Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book is a comprehensive analysis of the criminal defence of self-defence from a philosophical, legal, and human rights perspective. The primary focus is on self-defence as a defence to homicide, ...
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This book is a comprehensive analysis of the criminal defence of self-defence from a philosophical, legal, and human rights perspective. The primary focus is on self-defence as a defence to homicide, as this is the most difficult type of self-defensive force to justify. Although not always recognised as such, self-defence is a contentious defence, permitting as it does the victim of an attack to preserve her life at the expense of another. If one holds that all human life is of equal value, explaining why this is permissible poses something of a challenge. It is particularly difficult to explain where the aggressor is, for reasons of non-age or insanity for example, not responsible for her actions. The first part of the book identifies the proper theoretical basis of a claim of self-defence. It examines the classification of defences, and the concepts of justification and excuse in particular, and locates self-defence within this classification. It then proceeds critically to analyse various philosophical explanations of why self-defensive killing is justified, before concluding that the most convincing account is one that draws on the right to life with an accompanying theory of forfeiture. The book then proceeds to draw upon this analysis to examine various aspects of the law of self-defence, including retreat, imminence of harm, self-generated self-defence, mistake, and proportionality. The analysis draws on material from all of the major common law jurisdictions and the various jurisdictions of the US. The book concludes with an examination of the implications that the European Convention on Human Rights might have for the law of self-defence.Less
This book is a comprehensive analysis of the criminal defence of self-defence from a philosophical, legal, and human rights perspective. The primary focus is on self-defence as a defence to homicide, as this is the most difficult type of self-defensive force to justify. Although not always recognised as such, self-defence is a contentious defence, permitting as it does the victim of an attack to preserve her life at the expense of another. If one holds that all human life is of equal value, explaining why this is permissible poses something of a challenge. It is particularly difficult to explain where the aggressor is, for reasons of non-age or insanity for example, not responsible for her actions. The first part of the book identifies the proper theoretical basis of a claim of self-defence. It examines the classification of defences, and the concepts of justification and excuse in particular, and locates self-defence within this classification. It then proceeds critically to analyse various philosophical explanations of why self-defensive killing is justified, before concluding that the most convincing account is one that draws on the right to life with an accompanying theory of forfeiture. The book then proceeds to draw upon this analysis to examine various aspects of the law of self-defence, including retreat, imminence of harm, self-generated self-defence, mistake, and proportionality. The analysis draws on material from all of the major common law jurisdictions and the various jurisdictions of the US. The book concludes with an examination of the implications that the European Convention on Human Rights might have for the law of self-defence.
J. L. Austin
J. O. Urmson and G. J. Warnock (eds)
- Published in print:
- 1979
- Published Online:
- November 2003
- ISBN:
- 9780192830210
- eISBN:
- 9780191597039
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019283021X.001.0001
- Subject:
- Philosophy, Philosophy of Language
This text collects all Austin’s published articles plus a new one, ch. 13, hitherto unpublished. The analysis of the ordinary language to clarify philosophical questions is the common element of the ...
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This text collects all Austin’s published articles plus a new one, ch. 13, hitherto unpublished. The analysis of the ordinary language to clarify philosophical questions is the common element of the 13 papers. Chapters 2 and 4 discuss the nature of knowledge, focusing on ‘performative utterances’. The doctrine of ‘speech acts’, i.e. a statement may be the pragmatic use of language, is discussed in Chs 6 and 10. Chapters 8, 9, and 12 reflect on the problems the language encounters in discussing actions and consider the cases of excuses, accusations, and freedom. The ‘correspondence theory’, i.e. a statement is truth when it corresponds to a fact, is presented in Chs 5 and 6. Finally, Chs 1 and 3 study how a word may have different but related senses considering Aristotle’s view. Chapters 11 and 13 illustrate the meaning of ‘pretending’ and a Plato’s text respectively.Less
This text collects all Austin’s published articles plus a new one, ch. 13, hitherto unpublished. The analysis of the ordinary language to clarify philosophical questions is the common element of the 13 papers. Chapters 2 and 4 discuss the nature of knowledge, focusing on ‘performative utterances’. The doctrine of ‘speech acts’, i.e. a statement may be the pragmatic use of language, is discussed in Chs 6 and 10. Chapters 8, 9, and 12 reflect on the problems the language encounters in discussing actions and consider the cases of excuses, accusations, and freedom. The ‘correspondence theory’, i.e. a statement is truth when it corresponds to a fact, is presented in Chs 5 and 6. Finally, Chs 1 and 3 study how a word may have different but related senses considering Aristotle’s view. Chapters 11 and 13 illustrate the meaning of ‘pretending’ and a Plato’s text respectively.
Jeff McMahan
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199548668
- eISBN:
- 9780191721045
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548668.003.0004
- Subject:
- Philosophy, Moral Philosophy, Philosophy of Language
This chapter distinguishes among a variety of morally different types of threatening individual — for example, those who are culpable, those who are excused, those who are partially excused, those ...
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This chapter distinguishes among a variety of morally different types of threatening individual — for example, those who are culpable, those who are excused, those who are partially excused, those who are justified, and so on. It argues that the moral basis of liability to defensive violence is moral responsibility for a threat of wrongful harm and claims that on this criterion virtually all who fight in wars that lack a just cause are liable to military attack. It then considers whether these combatants are also liable to punishment in the aftermath of war and discusses whether the excuses available to them may impose a requirement of restraint in fighting against them. It concludes by discussing the moral status of child soldiers.Less
This chapter distinguishes among a variety of morally different types of threatening individual — for example, those who are culpable, those who are excused, those who are partially excused, those who are justified, and so on. It argues that the moral basis of liability to defensive violence is moral responsibility for a threat of wrongful harm and claims that on this criterion virtually all who fight in wars that lack a just cause are liable to military attack. It then considers whether these combatants are also liable to punishment in the aftermath of war and discusses whether the excuses available to them may impose a requirement of restraint in fighting against them. It concludes by discussing the moral status of child soldiers.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0012
- Subject:
- Law, Philosophy of Law
A host of moral and legal philosophers apparently define excuses to preclude the existence of a justification, but do not define justifications to preclude the existence of an excuse. This chapter ...
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A host of moral and legal philosophers apparently define excuses to preclude the existence of a justification, but do not define justifications to preclude the existence of an excuse. This chapter argues that these definitions should be rejected; they are poorly motivated and beg questions that should remain open. It is conceptually possible for a person to have both an excuse as well as a justification for the same crime. Moreover, there is no good reason to characterize these defences so that a person should always prefer morally to be justified than to be excused.Less
A host of moral and legal philosophers apparently define excuses to preclude the existence of a justification, but do not define justifications to preclude the existence of an excuse. This chapter argues that these definitions should be rejected; they are poorly motivated and beg questions that should remain open. It is conceptually possible for a person to have both an excuse as well as a justification for the same crime. Moreover, there is no good reason to characterize these defences so that a person should always prefer morally to be justified than to be excused.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0013
- Subject:
- Law, Philosophy of Law
This chapter describes a number of circumstances in which persons are exempt from blame — in both a moral and criminal context — because most other persons in similar circumstances would have done ...
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This chapter describes a number of circumstances in which persons are exempt from blame — in both a moral and criminal context — because most other persons in similar circumstances would have done what they did. It is argued this alleged defence is plausible on normative grounds, even though it typically fails for empirical reasons.Less
This chapter describes a number of circumstances in which persons are exempt from blame — in both a moral and criminal context — because most other persons in similar circumstances would have done what they did. It is argued this alleged defence is plausible on normative grounds, even though it typically fails for empirical reasons.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0014
- Subject:
- Law, Philosophy of Law
This chapter theorizes about partial defences — those that reduce the severity of punishment without precluding criminal liability altogether. Many but not all partial defences are partial ...
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This chapter theorizes about partial defences — those that reduce the severity of punishment without precluding criminal liability altogether. Many but not all partial defences are partial justifications or excuses which mitigate punishment by reducing the wrongfulness of conduct (in the case of partial justifications) or the blameworthiness of the agent (in the case of partial excuses). The chapter explores the relationship between partial and complete defences and tentatively supports a hypothesis according to which we should recognize a given partial defence if it has an analogue in a complete defence.Less
This chapter theorizes about partial defences — those that reduce the severity of punishment without precluding criminal liability altogether. Many but not all partial defences are partial justifications or excuses which mitigate punishment by reducing the wrongfulness of conduct (in the case of partial justifications) or the blameworthiness of the agent (in the case of partial excuses). The chapter explores the relationship between partial and complete defences and tentatively supports a hypothesis according to which we should recognize a given partial defence if it has an analogue in a complete defence.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0015
- Subject:
- Law, Philosophy of Law
This chapter examines the de minimis plea: the allegation that the wrongfulness of the defendant's criminal conduct is too trivial to justify the imposition of penal liability and punishment. It ...
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This chapter examines the de minimis plea: the allegation that the wrongfulness of the defendant's criminal conduct is too trivial to justify the imposition of penal liability and punishment. It argues that a critical examination of this neglected defence sheds important light on several of the most central topics in criminal theory: criminalization, the rule of law and the parameters of discretion, the relationship between morality and law, the structure of wrongdoing, the contrast between offenses and defences, the concepts of justification and excuse, and even the nature of retributive justice itself.Less
This chapter examines the de minimis plea: the allegation that the wrongfulness of the defendant's criminal conduct is too trivial to justify the imposition of penal liability and punishment. It argues that a critical examination of this neglected defence sheds important light on several of the most central topics in criminal theory: criminalization, the rule of law and the parameters of discretion, the relationship between morality and law, the structure of wrongdoing, the contrast between offenses and defences, the concepts of justification and excuse, and even the nature of retributive justice itself.
Michael S. Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.001.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. ...
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The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. Explanatory, evaluative and descriptive theories are distinguished, and the partly normative nature of ‘descriptive’ theories is defended. Boundary conditions for what counts as an area of law are also developed and applied to criminal law. The book then proceeds in three parts. Part I defines and defends a retributive theory of punishment, a theory according to which the sole function of the criminal law is to punish those who deserve to suffer for their culpable wrongdoing. The other two parts of the book detail the implications of this view of the end of punishment, for the kinds of doctrines and institutions the criminal law both does and should have. Part II develops these implications for what is called the ‘general part’ of the criminal law. This part contains the doctrines, principles, and policies that apply to all crimes and that give each of them a common basic structure. The retributive point of punishment requires that there be a theory of when persons are morally responsible and thus deserving of punishment. The theory of responsibility that constitutes the general part of the criminal law, abstractly stated, is developed, first, by answering general questions about the role of various desert determiners, particularly emphasizing the role of causation and intention in the ascription of fault. The theory of responsibility is further developed by attention to the nature of the various desert-determiners: voluntary action, causation, intention, belief, absence of excuse, and basic moral agency and personhood. These are seen as the major determiners of moral desert. Part III develops the implications of retributive punishment for what is called the ‘special part’ of the criminal law. This is the part dealing with what a criminal code both does and should prohibit. The theory here developed is what often called a non-perfectionist, legal moralist theory of criminal legislation. The basic idea is that the criminal law has no business attempting to punish or coerce moral virtue but that, prima facie, it has every business in enforcing moral obligation. This theory of the proper reach of criminal legislation is, it is argued, an implication of the retributive point of punishment. Breach of moral obligation constitutes moral wrongdoing while lapses of virtue do not, which is why retributive punishment is fit for the one but not for the other. Depending on one’s moral views about the extent of our moral obligations, this alone can lead to a quite restricted view of the proper subjects of criminal prohibition. If we have no obligations about how we practice sexual intimacy, for example, then the legal moralist theory rejects these as proper subjects of criminal prohibitions. The book argues that the legal moralist theory should recommend even more restrictions on the proper subjects of criminal legislation in light of other considerations, such as epistemic doubt, the intrinsic goodness of liberty, the hidden costs of criminalization for certain behaviours that are unwitnessed, private, and victimless. The result is a theory of criminal legislation that is quite liberal in the restraints it urges on the content of the criminal law, even if quite illiberal in the form of the argument for those restraints.Less
The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. Explanatory, evaluative and descriptive theories are distinguished, and the partly normative nature of ‘descriptive’ theories is defended. Boundary conditions for what counts as an area of law are also developed and applied to criminal law. The book then proceeds in three parts. Part I defines and defends a retributive theory of punishment, a theory according to which the sole function of the criminal law is to punish those who deserve to suffer for their culpable wrongdoing. The other two parts of the book detail the implications of this view of the end of punishment, for the kinds of doctrines and institutions the criminal law both does and should have. Part II develops these implications for what is called the ‘general part’ of the criminal law. This part contains the doctrines, principles, and policies that apply to all crimes and that give each of them a common basic structure. The retributive point of punishment requires that there be a theory of when persons are morally responsible and thus deserving of punishment. The theory of responsibility that constitutes the general part of the criminal law, abstractly stated, is developed, first, by answering general questions about the role of various desert determiners, particularly emphasizing the role of causation and intention in the ascription of fault. The theory of responsibility is further developed by attention to the nature of the various desert-determiners: voluntary action, causation, intention, belief, absence of excuse, and basic moral agency and personhood. These are seen as the major determiners of moral desert. Part III develops the implications of retributive punishment for what is called the ‘special part’ of the criminal law. This is the part dealing with what a criminal code both does and should prohibit. The theory here developed is what often called a non-perfectionist, legal moralist theory of criminal legislation. The basic idea is that the criminal law has no business attempting to punish or coerce moral virtue but that, prima facie, it has every business in enforcing moral obligation. This theory of the proper reach of criminal legislation is, it is argued, an implication of the retributive point of punishment. Breach of moral obligation constitutes moral wrongdoing while lapses of virtue do not, which is why retributive punishment is fit for the one but not for the other. Depending on one’s moral views about the extent of our moral obligations, this alone can lead to a quite restricted view of the proper subjects of criminal prohibition. If we have no obligations about how we practice sexual intimacy, for example, then the legal moralist theory rejects these as proper subjects of criminal prohibitions. The book argues that the legal moralist theory should recommend even more restrictions on the proper subjects of criminal legislation in light of other considerations, such as epistemic doubt, the intrinsic goodness of liberty, the hidden costs of criminalization for certain behaviours that are unwitnessed, private, and victimless. The result is a theory of criminal legislation that is quite liberal in the restraints it urges on the content of the criminal law, even if quite illiberal in the form of the argument for those restraints.
Brian H. Bornstein and Monica K. Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.003.009
- Subject:
- Psychology, Forensic Psychology
Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their ...
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Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.Less
Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.
A. P. Simester and A. T. H. Smith (eds)
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198260578
- eISBN:
- 9780191682124
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198260578.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book draws together original and significant chapters from a number of leading authorities which identify areas of the modern criminal law where there are significant conceptual difficulties. ...
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This book draws together original and significant chapters from a number of leading authorities which identify areas of the modern criminal law where there are significant conceptual difficulties. The project developed from a series of seminars in Cambridge University, in which leading Anglo-American philosophers, criminal lawyers, and legal theorists explored subjects such as attempts, intention, justification, excuses, coercion, complicity, drug-dealing, and criminal harm. The topics covered in this collection were chosen for their topicality as well as their theoretical and practical significance.Less
This book draws together original and significant chapters from a number of leading authorities which identify areas of the modern criminal law where there are significant conceptual difficulties. The project developed from a series of seminars in Cambridge University, in which leading Anglo-American philosophers, criminal lawyers, and legal theorists explored subjects such as attempts, intention, justification, excuses, coercion, complicity, drug-dealing, and criminal harm. The topics covered in this collection were chosen for their topicality as well as their theoretical and practical significance.
Solomon Schimmel
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780195128413
- eISBN:
- 9780199834648
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195128419.003.0003
- Subject:
- Religion, Religion and Society
Defines forgiveness, and contrasts it with related concepts, namely, to condone, to excuse, to justify, to exonerate, to forget, to atone, and to reconcile, providing concrete examples of each of ...
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Defines forgiveness, and contrasts it with related concepts, namely, to condone, to excuse, to justify, to exonerate, to forget, to atone, and to reconcile, providing concrete examples of each of these. Forgiveness can be an internal, therapeutic process of letting go of anger and resentment, or an interpersonal one of forgoing legal and/or moral claims the victim of an injury has on a perpetrator. The chapter compares and contrasts the views of Judaism and Christianity on whether a victim is morally obligated to forgive a perpetrator when the perpetrator does not repent of his or her misdeed. The trait of “forgivingness” is discussed and the relationship of the tendency to forgive with personality characteristics of being prone to guilt and to shame.Less
Defines forgiveness, and contrasts it with related concepts, namely, to condone, to excuse, to justify, to exonerate, to forget, to atone, and to reconcile, providing concrete examples of each of these. Forgiveness can be an internal, therapeutic process of letting go of anger and resentment, or an interpersonal one of forgoing legal and/or moral claims the victim of an injury has on a perpetrator. The chapter compares and contrasts the views of Judaism and Christianity on whether a victim is morally obligated to forgive a perpetrator when the perpetrator does not repent of his or her misdeed. The trait of “forgivingness” is discussed and the relationship of the tendency to forgive with personality characteristics of being prone to guilt and to shame.
Michael S. Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599509
- eISBN:
- 9780191594656
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599509.003.0007
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
Whether there is a unitary and coherent doctrine that can be referred to as the ‘actus reus requirement’ is the topic of this chapter. Two worries about this doctrine are examined and allayed. One is ...
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Whether there is a unitary and coherent doctrine that can be referred to as the ‘actus reus requirement’ is the topic of this chapter. Two worries about this doctrine are examined and allayed. One is that actus reus cannot be distinguished from other elements of liability such as mens rea, causation, or absence of justification or excuse. The other is that there is no reality to the kinds of actions criminal statutes prohibit so that what such statutes prohibit is indeterminate.Less
Whether there is a unitary and coherent doctrine that can be referred to as the ‘actus reus requirement’ is the topic of this chapter. Two worries about this doctrine are examined and allayed. One is that actus reus cannot be distinguished from other elements of liability such as mens rea, causation, or absence of justification or excuse. The other is that there is no reality to the kinds of actions criminal statutes prohibit so that what such statutes prohibit is indeterminate.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0012
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
Excuses are seen as what are needed to move from prima facie culpability, to actual culpability. Excuses give the conditions under which an otherwise culpable choice is not blameworthy (either at ...
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Excuses are seen as what are needed to move from prima facie culpability, to actual culpability. Excuses give the conditions under which an otherwise culpable choice is not blameworthy (either at all, or to a lesser degree). The nature of excuses, the kinds of excuses there are, and the nature of a theory of them, constitute the topics preliminarily explored in this chapter. A causal theory of excuse is elaborated at length, including the facets of such a theory that make it tempting to some. The causal theory is then rejected both on the ground that it does not fit established categories of excuse, and on the ground that it is morally implausible. The combination of such a theory of excuse with determinism is considered at length.Less
Excuses are seen as what are needed to move from prima facie culpability, to actual culpability. Excuses give the conditions under which an otherwise culpable choice is not blameworthy (either at all, or to a lesser degree). The nature of excuses, the kinds of excuses there are, and the nature of a theory of them, constitute the topics preliminarily explored in this chapter. A causal theory of excuse is elaborated at length, including the facets of such a theory that make it tempting to some. The causal theory is then rejected both on the ground that it does not fit established categories of excuse, and on the ground that it is morally implausible. The combination of such a theory of excuse with determinism is considered at length.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0013
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
Having rejected the causal theory of excuse in chapter 12, it remains to ascertain what would be a good theory of the excuses. Two such theories are examined, the choice theory and the character ...
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Having rejected the causal theory of excuse in chapter 12, it remains to ascertain what would be a good theory of the excuses. Two such theories are examined, the choice theory and the character theory. Both theories of excuse depend on deeper theories about the true desert basis for responsibility. The choice theory regards choice as the touchstone of culpability, so that excuses have the function of filtering out when either diminished capacity or limited opportunity render otherwise culpable choices non-blameworthy. The character theory regards character as the touchstone of culpability, so that excuses have the function of filtering out those actions not expressive of bad character and exempting those actors from blame. Reasons are given to prefer the choice theory of excuse.Less
Having rejected the causal theory of excuse in chapter 12, it remains to ascertain what would be a good theory of the excuses. Two such theories are examined, the choice theory and the character theory. Both theories of excuse depend on deeper theories about the true desert basis for responsibility. The choice theory regards choice as the touchstone of culpability, so that excuses have the function of filtering out when either diminished capacity or limited opportunity render otherwise culpable choices non-blameworthy. The character theory regards character as the touchstone of culpability, so that excuses have the function of filtering out those actions not expressive of bad character and exempting those actors from blame. Reasons are given to prefer the choice theory of excuse.
Michael McKenna
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199740031
- eISBN:
- 9780199918706
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199740031.003.0004
- Subject:
- Philosophy, Philosophy of Language, General
This chapter reorients Strawson's theory by emphasizing the role of the agent who is responsible rather than the role of those holding responsible. The three central ingredients in Strawson's ...
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This chapter reorients Strawson's theory by emphasizing the role of the agent who is responsible rather than the role of those holding responsible. The three central ingredients in Strawson's treatment are examined: the quality of will of a responsible agent; the reactive attitudes involved in holding responsible; and the pleas of those held responsible. Quality of will is developed in terms of the regard an agent has for others and for morally salient considerations. reactive attitudes, understood as response to an agent's quality of will, are explained in terms of public manifestations through alterations in otherwise ordinary practices of adult interpersonal life. Public manifestations of these emotions can in turn be normatively assessed. Pleas of excuse or justification are explained in terms of efforts to show that an agent is not blameworthy because she did not act from a morally objectionable quality of will. Exemptions show that an agent is incapacitated for responsible agency. The sense of (in)capacity at issue is accounted for not only in terms of the (in)capacity to understand what those who hold responsible communicate through the manifestation of reactive attitudes, but also in terms of the (in)capacity to hold others responsible.Less
This chapter reorients Strawson's theory by emphasizing the role of the agent who is responsible rather than the role of those holding responsible. The three central ingredients in Strawson's treatment are examined: the quality of will of a responsible agent; the reactive attitudes involved in holding responsible; and the pleas of those held responsible. Quality of will is developed in terms of the regard an agent has for others and for morally salient considerations. reactive attitudes, understood as response to an agent's quality of will, are explained in terms of public manifestations through alterations in otherwise ordinary practices of adult interpersonal life. Public manifestations of these emotions can in turn be normatively assessed. Pleas of excuse or justification are explained in terms of efforts to show that an agent is not blameworthy because she did not act from a morally objectionable quality of will. Exemptions show that an agent is incapacitated for responsible agency. The sense of (in)capacity at issue is accounted for not only in terms of the (in)capacity to understand what those who hold responsible communicate through the manifestation of reactive attitudes, but also in terms of the (in)capacity to hold others responsible.
Thomas E. Hill Jr.
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199692002
- eISBN:
- 9780191741241
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199692002.003.0006
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
This chapter reviews the background in Kant’s moral psychology, suggests how weakness of will might be understood in Kant’s theory, and comments on the implications for moral responsibility. In ...
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This chapter reviews the background in Kant’s moral psychology, suggests how weakness of will might be understood in Kant’s theory, and comments on the implications for moral responsibility. In brief, the proposal is this. For Kant, weakness of will is not a physical incapacity or disability but contrasts with virtue understood as developed strength of will to do our duty despite obstacles. The will is not literally a force, strong or weak, but is conceived as either law-giving practical reason (Wille) or choice to act on a maxim (Willkür). Morally weak persons choose to act on particular maxims in conflict with both practical reason and their general maxim to act as they should. Our general life-governing maxims, like laws of the state, may be weak in content (vague and indeterminate) or willed weakly (with little provision for implementation). Moral weakness mitigates culpability without excusing. Contrary to some interpretations, weak-willed bad acts are, in an important sense, freely chosen and not necessarily failed efforts to act well. How this is possible, in Kant’s view, cannot be explained empirically or metaphysically.Less
This chapter reviews the background in Kant’s moral psychology, suggests how weakness of will might be understood in Kant’s theory, and comments on the implications for moral responsibility. In brief, the proposal is this. For Kant, weakness of will is not a physical incapacity or disability but contrasts with virtue understood as developed strength of will to do our duty despite obstacles. The will is not literally a force, strong or weak, but is conceived as either law-giving practical reason (Wille) or choice to act on a maxim (Willkür). Morally weak persons choose to act on particular maxims in conflict with both practical reason and their general maxim to act as they should. Our general life-governing maxims, like laws of the state, may be weak in content (vague and indeterminate) or willed weakly (with little provision for implementation). Moral weakness mitigates culpability without excusing. Contrary to some interpretations, weak-willed bad acts are, in an important sense, freely chosen and not necessarily failed efforts to act well. How this is possible, in Kant’s view, cannot be explained empirically or metaphysically.
Thomas E. Hill Jr.
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199692002
- eISBN:
- 9780191741241
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199692002.003.0008
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
This chapter reviews, highlights, and raises questions about themes in Kant’s Doctrine of Virtue, Part II of The Metaphysics of Morals. In a wide ranging discussion it comments briefly on the topics ...
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This chapter reviews, highlights, and raises questions about themes in Kant’s Doctrine of Virtue, Part II of The Metaphysics of Morals. In a wide ranging discussion it comments briefly on the topics (1) how Kant’s normative ethics relates to science, metaphysics, metaethics, and philosophy of law, (2) how Kant’s first principles relate to more specific moral principles and judgments, (3) how Kant’s idea of duties to oneself compares to contemporary conceptions, (4) how Kant addresses the problems of moral negligence, self-deception, and weakness, and (5) how to understand the role of the motive of duty in a virtuous life. The chapter emphasizes the constraints of law and justice on virtue, the moral (if not epistemological) priority of the first principles of ethics, and the irrelevance of many contemporary objections to Kant’s conception of duties to oneself. The chapter also highlights Kant’s important second order principles regarding due care in deliberation, self-scrutiny to expose excuses, and developing strength of will to resist temptations. The morally necessary motive of duty is interpreted, not as an extra duty added on each particular duty, but as the basic choice to maintain a pervasive attitude that puts moral responsibility before self-interest.Less
This chapter reviews, highlights, and raises questions about themes in Kant’s Doctrine of Virtue, Part II of The Metaphysics of Morals. In a wide ranging discussion it comments briefly on the topics (1) how Kant’s normative ethics relates to science, metaphysics, metaethics, and philosophy of law, (2) how Kant’s first principles relate to more specific moral principles and judgments, (3) how Kant’s idea of duties to oneself compares to contemporary conceptions, (4) how Kant addresses the problems of moral negligence, self-deception, and weakness, and (5) how to understand the role of the motive of duty in a virtuous life. The chapter emphasizes the constraints of law and justice on virtue, the moral (if not epistemological) priority of the first principles of ethics, and the irrelevance of many contemporary objections to Kant’s conception of duties to oneself. The chapter also highlights Kant’s important second order principles regarding due care in deliberation, self-scrutiny to expose excuses, and developing strength of will to resist temptations. The morally necessary motive of duty is interpreted, not as an extra duty added on each particular duty, but as the basic choice to maintain a pervasive attitude that puts moral responsibility before self-interest.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0008
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor ...
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This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state's general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, the conformity to moral expectation theory, and the suspension of law's threat theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The chapter argues that this theory would excuse the altruistic no less than the self-preferring murderer. It also offers a unifying explanation for the excusing force of entrapment, due diligence, and officially-induced error. Finally, it explains partial excuses as moral analogues of partial exculpations.Less
This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state's general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, the conformity to moral expectation theory, and the suspension of law's threat theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The chapter argues that this theory would excuse the altruistic no less than the self-preferring murderer. It also offers a unifying explanation for the excusing force of entrapment, due diligence, and officially-induced error. Finally, it explains partial excuses as moral analogues of partial exculpations.
Jennifer Radden (ed.)
- Published in print:
- 2004
- Published Online:
- January 2009
- ISBN:
- 9780195149531
- eISBN:
- 9780199870943
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195149531.003.0022
- Subject:
- Philosophy, Philosophy of Mind
This chapter examines the relationship between criminal responsibility and mental disorders. It reviews the legal evolution of the concepts of criminal responsibility and mental excuses. It considers ...
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This chapter examines the relationship between criminal responsibility and mental disorders. It reviews the legal evolution of the concepts of criminal responsibility and mental excuses. It considers the realist, antirealist, and psychiatric/pragmatic approaches to criminal responsibility. It argues that psychiatrists involved in the assessment of responsibility seem to move between physical and intentional explanations for “bad” intentions. The physical fits more easily with the medical role but may not do justice to the claims of social processes. The intentional stance may fit better with a psychological approach to choices but may make it impossible for psychiatrists to avoid making moral judgments in the courtroom.Less
This chapter examines the relationship between criminal responsibility and mental disorders. It reviews the legal evolution of the concepts of criminal responsibility and mental excuses. It considers the realist, antirealist, and psychiatric/pragmatic approaches to criminal responsibility. It argues that psychiatrists involved in the assessment of responsibility seem to move between physical and intentional explanations for “bad” intentions. The physical fits more easily with the medical role but may not do justice to the claims of social processes. The intentional stance may fit better with a psychological approach to choices but may make it impossible for psychiatrists to avoid making moral judgments in the courtroom.
Paul Weirich
- Published in print:
- 2010
- Published Online:
- September 2009
- ISBN:
- 9780195388381
- eISBN:
- 9780199866700
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388381.003.0003
- Subject:
- Philosophy, Logic/Philosophy of Mathematics
Rationality advances standards and goals for acts distinct from those that morality advances. Rationality is attainable, and its demands are sensitive to an agent's circumstances and abilities. ...
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Rationality advances standards and goals for acts distinct from those that morality advances. Rationality is attainable, and its demands are sensitive to an agent's circumstances and abilities. Cognitive limits and nonideal conditions for acting provide excuses for falling short of rationality's goals. Some standards of rationality are comprehensive and nonconditional, but others have restricted scope and depend on conditions such as having reasonable beliefs and desires. Certain solutions to games require that players' strategies be comprehensively and nonconditionally rational and assume that players are ideal agents in ideal circumstances for playing the game. Rationality's evaluations of acts follow a principle of compositionality. The rationality of a composite act's components entails and also explains the composite act's rationality. For example, the rationality of executing a plan depends on the rationality of executing the plan's steps.Less
Rationality advances standards and goals for acts distinct from those that morality advances. Rationality is attainable, and its demands are sensitive to an agent's circumstances and abilities. Cognitive limits and nonideal conditions for acting provide excuses for falling short of rationality's goals. Some standards of rationality are comprehensive and nonconditional, but others have restricted scope and depend on conditions such as having reasonable beliefs and desires. Certain solutions to games require that players' strategies be comprehensively and nonconditionally rational and assume that players are ideal agents in ideal circumstances for playing the game. Rationality's evaluations of acts follow a principle of compositionality. The rationality of a composite act's components entails and also explains the composite act's rationality. For example, the rationality of executing a plan depends on the rationality of executing the plan's steps.
