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Scholars have argued that it is impermissible to prevent deontological and optimific wrongs. That is, it is wrong to stop someone from pushing the massive man in front of a trolley that will otherwise kill five people and it is wrong to wake or move the massive man on the trolley tracks if his body will otherwise stop the trolley from killing five people. This chapter maintains this approach is misguided. A more nuanced understanding of the means principle yields that because the five people are not entitled to the sleeping man’s serving as a shield for them, not only is he allowed to get up but also third parties are entitled to wake or move him. Agents must recognize the normative relationships between patients and how these relationships bear on what agents may do.
This chapter considers the psychological connection between the person who commits the offense and the person who is being punished. Although a defense of any theory of personal identity would require its own monograph, we suggest that there is particular promise in those views that disambiguate questions of metaphysical identity from the kind of personal identification with the commission of the offense that matters normatively. We then try to taxonomize the different sorts of identity defenses as they fit within the extant criminal law’s structure. From there, we consider dissociative identity disorder and discuss different approaches to determining how many persons inhabit a single body, ultimately siding with the view that there may be no moral agent inhabiting that body. We also consider how different approaches should view “integration,” the form of therapy where the host and alter-egos (“alters”) are merged.
Our theory of criminal law rests upon one bedrock claim: When an actor knowingly imposes risks on the morally and legally protected interests of others in circumstances that evince his insufficient concern for those interests, he is culpable and deserving of punishment. That claim presupposes that the actor in question is capable of seeing that others’ interests give him a reason to refrain from endangering them. In this chapter we take up considerations that may cast doubt on such a capability, considerations that are independent of the free will/determinism debate and its bearing on moral responsibility. Those considerations are total blindness to moral reasons (psychopathy), blindness to the strength of moral reasons, and misidentification of moral reasons. In the next chapter, we consider blindness to, or to the strength of, one particular kind of moral reason, namely, deontological constraints.
In this chapter we look at the arguments for having crimes that are proxies for culpable acts. We find those arguments – arguments based on the vagueness of our single crime – to be unpersuasive. There are remedies for vagueness that do not require the creation of proxy crimes. And proxy crimes have a mistake of law problem that our single crime avoids. Moreover, proxy crimes not only produce a mismatch between culpability and punishment. In some instances, proxy crimes can be dangerous. And proxy crimes create the possibility of multiple punishments for a single act. Finally, proxy crimes cannot be justified as preventive measures, like walls and speed bumps.
In this chapter we examine the ingredients of culpable omissions. We first look at the various triggers of duties to act. Some of those duties are triggered voluntarily, as when one marries or contracts. But others are created by acts that place others in peril, a potentially quite capacious category of acts, as we illustrate. We then assume a duty to act and ask what has to be the case for the failure to act to be culpable. We conclude that the actor must be aware of the facts that trigger the duty, aware that the victim is at risk of harm, aware of the actor’s ability to avert that harm, aware of the level of risk occasioned by acting to avert the harm, and unaware of facts that would justify omitting to act. Finally, we consider how to calculate the overall culpability of one whose failure to act is culpable at different levels over its duration.
In this chapter, we begin with a question about permissibility, not culpability. We introduce a puzzle that has received scant attention in the literature: whether it is permissible to prevent “optimific wrongs.” We offer our solution to it and then use its complexity to revisit a question to which we gave a brief answer in Crime and Culpability and continued to examine in Chapter 6 – namely, if one gets questions of morality wrong, is one’s moral mistake culpable? Here we pay particular attention to the interaction between deontological constraints, consequentialist balancing, and culpability.
In our previous book, we claimed that our single crime approach avoided mistake of law problems. In this chapter we ask how our approach handles “other law” mistakes, mistakes about whether another’s interest that is put at risk by one’s act is really an interest that legally and morally warrants the actor’s concern. Mistakes about whether property really belongs to another is a classic example. We distinguish such mistakes from, for example, mistakes about what counts as morally effective consent.
This chapter has two parts. In the first part, we convey to the reader the basic points we advocated in our previous book, Crime and Culpability: A Theory of Criminal Law. Those were: a focus on the actor’s assessment of the risks of various harms from the contemplated act and the reasons that exist that might justify or militate against the act; a single crime and a single form of culpability as opposed to multiple crimes and forms of culpability; the irrelevance of the act’s results; the nonculpability of negligence; the abolishment of incomplete attempts and other preparatory acts; and that the duration of acts affects their culpability. The second part of the chapter is a roadmap of the remaining chapters.
To be reckless, one must take an unjustifiable risk. In determining justifiability, must one take into account the downstream wrongdoing of others? This chapter argues that, with a few exceptions, one must take into account the potential downstream culpable and nonculpable wrongdoing of others, but reaffirms our view that one need not take into account one’s own future wrongdoing. We elucidate that the exceptions to this rule derive from our autonomy interests and our rights not to be required to self-sacrifice, and we address how these questions apply to both moral blackmail and merchants selling lawful goods. We then turn to the intersection between the actor’s breaking of a justified rule and the potential misinterpretation or camouflaging of wrongdoing that may take place by causally downstream actors. Finally, we address cases in which the risk of harm of the primary actor’s act is, in his estimation, either nonexistent because overdetermined by others’ anticipated acts, or too small by itself to be culpable though when joined with others’ acts is capable of producing a formidable risk of harm.
This chapter deals with the problem of distributing retributive desert. We begin with preliminary presuppositions about retributive desert. We then turn to distributive puzzles. First, we address the intersection of the means principle and retributive desert, arguing that the means principle bars not only the creation of crime to create the intrinsic goodness of giving people what they deserve but also that the means principle prevents taxing citizens to pay for retributive desert if they do not believe that it is intrinsically good. Second, we ask whether retributive desert determines what the form of suffering must be, what the timing of punishment should be, and how to select among the deserving in a world of scarce resources. We next turn to puzzles in which prior distributions might affect the distribution of desert. There is the familiar problem of different susceptibility to punishment. We also ask what would make a harm ineligible for counting as retributive desert. Finally, we discuss the relationship between negative and positive desert.