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Choice, Character, and Excuse*

  • Michael S. Moore (a1)

Extract

Freud justified his extensive theorizing about dreams by the observation that they were “the royal road” to something much more general: namely, our unconscious mental life. The current preoccupation with the theory of excuse in criminal law scholarship (including my own) can be given a similar justification, for the excuses are the royal road to theories of responsibility generally. The thought is that if we understand why we excuse in certain situations but not others, we will have also gained a much more general insight into the nature of responsibility itself. Nowhere has this thought been more evident than in the century-old focus of criminal law theoreticians on the excuse of insanity, a focus that could not be justified by the importance of the excuse itself.

In this paper I wish to isolate two theories of excuse, each of which instantiates its own distinctive theory of responsibility. One is what I shall call the choice theory of excuse, according to which one is excused for the doing of a wrongful action because and only because at the moment of such action's performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise. Such a choice theory of excuse instantiates a more general theory of responsibility, according to which we are responsible for wrongs we freely choose to do, and not responsible for wrongs we lacked the freedom (capacity and opportunity) to avoid doing. The second I shall call the character theory of excuse, according to which one is excused for the doing of a wrongful action because and only because such action is not determined by (or in some other way expressive of) those enduring attributes of ourselves we call our characters.

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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. 233–43, and in Moore, Michael S., “The Moral Worth of Retribution,” ed. Schoeman, F., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 179219. 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. 10911149.

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.

4 Argued for in Moore, , “Causation and the Excuses,” p. 1097, 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.

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.62; Gross, Hyman, A Theory of Criminal Justice (New York: Oxford University Press, 1979), p. 137; Kadish, Sandord H., “Excusing Crime,” in his Blame and Punishment (New York: MacMillan, 1987), pp. 81106, at p. 88; Bayles, Michael D., “Character, Purpose, and Criminal Responsibility,” Law and Philosophy, vol. 1, no. 1 (April 1982), pp. 520, at p. 6; Scanlon, T.M., Jr., “Quality of Will and the Value of Choice” (unpublished manuscript, 1988), p. 42; Fletcher, George, Rethinking Criminal Law (Boston: Little, Brown, 1978), p. 804; Dressier, Joshua, Understanding Criminal Law (New York: Mathew Bender, 1987), at p. 185; 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. 671716, at p. 701; Moore, , “Causation and Excuse,” pp. 1148–49; Moore, , Law and Psychiatry, pp. 8590.

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).

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), 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.

16 ibid.

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

18 ibid., p. 201.

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

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

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). 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. See also Brand, Myles, Intending and Acting (Cambridge: MIT Press, 1984).

25 See, e.g., Fingarette, Herbert, Heavy Drinking: The Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988), 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.

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

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. 3585.

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

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. I discuss this passage from Freud and others on responsibility in Moore, , Late and Psychiatry, pp. 343–48.

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. 141166.

33 On the distinction between basic and complex actions, see Moore, , Law and Psychiatry, pp. 6777.

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.

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. 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. 465–74; Brandt, , “Blameworthiness and Obligation,” ed. Melden, A., Essays in Moral Philosophy (Seattle: University of Washington, 1958), pp. 1ff; Brandt, , “The Utilitarian Theory of Excuse,” Philosophical Review, vol. 78, no. 3 (July 1969), pp. 337–61; and Brandt, A Motivational Theory of Excuse. For other defenses of the theory, see also Fletcher, , Rethinking Criminal Law, pp. 799802; Nozick, Robert, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 387–84, 394–96; Bayles, “Character, Purpose, and Criminal Responsibility”; Vuoso, George, “Background, Responsibility, and Excuse,” Yale Law Journal, vol. 96, no. 7 (June 1987), pp. 1661–86; Lacey, , State Punishment, pp. 6778; and the as yet unpublished work of Tim Scanlon (“Quality of Will”) and Arenella, Peter (“In Praise of Blaming: The Centrality of Character,” 1989). 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. 5980. 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.

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. 2337.

40 Dummett, Michael, Truth and Other Enigmas (Cambridge: Harvard University Press, 1978), pp. 1416.

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

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

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

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. For a commentary on Eagle, see Moore, Michael S., “The Unity of Self,” pp. 163202 of the same volume.

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

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

48 Williams, Bernard, Problems of the Self (Cambridge: Cambridge University Press, 1973), pp. 1518.

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

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. 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.

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. 520; Frankfurt, , “Identification and Wholeheartedness,” ed. Schoeman, F., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 2745.

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

54 Seen clearly by Vuoso, , “Background, Responsibility, and Excuse,” p. 1676; Wolf, Susan, “Sanity and the Metaphysics of Responsibility,” ed. Schoeman, F., Responsibility, Character, and the Emotions, pp. 4662; and Watson, Gary, “Responsibility and the Limits of Evil,” p. 281.

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

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.

58 See the discussions of this in Moore, , Law and Psychiatry, pp. 343–47, in Williams, Bernard, “Morality and the Emotions,” in his Problems of the Self pp. 207229, and in Sabini and Silver.

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

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

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. 81100, at 103–5. 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.

63 Lacey, , State Punishment, pp. 6572.

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

65 See Lacey, , State Punishment, pp. 65, 73; 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. 801–2; Nozick, , Philosophical Explanations, pp. 393–96. 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. 172; Arenella, , “Character, Choice, and Moral Agency,” Social Philosophy & Policy, vol. 7, no. 2 (Spring 1990).

66 For a contemporary use of the character-stop argument, see Nozick, , Philosophical Explanations, pp. 395. 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.

67 Schoeman, Ferdinand, “Introduction,” Responsibility, Character, and the Emotions, p. 5. 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. 871957.

69 See the discussion in Moore, , Law and Psychiatry, p. 228. 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.

71 Lacey, , State Punishment, p. 68.

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

73 ibid., p. 325.

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

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), 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.

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

83 Fletcher, , Rethinking, pp. 800801.

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) 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. 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.

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. 1011, 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.”

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

* This essay has benefited greatly from the comments and suggestions made by the contributors to this volume. My attention was drawn to the character theory by Peter Arenella's work, and my reasons for rejecting that theory were sharpened by my long-term discussions with Larry Alexander, Heidi Hurd, Sandy Radish, Herbert Morris, Stephen Morse, and Jeremy Waldron.

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