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Responsibility, Retribution and the “Voluntary”: a Response to Williams*

Published online by Cambridge University Press:  16 January 2009

Antony Duff  and
Andrew Von Hirsch
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Extract

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g., deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the state's power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.

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Articles
Information
The Cambridge Law Journal , Volume 56 , Issue 1 , March 1997 , pp. 103 - 113
Copyright
Copyright © Cambridge Law Journal and Contributors 1997

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References

1 Hart, H.L.A., Punishment and Responsibility (Oxford 1968), ch. 1.Google Scholar

2 For such a penal theory based on “maximising” freedom of choice, see John Braithwaite and Phillip Pettit, Not Just Deserts (Oxford 1990).Google Scholar For a critique, see Andrew von Hirsch and Andrew Ashworth, “Not Not Just Deserts: A Response to Braithwaite and Pettit” (1992) 12 Oxford Journal of Legal Studies 83–98;CrossRefGoogle Scholar Andrew von Hirsch, Censure and Sanctions (Oxford 1993), ch.

3 See particularly, Bernard Williams, Ethics and the Limits of Philosophy (London 1985).Google Scholar

4 On the principle of proportionality and its rationale, see Andrew von Hirsch, Censure and Sanctions, above, chs. 2 and 5.

5 H.L.A. Hart, Punishment and Responsiblity, above, ch. 1.

6 Ibid., ch. 6. We will discuss Williams' apparent belief that criminal liability is (or should be) imposed only for intentional action in section C below.

7 For a statement of the theory, see e.g., Alan Gewirth, Reason and Morality (Chicago 1978), pp. 294–298.Google Scholar

8 See, e.g., Duff, R.A., Trials and Punishments (Cambridge 1986), ch. 8;Google ScholarHirsch, Andrew von, Past or Future Crimes (Manchester 1986), ch. 5.Google ScholarPubMed

9 Hirsch, Andrew von, Censure and Sanctions, above, ch. 2; Uma Narayan, “Appropriate Responses and Preventive Benefits: Justifying Censure and Hard Treatment in Punishment” (1993) 13 Oxford Journal of Legal Studies, 166–182.Google Scholar

10 R.A. Duff, Trials and Punishments, above, ch. 9. For a comparison of these two accounts of hard treatment, see Duff, R.A., “Penal Communications: Recent Work in the Philosophy of Punishment”, (1996) 20 Crime and Justice 1–97CrossRefGoogle Scholar, especially 41–45.

11 “ Bernard, Williams, Shame and Necessity (Berkeley, Cal. 1993), chs. 3–4.Google Scholar

12 See R.A. Duff, Trials and Punishments, above, ch. 10.

13 See text accompanying n. 6, above; and, more fully, Andrew Ashworth, Principles of Criminal Law, 2d ed. (Oxford 1995), pp. 189–193.Google Scholar

14 Bernard Williams, Ethics and the Limits of Philosophy, above.

15 See Joseph, Raz, The Morality of Freedom (Oxford 1986), eh. 15.Google Scholar

16 SeeAndrew von Hirsch, Censure and Sanctions, above, pp. 9–12; R.A. Duff, “Penal Communications”, above, p. 33.

17 For references to the German literature, see Tatjana, Hörnle and Hirsch, Andrew von, “Positive Generapravention und Tadel”, (1995) 142 Goldtdammer's Archiv für Strafrecht 249–298,Google Scholar s. 1; for a Scandinavian version, see Johannes Andenaes, Punishment and Deterrence (Ann Arbor Mich. 1974), pp. 110–128.

18 For fuller explication of this criticism, see Tajana Hornle and Andrew von Hirsch, above, ss. III and IV; see also, R.A. Duff, “Penal Communications”, above, pp. 34–35.

19 Compare Andrew von Hirsch, Censure and Sanctions, above, ch. 8 with R.A. Duff, “Penal Communications”, s. IV.

20 See also, Neil MacCormick's useful discussion of moral disestablishment in his Legal Right and Social Democracy (Oxford 1982),Google Scholar ch. 2.