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This chapter criticizes the character and choice theories of the culpable mind as incapable of justifying judicial punishment specifically as opposed to moral censure generally. It develops from legal retributivism an account of the culpable mind requirement that reconciles judicial punishment with the inviolability of the person. The chapter argues that the wrongdoer's choice to interfere or to risk interfering with another agent's capacity to act on ends it chooses is the level of fault required to make punishment implicitly self-imposed by the recipient and thus distinguishable from the wrongdoer's violence. Such a choice is one to which a denial of rights of agency may be logically imputed, a denial by which the wrongdoer implicitly authorizes his own coercibility. Exculpatory conditions are those which block an inference from the agent's choice to a denial of rights. The chapter argues that this version of subjectivism is invulnerable against the criticisms levelled against other versions.

This introductory chapter begins by outlining the reasons why one might doubt that Aristotle's concern with voluntariness is a concern with moral responsibility. These various motives for scepticism amount to the suspicion that Aristotle's goals and concerns in discussing voluntariness, as well as the notions he invokes and the methods he uses, are not those of someone concerned with developing a theoretical account of moral responsibility. This book argues, on the contrary, that Aristotle's concerns and aims in his various discussions of voluntariness are precisely those of a theorist of moral responsibility. Aristotle has an account of moral responsibility that is far from being an uncritical recapitulation of commonsense notions. It is a sophisticated philosophical account capable of solving most of the problems that a theory of moral responsibility must address. The chapter sketches the view attributed to Aristotle and the argument of the following chapters. It then discusses the textual evidence for Aristotle's views, and sketches the ordinary notions of voluntariness (to hekousion) and involuntariness (to akousion) in the light of which Aristotle develops his account.

Voluntariness is fundamental to responsibility. Where it is lacking, a person is not treated as the agent of his own bodily movements. There are several problems with looking back to a prior voluntary act to establish an agent's blameworthiness for his later involuntary conduct. The most significant is the fact that the earlier act and the later act are different acts. The strictness of the act requirement in the criminal law helps to underscore the difficulty with trying to base responsibility on an earlier voluntary act. This chapter explores the typical form in which the voluntary act problem arises in the law: cases in which the defendant anticipated, rather than contrived, his involuntary condition. It considers how what is sometimes called the ‘orthodox approach’ to the criminal law's act requirement handles such cases. A preliminary difficulty that poses special problems for the orthodox approach concerns the role of proximate cause. It proposes the ‘redescriptive test’ as a solution to the causation problem.

This chapter explores some of the ways in which moral responsibility for events can be negated through a lack of voluntariness. It looks at how such negations are best accommodated within the criminal law. The chapter begins by identifying two ways of thinking about voluntariness. Some writers see voluntariness as a counterpart to involuntariness, envisaging behaviour ‘done in the presence of open alternatives’. Others explain voluntary behaviour in terms of ‘volitional’ behaviour that is intentional under some description; behaviour, one might say, done willingly. The chapter goes on to consider the relationship between voluntariness and the varieties of actus reus elements, including omissions, situational liability, and possession.

This chapter considers the action-event distinction. In particular, it pursues another way of thinking about the relationship between volitional action and non-volitional ‘action’. Rather than analysing what divides them, it looks at what they have in common: what separates the both of them from mere events. Doing so has the virtue of focusing attention more directly on what—besides non-involuntariness—underpins moral responsibility for a piece of behaviour and its consequences. Plausibly, one shared feature is that the agent’s behaviour involves the exercise of certain capacities that sub-serve intentional action: capacities that are normally exercised when one acts intentionally. It is the exercise of those capacities that changes behaviour from event to action, even when the behaviour is not volitional. The chapter also discusses causal accounts of agency.