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Mensrea

Published online by Cambridge University Press:  13 January 2009

Jean Hampton
Jean Hampton
Affiliation:
Philosophy, University of California, Davis
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Extract

Accusing, condemning, and avenging are part of our daily life. However, a review of many years of literature attempting to analyze our blaming practices suggests that we do not understand very well what we are doing when we judge people culpable for a wrong they have committed. Of course, everyone agrees that, for example, someone deserves censure and punishment when she is guilty of a wrong, and the law has traditionally looked for a mens rea, or “guilty mind,” in order to convict someone of a criminal wrongdoing. But philosophers and legal theorists have found it interestingly difficult to say what mens rea is. For example, noting the way in which we intuitively think people aren't culpable for a crime if they disobey the law by mistake, or under duress, or while insane, theorists such as H.L.A. Hart have tried to define mens rea negatively, as that which an agent has if he is not in what we consider to be an excusing state. But such an approach only circumscribes and does not unravel the central mystery; it also fails to explain why the law recognizes any excusing states as mitigating or absolving one of guilt, much less why all and only the excusing states that are recognized by the law are the right ones. Moreover, the Model Penal Code, which gives a very detailed account of the kinds of mental states which justify criminal conviction, does not tell us (nor was it designed to tell us) why these states of mind (e.g., knowledge, purposiveness, intention, assumption of risk of harm, negligence) are relevant to an assessment of legal guilt.

Type
Research Article
Information
Social Philosophy and Policy , Volume 7 , Issue 2 , Spring 1990 , pp. 1 - 28
Copyright
Copyright © Social Philosophy and Policy Foundation 1990

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References

1 See Hart, Punishment and Responsibility, ch. 2, “Legal Responsibility and Excuses,” pp. 28–53 (Oxford: Clarenden Press, 1968).Google Scholar

2 The Model Penal Code has been drafted, with commentary, by the American Law Institute and has had considerable influence upon legal reform in the United States during the past 30 years. For a presentation and discussion of the Code's minimum requirements for culpability, see Criminal Law and its Processes, ed. Sanford, Kadish and Monrad, Paulsen (Boston: Little, Brown and Co., 1975; 3rd edition), p. 95.Google Scholar

3 This article builds on my initial attempts to understand moral culpability in “The Nature of Immorality,” The Foundations of Moral and Political Philosophy, ed. Ellen, Frankel Paul, et al. (Oxford: Basil Blackwell, 1990)Google Scholar; also published in Social Philosophy and Policy, volume 7, issue 1 (Autumn 1989).

4 For examples of discussions of such failures of reasoning, see Tversky, A. and Kanneman, D., “The Framing of Decisions and the Rationality of Choice,” Science (1981), pp. 543–58Google Scholar; and Pears, David, Motivated Irrationality (Oxford: Clarendon Press, 1984), esp.pp. 45ff.Google Scholar

5 CBS News, March 1983.

6 The distinction is from Williams, Glanville, Criminal Law: The General Part (London: Stevens and Sons Ltd., 1953), pp. 49–59.Google Scholar For a nice overview of the controversies surrounding the topic of negligence, see the readings on negligence, recklessness, and strict liability in Freedom and Responsibility, ed. Morris, H. (Stanford: Stanford University Press, 1961).Google Scholar

7 See Gauthier, DavidMorals by Agreement (Oxford: Oxford University Press, 1986)Google Scholar, and Foot, Philippa “Morality as a System of Hypothetical Imperatives,” in Virtues and Vices (Berkeley: University of California Press, 1988).Google Scholar

8 Kant appears to insist on the total supremacy of morality in his writings, but this idea has been challenged recently. For example, see Wolf, Susan, “Moral Saints,” Journal of Philosophy, vol. 79, no. 8 (August 1982), pp. 419–39.CrossRefGoogle Scholar

9 Note here that the word ‘reason’ is used in a very narrow sense to refer to a norm of action directed at the individual intent on satisfying his desires. This is the economist's notion of reason, roughly equivalent to prudential calculation. Philosophers such as Kant use the word ‘reason’ more broadly to cover both prudential and moral calculation. Despite my sympathies with Kant's use of the word, I will retain the narrow use of ‘reason’ in this paper to mark the distinction between two quite different forms of normative reasoning.

10 The following historical remarks are taken from a much longer and more detailed account of various theories of culpability in my “The Nature of Immorality.” See note 3.

11 See Meno, 77b-78b (in the translation of Lamb, W. R. M., Harvard University Press, 1924, p. 289)Google Scholar, and Protagoras, 357d-e (in the translation by Lamb, W. R. M., Harvard University Press, 1924, p. 243).Google Scholar

12 As the saying goes, “Ignoratia legis non excusat.” We will be discussing later why ignorance is not a good excuse in legal contexts.

13 Romans 7:14–20.

14 This style of explanation is also popular with those who want to understand akratic behavior. See the articles discussing this style of approach in The Multiple Self, ed. Jon, Elster (Cambridge: Cambridge University Press, 1986).Google Scholar

15 Genesis 3:1–7.

16 Inferno, Canto V, quoted by Davidson, Donald in “How is Weakness of the Will Possible?”, in Essays in Actions and Events (Oxford: Clarendon Press, 1980), p. 35.Google Scholar

17 I am indebted to Peter Arenella for pressing me to make this idea explicit in my analysis.

18 In “The Legal and Moral Responsibility of Organizations” (in Criminal Justice: Nomos XXVII, eds. Pennock, J. Roland and Chapman, John W., [New York: New York University Press, 1985] pp. 267–86Google Scholar), Susan Wolf suggests that sociopaths, although incapable of understanding or being responsive to moral authority, are capable of the kind of responsibility (call it ‘practical’) which is the foundation of tort law. “We use,” she says, “the practical sense when our claim that an agent is responsible for an action is intended to announce that the agent assumes the risks associated with the action. In other words, the agent is considered the appropriate bearer of damages, should they result from the action, as well as the appropriate reaper of the action's possible benefits” (p. 276). One can, according to Wolf, be capable of being practically responsible but not morally responsible; sociopaths may be one example of such an agent, organizations may be another. If she is right, there is a difference between being a moral agent and being (to coin a name) a “practical agent” One might also say, as we shall discuss in the next section, that the criminal law takes seriously the question whether or not the lawbreaker is a moral agent, whereas the tort law requires practical agency.

19 Wolf, “The Moral and Legal Responsibility of Organizations,” p. 278.

20 Wolf says the same, ibid.

21 Paradise Lost, Book IX (New York: Doubleday, 1969), p. 212.

22 See Kant, Religion Within The Limits of Reason Alone, trans. Greene, Theodore M. and Hudson, Hoyt H., ed. John, Silber (New York: Harper and Brothers, 1960), pp. 52–53.Google Scholar

23 Because Kant wished to avoid characterizing people as devilish in this sense, he shied away from using the word ‘rebel’ to describe evil people. For example, he says in the Religion Within The Limits of Reason Alone that “Man (even the most wicked) does not, under any maxim whatsoever, repudiate the Moral Law in the manner of a rebel (renouncing obedience to it)” (p. 31). Instead, he maintains that “Man (even the best) is evil only in that he reverses the moral order of the incentives when he adopts them into his maxims,” (p. 31) but this kind of “insubordination” (which is different from flat-out renunciation) is characterized as rebellion later on in the Religion, when Kant notes that were we to remove the incentive of inclination from human nature, then “though it is true that this rebellion is often stilled, the rebel himself is still not conquered, and exterminated” (p. 51n). The critical debate about whether or not Kant is right to reject the idea that we are devilish in his sense fails to take account of the way in which he does acknowledge a genuinely devilish rebellion in the hearts of all (sinful) human beings. See Silber, pp. cxxivff and cxxixff; Wood, Allen, Kant's Moral Religion (Ithaca: Cornell University Press, 1970), p. 212nGoogle Scholar; and Philip Quinn, p. 9 and n. 3.

Those who are familiar with Kant's analysis of immoral behavior in the Religion will see strong similarities between his treatment of it as an act of insubordination in one's ranking of motives for action and my account of it as the defiant choice of something other than morality as the authority governing one's choice of action in the situation.

24 2BGH 194 (March 18, 1952). Translation by Fletcher, George, Comparative Criminal Theory 72 (2nd ed. 1971, mimeo, UCLAGoogle Scholar); in Kadish and Paulsen, p. 124–5.

25 See Smith, Holly, “Culpable Ignorance,” Philosophical Review, vol. 92, no. 4 (October, 1983), pp. 543–571.CrossRefGoogle Scholar Aquinas considers the culpably ignorant to include every non-negligent performer of immoral actions. See Summa Theologica, First Part of the Second Part, Question 6, Article 8, “Does Ignorance Render an Act Involuntary?”

26 Nicomachean Ethics, 1114a 3–11; my emphasis; translation is that of Ross, W. D. in The Basic Works of Aristotle ed. Richard, McKeon (Chicago: Random House, 1941).Google Scholar

27 For an argument to this effect, see Susan Wolf, “Moral Saints.”

28 Judge Buttles, Stale v. Woods, Supreme Court of Vermont, 1935, 107 Vt. 354, 179 A 1, in Kadish and Paulsen, p. 110.

29 See Anscombe, Elizabeth, On the Source of the Authority of the State in her Collected Works, Volume III: Ethics, Religion and Politics (Minneapolis: University of Minnesota Press, 1981), pp. 130–55Google ScholarRaz, Joseph, The Authority of Law: Essays in Law and Morality (Oxford: Clarendon Press, 1979)CrossRefGoogle Scholar; and Green, Leslie, The Authority of the State (Oxford: Clarendon Press, 1988).Google Scholar

30 Hobbes, , De Cive, The English Works of Thomas Hobbes, vol. ii, ed. Molesworth, W., preface, pp. xi–xii.Google Scholar

31 It may also be that the stringent conditions needed to convict people of certain crimes (e.g., treason) in some legal systems – conditions that require finding not only the defiance which I call mens rea but also a certain kind of reason for that defiance – reflect the society's concern to control the power of the state in situations where it might be inclined to overreact and use its power excessively or arbitrarily. I am indebted to discussions with David Dolinko on this point.

32 Regina v. Prince, L. R. 2 Crim. Cas. REs. 54 (1876). The defendant was convicted of marrying a girl under the age of sixteen, in violation of Victorian English Law, despite the fact that he was judged to have the “reasonable belief” that she was 18.

33 See Forgiveness and Mercy (written with Murphy, Jeffrie), ch. 2 (Cambridge: Cambridge University Press, 1986).Google Scholar