: Clarendon Press, 1968)Google Scholar; Moore, Michael, Placing Blame (Oxford: Clarendon Press, 1997)Google Scholar; and Morse, Stephen, “Culpability and Control,” University of Pennsylvania Law Review 142 (1994): 1587–1660CrossRefGoogle Scholar and “Uncontrollable Urges and Irrational People,” Virginia Law Review 88 (2002): 1025–78CrossRefGoogle Scholar. A fuller presentation of the conception of responsibility as the fair opportunity to avoid wrongdoing is contained in Brink, David O. and Nelkin, Dana K., “Fairness and the Architecture of Responsibility,” Oxford Studies in Agency and Responsibility 1 (2013): 284–313CrossRefGoogle Scholar.

¹⁸ Here, I draw on related ideas in Nozick, Robert, Philosophical Explanations (Cambridge: Harvard University Press, 1981), 363–66Google Scholar.

¹⁹ This is one of several ways in which forward-looking considerations can play a role in a conception of punishment that is constrained by backward-looking retributive concerns. Elsewhere, I describe this broadly retributive commitment as predominant retributivism. See, for example, Brink, David O., “Retributivism and Legal Moralism,” Ratio Juris 25 (2012): 496–512CrossRefGoogle Scholar.

²⁰ I leave to another occasion the question whether there are other significant differences between moral and criminal responsibility.

²¹ M'Naghten's Case, 10 Cl. & F. 200, 8 Eng. Rep. 718 (1843).

²² Cf. Mele, Al, “Irresistible Desires,” Nous 24 (1990): 455–72CrossRefGoogle Scholar. Mele understands a desire as conquerable when one can resist it and as circumventable when one can perform an action that makes acting on the desire impossible or at least more difficult. The alcoholic who simply resists cravings conquers his impulses, whereas the alcoholic who throws out his liquor and stops associating with former drinking partners or won't meet them at places where alcohol is served circumvents his impulses. Conquerability is mostly a matter of will power, whereas circumventability is mostly a matter of foresight and strategy.

²³ Phineas Gage was a nineteenth-century railway worker who was laying tracks in Vermont and accidentally used his tamping iron to tamp down a live explosive charge, which detonated and shot the iron bar up and through his skull. Though he did not lose consciousness, over time his character was altered. Whereas he had been described as someone possessing an “iron will” before the accident, afterward he had considerable difficulty conforming his behavior to his own judgments about what he ought to do. The story of Phineas Gage is related, and its larger significance explored, in Damasio, Antonio, Descartes' Error: Emotion, Reasons, and the Human Brain (New York: Putnam, 1994)Google Scholar.

²⁴ American Law Institute, Model Penal Code, section 4.01, emphasis added. The Model Penal Code (MPC) is a model statutory text of fundamental provisions of the criminal law, first developed by the American Law Institute in 1962 and subsequently updated in 1981. The MPC was intended to serve as a model for local jurisdictions drafting and revising their criminal codes.

²⁵ Aristotle, Nicomachean Ethics, trans. Irwin, T. (Indianapolis: Hackett, 1985), 1110a9-12Google Scholar.

²⁶ The details of duress are tricky. Some situational pressures, such as the need to choose the lesser of two evils, may actually justify the agent's conduct, as is recognized in necessity defenses. If the balance of evils is such that the evil threatened to the agent is worse than the evil involved in her wrongdoing, then compliance with the threat is justified. But in an important range of cases, coercion and duress seem not to justify conduct (remove the wrongdoing) but rather to excuse wrongdoing, in whole or in part. In such cases, where the evil threatened is substantial but less than that contained in the wrongdoing, the agent's wrongdoing should be excused because the threat or pressure was more than a person could or should be expected to resist. Whether the difference between when duress justifies and when it excuses should be settled by applying the balance of evils test depends on the moral framework in which we measure evils. The criminal law tends to assume a consequentialist version of the test, but one might instead measure the moral seriousness of evils in ways that reflect agent-centered prerogatives.

²⁷ It is common to observe that strict liability is anomalous in the criminal law. Statutory rape laws that do not admit reasonable belief that the minor was an adult as a defense are sometimes cited as the main exception to the generalization that strict liability crimes are not recognized. Moreover, this particular conception of statutory rape is itself anomalous, recognized only in a minority of jurisdictions, and is widely criticized by commentators as unfair. However, someone might point to strict liability conceptions of traffic laws as further evidence of the willingness to tolerate strict liability crimes. To see why none of these laws is in fact a strict liability crime in the relevant sense, we must see that there are two distinct conceptions of strict liability crimes corresponding to two distinct conceptions of culpability. The criminal law conceives of wrongdoing as having two parts: actus reus and mens rea. The actus reus refers to the objective elements (action type, consequences, and attendant circumstances) that constitute the offense, whereas the mens rea refers to the mental element ingredient in the offense, such as whether the harmful act was intended or merely foreseen or was performed negligently or recklessly. Within the criminal law, culpability has two senses: in its narrow sense, culpability refers the mental elements that are ingredient in a crime (its mens rea); in its broader sense, culpability refers to blameworthiness or responsibility. Because culpability has these two distinct senses, and because strict liability crimes would be crimes in which there was liability without culpability, there are, in principle, two possible conceptions of strict liability crimes. (1) One kind of strict liability crime would be a crime that does not require any specific mental element as an ingredient in the offense. (2) Another kind of strict liability crime would be one that does not require blameworthiness or responsibility as a condition of blame and punishment. The wisdom of recognizing the first kind of strict liability crime is an interesting question, but there can be and are strict liability crimes in this sense. However, there are no strict liability crimes in the second sense, because insanity and duress, which are excuses denying responsibility (in different ways), are perfectly general defenses, applicable to all crimes. So even crimes that would be strict liability crimes in the first sense, requiring no particular mens rea, admit of defenses that establish insanity or duress. So while both kinds of strict liability crimes are problematic in the criminal law, the criminal law refuses to recognize the second kind of strict liability crime, because such crimes would be unfair.

²⁸ Interestingly, in “From My Lai to Abu Ghraib: The Moral Psychology of Atrocity” Doris and Murphy rely exclusively on a normative competence conception of responsibility.

²⁹ Cf. Hume, David's claims in An Enquiry Concerning Human Understanding, ed. Nidditch, P. H. (1748; Oxford: Clarendon Press, 1975)Google Scholar. {fn_ext}The only proper object of hatred or vengeance is a person or creature, endowed with thought or consciousness; and when any criminal or injurious actions excite that passion, it is only by their relation to the person, or connection with him. Actions are by their very nature temporary and perishing; and where they proceed not from some cause in the character and disposition of the person who performed them, they can neither redound to his honour, if good; nor infamy, if evil. The actions themselves may be blameable; they may be contrary to all the rules of morality and religion: But the person is not answerable for them; and as they proceeded from nothing in him, that is durable and constant, and leave nothing of that nature behind them, it is impossible that he can, on their account, become the object of punishment or vengeance [section VIII, part ii].

³⁰ The Herrin case is discussed, as part of a similar worry about the under-inclusiveness of characterological conceptions of responsibility, in Moore, Placing Blame, 578–80.

³¹ See Frankfurt, Harry, “Freedom of the Will and the Concept of a Person,” Journal of Philosophy 68 (1971): 5–20CrossRefGoogle Scholar and Watson, Gary, “Free Agency,” Journal of Philosophy 72 (1975): 205–20CrossRefGoogle Scholar.

³² John Austin, “Ifs and Cans,” in Austin, John, Philosophical Papers (Oxford: Clarendon Press, 1961), 166Google Scholar.

³³ See Dennett, Daniel, Freedom Evolves (New York: Viking, 2003), 75–76Google Scholar.

³⁴ Milgram, Obedience to Authority, 34–35.

³⁵ Ibid., 59–60.

³⁶ Ibid., 70–72.

³⁷ I provide references to Doris and Murphy, “From My Lai to Abu Ghraib: The Moral Psychology of Atrocity” parenthetically in the text hereafter.

³⁸ The military criminal code appears to rely on a M'Naghten-style cognitive conception of normative competence. See Manual for Courts Martial 2012, Rule 706, especially 706(c)(2)(A), and 916(b)(2)Google Scholar. My own view is that the failure to recognize a distinct volitional dimension to normative competence is a mistake here, as it is in the M'Naghten test.

³⁹ See Model Penal Code section 2.10 and Manual for Courts Martial 2012, Rule 916(d)Google Scholar.

⁴⁰ See Seymour Hersh, “The My Lai Massacre,” a three-part article in the St. Louis Dispatch, November 1969 and Bilton, Michael and Sim, Kevin, Four Hours in My Lai (New York: Viking, 1992)Google Scholar.

⁴¹ Hersh, Seymour, “Torture at Abu Ghraib,” The New Yorker May 10, 2004Google Scholar.

⁴² By contrast, in The Lucifer Effect, Zombardo explicitly notes and explores parallels between the Stanford Prison Experiment and wartime atrocities, especially at Abu Ghraib.

⁴³ Those not religiously inclined may think instead: There, but for the natural and social lotteries, go I.

⁴⁴ The one exception to the generalization that American criminal law does not recognize partial excuse is the provocation defense, under which intentional homicides committed with adequate provocation reduce to an offense of voluntary manslaughter. Even this is not a clear exception inasmuch as it is unclear whether provocation is best conceptualized as a partial justification or a partial excuse.