Responsibility, Moral and Legal
RESPONSIBILITY, MORAL AND LEGAL
The term responsibility or one of its variants figures in moral discussion in many different ways. Philosophers have traditionally been especially interested in the concept of moral or personal responsibility. It is with the problems connected with this notion that the following discussion is primarily concerned.
Judgments of Personal Responsibility
F. H. Bradley once claimed that "for practical purposes we need make no distinction between responsibility and liability to punishment." Although it is true that discussions of responsibility have often turned quickly to discussions of blameworthiness and liability to punishment, there is little justification for Bradley's claim. For responsibility is equally relevant to many other forms of social treatment—among others, praise, reward (including special honors such as honorary degrees or titles), legal punishment, legal liability. And, of course, the topic is intimately related to the theological issue of salvation, the allocation of divine rewards and punishments.
Judgments of personal responsibility pertain to this range of practices in a very special way. Unless a person is judged personally responsible for some act or outcome, he would not normally be thought to deserve blame, praise, reward, punishment, and so on. Personal responsibility is generally regarded as a necessary condition of the justice of a person's receiving what he deserves. Yet Bradley's error is repeated in many contemporary discussions of "freedom and responsibility" that start with some unilluminating remarks about "responsibility," then move swiftly to examination of blame or punishment. Discussion of responsibility is theoretically fundamental, not ancillary, to accounts of such practices.
Meaning of "Moral Responsibility"
Persons are normally judged morally responsible for their actions. But they may be judged responsible for almost anything—events, processes, their own psychological characteristics. Thus, a person may be judged morally responsible for his firm's loss of a contract, the Napoleonic wars, his bad temper, a technique for maintaining the fertility of land, or his friend's divorce. Under what conditions is a person responsible for one of his acts or for some other occurrence? If we can state the necessary and sufficient conditions for judgments of moral responsibility, we shall, in the process, be assigning a sense to the expression. "Moral responsibility," like so many other terms of moral discourse, is inevitably defined persuasively, for one is bound to be influenced in defining it by convictions about the requirements for deserved blame, praise, and so on. That is, one is bound to be influenced by convictions, explicit or implicit, about the requirements of justice in such matters.
Most persons, however, would accept the following form of definition, although those with different moral outlooks would complete it differently: A person is regarded as morally responsible for some act or occurrence x if and only if he is believed (1) to have done x, or to have brought x about; and (2) to have done it or brought it about freely. The completion of this formulation depends on what is meant by a human action; what would count as bringing some outcome about; and, above all, in what sense the terms free, freely, or freedom are employed. All these conceptions are problematic in ways that lead to very different theories of responsibility. Philosophers have too often supposed that the concept of "freedom" essential to moral responsibility can be fixed independently of what it is to be responsible, and that only after the meaning of freedom is specified can we determine whether, and under what conditions, a person is responsible. But in fact what a person means by free, freely, or freedom will reflect his moral convictions, and especially his views about justice, in the same way and for the same reasons that his conception of "moral responsibility" will reflect these views. As Harald Ofstad put it, "Ethical systems may determine the sense of 'freedom' we select as relevant" (Freedom of Decision, p. 279). One need add only that they not only may, they do.
Freedom and Moral Responsibility
In his Nicomachean Ethics, Aristotle tried to analyze the concept of "voluntary action." Nowhere in his discussion did he clearly take account of the problems that arise if all our decisions and actions are determined by circumstances beyond our control. But he did claim that actions are compulsory "when the cause is in the external circumstances and the agent contributes nothing." It is difficult to say whether, in this and other passages, Aristotle intended to claim that the fact that the cause of action is external implies that the agent contributes nothing and is therefore not free in the sense relevant to responsibility. But from the beginning of the Christian era, the view that if decisions and actions are so determined, then persons are not free in the relevant sense, has been forcefully advanced and denied by countless numbers of theologians and philosophers.
The earliest form of the controversy arose in the context of Christian doctrine. In particular the fourth-century Christian theologian Pelagius argued that the doctrines of original sin and grace, and of divine omnipotence and foreknowledge, led to morally repugnant conclusions, primarily the conclusion that although a person's tendencies, decisions, and actions are in no way the fault of the agent, he is nevertheless morally culpable for his actions and, in consequence, justly suffers the torments of hell. If these doctrines are true, Pelagius argued, God is not just. But as God is certainly just, these doctrines must be false. Pelagius insisted that man is possessed of free will in that he has the power of "contrary choice." This power makes it possible for men to sin. In the fifth century St. Augustine countered Pelagius's attack on orthodox doctrine with the claim that though God knows and wills all, he grants to each person who has faith freedom of choice. Though God knows what a man will do, he wills only hypothetical claims, of the form "If this man sins, then he shall be punished." Divine decrees of this kind are consistent with freedom of the will. But what about the possession of faith—is this in a man's power? St. Augustine insisted that it was; for to have faith is to believe, and "belief is simply consenting to the truth of what is said, and consent is necessarily an act of will. It follows that faith must be in our power."
Although the terms are often different, the issues generated by this exchange persist. The doctrine of scientific determinism, and not the doctrine of divine omnipotence, is today more commonly thought to pose the chief difficulties. Scientific determinists maintain that external conditions specified in scientific laws are sufficient to produce each human choice and action. But the nature of free choice, the nature of human power and ability, the relevance of necessity to freedom, the role of choice and deliberation, the very possibility of human choice, and many other issues suggested by or actually crystallized in the debate between Pelagius and Augustine are still vigorously debated.
Dilemma of Moral Responsibility
Efforts to solve the problem of freedom of the will are conveniently considered against the background of the following dilemma.
If determinism is true, then all events, including any person's decisions and actions, are fully determined by circumstances that are ultimately beyond that person's control. If this is so, then that person could not have decided or acted differently. Hence the person was not free.
If determinism is false, then there are at least some events that are not fully determined by antecedent circumstances. To the extent that human decisions and actions are among those events which are not fully determined, those decisions and actions occur by pure chance. But what occurs by pure chance is not within a person's control. Therefore, to the extent that decision and action are not determined, the person is unfree.
But determinism is either true or false. Hence a person is never free with respect to decisions, actions, or the results of actions.
But, it is claimed, a person is morally responsible for an action or occurrence only if he is free in that respect.
Therefore, no one is ever morally responsible for any decision, action, or outcome.
freedom as the lack of constraint
Some philosophers have argued that determinism does not imply that a person's actions are beyond the person's control. They argue that there is a perfectly clear, ordinary sense to "being able" or "being free" to do something that is compatible with determinism. As Jonathan Edwards, the great American theologian, put it in Freedom of the Will, the most sustained, penetrating defense of this position: "Let the person come by his volition or choice how he will, yet, if he is able, and there is nothing in the way to hinder his pursuing and executing his will, the man is fully and perfectly free, according to the primary and common notion of freedom" (Paul Ramsey, ed., 1957, p. 164). The central assumption of Edwards's argument is that the ordinary sense of statements like "Eisenhower could have ordered his troops to take Berlin before the Russians arrived" and "Kennedy was able to call off the invasion of Cuba, but he decided not to do so" is such that these statements are perfectly consistent with determinism. In David Hume's terms, there is an important distinction between an action being caused or determined by antecedent circumstances, and its being constrained or compelled or coerced by antecedent circumstances. Only when an action that is determined is also in some way constrained or compelled is the actor not morally responsible for that act.
Other philosophers have found this position unacceptable for a variety of reasons. Some have argued that the ordinary use of such expressions as "was free to," "could have," and "was able to" involves more than lack of constraint. They argue that careful analysis reveals that determinism is indeed inconsistent with statements of the form "X could have done such-and-such." Others have argued that freedom of the will depends upon freedom of decision, not freedom of action; and that if decisions are determined then it surely cannot be the case that one could have decided other than he did. Still others have claimed that there is no reason to accept the authority of common sense or ordinary language in these matters; that it is the philosopher's job to subject our common opinions to the test of careful, reasoned scrutiny, in the manner of Socrates.
moral judgments and responsibility
Among those who reject common sense as reflected in ordinary language as a basis for philosophical opinion are those who nevertheless endorse the distinction between constrained and nonconstrained causally determined actions but defend it on explicitly moral grounds. Thus, certain philosophers have argued that the aim of holding someone morally responsible should be to influence future behavior in desirable ways—that, indeed, moral responsibility consists in the ability to be influenced by moral judgments. If a judgment of responsibility will not affect behavior in desirable ways, then there is no moral point in holding that person responsible. On this view, most customary excuses will still be acceptable. For it will not, in general, be possible to exert beneficial influence on a person if he did what he did either unintentionally or because no other course of action was possible.
One difficulty with this position is that we are, after all, concerned with persons other than the one whose responsibility is being judged. This concern can be accommodated by taking into account all of the consequences of a given judgment of moral responsibility, and determining whether the consequences are good, or best on the whole. But such a position seems to imply that a person believed to be innocent of an offense might be held morally responsible and be blamed or convicted on the general grounds that it would be socially beneficial to do so. And this seems to conflict with deeply held convictions about the requirements of justice in our commerce with other human beings. Considerations of this sort led Immanuel Kant to warn against the "serpent-windings" of utilitarianism. Utilitarianism seems to many to imply just such an unqualified appeal to social consequences.
Many thinkers feel that a related consideration has great importance in assigning moral responsibility. They have argued that the claims of justice are satisfied if we justify the rules according to which a person is judged to be morally responsible and blameworthy on the basis of the principle that social utility ought to be maximized, but then apply these rules to particular cases in a way that precludes any further appeal to this principle of utility. In this way, the claims of justice may be satisfied and the problem of freedom bypassed. This view, usually called "rule utilitarianism," has been vigorously discussed by many contemporary moral philosophers. One criticism of it is that the restriction placed on the relevance of the principle of utility cannot itself be justified on utilitarian grounds, and that therefore the principles of justice cannot be explained or defended on a purely utilitarian basis.
freedom as self-determination
Another gambit directed against the first argument of the dilemma rests on the distinction between self-determined action and action determined by circumstances external to the agent. Thus, Bradley argued that it is the self that may determine action and that, to the extent that this is so, the person is morally responsible for his actions. He argued that self-determinism does not imply that actions are predictable; actions are, in fact, not predictable, provided that the determining conditions are not entirely "materialistic" because they include "spiritual" or, perhaps, mental causes. The difference between the views of freedom as self-determination and freedom as absence of external constraint is that, although the latter allows that nonconstraining circumstances may be bodily causes external to the agent, the former view rules out this possibility. However, even if one could formulate a clear notion of the self that determines action, there seems to be no reason to suppose that that self, or its determining characteristics, are themselves not determined by circumstances external to the agent. And if this is so, then the action would seem to be determined by circumstances that are ultimately beyond the person's control. In reply to this objection it has been suggested that determinism does not imply that determinants occur before that which is determined—and that in the case of human decisions and action, the causal determinants occur simultaneously with the decision that in turn accounts for the action. Thus, the action is determined by a decision that is not itself the result of circumstances beyond the person's control. For, as the determinants are concurrent conditions, in principle they can be affected by prior action. But it is not clear that this view rests on anything more than an ad hoc assumption needed to establish the possibility of self-determinism. There is, moreover, much psychological evidence for the view that if one's decisions and actions are determined, then the determinants are circumstances temporally prior to them and external to the agent who decides and acts.
Philosophers have been equally fertile in rebutting the second argument of the dilemma. Those who believe that only if determinism is false can a person be morally responsible, and thereby are impelled to attack this second argument, are usually called "libertarians" because they believe that the will itself is free in the sense of being undetermined. Libertarians claim that the fact that a decision or action is not fully determined by antecedent conditions does not imply that it occurred by "chance" or "accident" in a way that confers exemption from moral responsibility. But this argument does not refute the claim that an undetermined event is a matter of chance in a way that implies that it occurred by chance or by accident, in the sense of those terms that is relevant to moral responsibility. For example, the difference between knocking a flowerpot off a shelf as the result of the fully determined but accidental motion of someone's arm or as a result of an undetermined motion of that arm seems irrelevant to a judgment of responsibility. The two events seem equally to void the responsibility of the agent. Both occurrences seem accidental in the relevant sense.
Others—J. D. Mabbott, for instance—claim that the first argument of the dilemma is sound, but it is inconceivable that moral responsibility is inapplicable to the human situation and, therefore, the second argument of the dilemma must be unsound. However, this is hardly an argument; it is rather a dogmatic affirmation of the point at issue. Still another argument is that human beings are so constituted that they necessarily hold others responsible for their actions and necessarily employ concepts in doing so that presuppose indeterminism. This conclusion would seem to rest on dubious psychological assumptions. In any event, if one could develop an account of moral responsibility that does not presuppose that determinism is false, which is morally defensible, and acceptance of which is psychologically possible, this view would be refuted.
There have been other ingenious efforts to escape the toils of the dilemma. But it has also been argued that persons are indeed never morally responsible. According to this view, which has been called "hard determinism," determinism is true and the first argument of the dilemma is sound. Hard determinists allow that blame and punishment may be useful, but they deny that they are ever morally deserved. Persons who blame or punish should do so only when engaged in moral education or social engineering; and blame and punishment have no special moral significance when they are justified as effective aids in these tasks. As the blame is not moral blame, there is no need to establish that it is deserved in virtue of the fact that the person is morally responsible. As John Hospers put it: "When we view other people's frailties and shortcomings in the light of this perspective, we shall no longer say, 'He deserves what he's getting.' Instead, we shall say, 'There, but for the grace of God (and a favorable early environment) go I'" (Human Conduct, p. 521).
Hard determinists forget, however, that the claim that someone deserves what he is getting is not necessarily an expression of moral indignation. It may instead be an expression of the belief that all of the requirements of justice have been satisfied. If it is defensible to suppose that "freedom," used in some sense consistent with determinism, is a requirement of justice, then hard determinism is unacceptable.
The general defect of the dilemma is that it presupposes that the relevant sense of "freedom" can be specified independently of a specific moral outlook, and particularly of a conception of justice. This defect reverses the proper order of moral reflection. The sense in which one can be said to have "acted freely," and therefore to be morally or personally responsible and to deserve blame or praise or punishment or reward, should be specified in the light of one's moral outlook—not independently of it.
Legal Responsibility and Punishment
Many philosophers regard the legal context as paradigmatic for the discussion of moral responsibility. It seems clear that the unfortunate tendency to identify moral responsibility with blame and punishment derives partly from this fact. Nevertheless, the assessment of legal responsibility is so closely related to the assessment of moral responsibility, and legal experts have given such sustained and imaginative attention to the task of articulating criteria that are applicable to complex cases, that a careful study of the relevant aspects of the law will certainly assist the development of an adequate account of moral responsibility. Though problems pertaining to responsibility occur in all branches of the law, criminal law has received the most attention; the topics most frequently discussed in this connection are mens rea and criminal insanity.
The doctrine of mens rea requires a certain "mental element" to have been present when the offense was committed. This mental element is usually, but misleadingly, described as "guilty mind." The characterization is misleading, first, because it is generally supposed that the offender need not be aware that he is committing an offense ("ignorance of the law is no excuse"); and, second, because many advocates of mens rea do not even require that the offender be morally culpable. On this second point there is, in fact, considerable disagreement. Some argue that unless an offender is morally blameworthy for his offense, he does not deserve to be convicted. Others insist on the distinction between moral responsibility and moral blameworthiness, arguing that a person may be morally responsible and may deserve to be convicted and punished for a crime even though his actions were not blameworthy. Broadly speaking, then, those who subscribe to the doctrine of mens rea believe at least that only persons who are morally responsible for their offense deserve conviction and punishment.
Discussions of mens rea usually take for granted the possibility of resolving the philosophical perplexities described above. Certain assumptions, generally unexamined, are made, and the work of articulating criteria appropriate to the criminal law goes forward. Those who accept the doctrine of mens rea in any of its forms believe that the requirement is satisfied if the offender has committed his offense intentionally. Some also claim that unintentional actions that are performed recklessly or negligently involve the necessary mental element. In general, the person who commits an offense is thought to have satisfied the doctrine of mens rea if he knew what he was doing at the time or if he would have known what he was doing had he proceeded with reasonable care and deliberation. The extent to which an offender is able to or actually does exercise deliberate control over his actions and their results seems to be central to the way in which moral responsibility as a condition of deserved conviction and punishment is incorporated into the criminal law. This point is, however, more general than the doctrine of mens rea itself—it being possible for someone to have acted intentionally while, by reason of mental defect, not possessing deliberate control over his actions. Before going on to this point, two criticisms of the doctrine of mens rea should be considered.
Objections to mens rea
There are those who argue that, at least for certain criminal offenses, the requirement of mens rea ought to be abandoned and that strict liability ought to prevail. That is, for certain offenses it does not matter that the act was unintentional and it does not matter that reasonable care was taken. There are various arguments for strict liability, but, in general, the case for it is specific to the offense.
Though the agent's state of mind would seem not to enter into legal deliberations where strict liability prevails, this is not quite so. For example, it has been held that a bank director is strictly liable for borrowing money in excessive amounts from his own bank. In State v. Lindberg, 258 U.S. 250 (1922), the director pleaded that he had been assured that the money borrowed did not come from his own bank. Though the director did not borrow the money from his bank intentionally, the act of borrowing was itself intentional. A person cannot be said to have borrowed money that he accepted as a gift; his own intentions as well as the intentions of the donor are controlling. Though borrowing does, therefore, require a certain state of mind, the absence of the "mental element" involved in intentionally borrowing from one's own bank would be sufficient to discharge a person from moral responsibility. Insofar as the doctrine of mens rea is designed to satisfy the requirement that only a person who is morally responsible for some act or its result deserves to be held legally responsible and punished, strict liability conflicts with it.
Criteria of mens rea
The second criticism does not so much repudiate the requirement of mens rea in establishing responsibility as it criticizes the effort to develop criteria for mens rea. H. L. A. Hart argued that the practical meaning of mens rea is given in what is allowed as excuse or mitigation within the law. In order to determine whether mens rea is established, Hart argues, "it is necessary to refer back to the various defenses; and then these general words (like 'mistake,' 'accident,' and so on) assume merely the status of convenient but sometimes misleading summaries expressing the absence of all the various conditions referring to the agents' knowledge or will which eliminate or reduce responsibility." In other words the general "rules" summarize accepted excuses, and there just are no general principles in terms of which we can account for the acceptance of specific excuses. Hart then generalizes his discussion of mens rea to pertain equally to the assessment of responsibility in nonlegal contexts.
This thesis encounters many difficulties. For one thing Hart neglects to distinguish adequately between exemption from responsibility and exemption from blame or legal responsibility. Thus, if a person defends himself against moral criticism of his having hit someone else by claiming that he was acting in self-defense, he is in effect accepting responsibility but rejecting blame on the grounds that he was justified in what he did. Second, if proposed as a purely descriptive thesis about our actual use of the language of "excuses," Hart's position begs the prescriptive claim that a general rationale of excuse and mitigation ought to be given—that otherwise the acceptance of a certain excuse is morally arbitrary. Those who defend mens rea try to meet this obligation by focusing on the element of awareness of what we are doing when we choose and act. Indeed, Hart becomes his own best critic when, in a later essay, he argues that the main rationale for excuse and mitigation within law is respect for "the claims of the individual as such, or at least as a choosing being."
A person might intend to kill a particular person after careful deliberation, and do so; and this would be sufficient to satisfy mens rea. But if the offender suffered from extravagant delusions of having been persecuted by the person killed, he would normally be thought to be entitled to exemption from criminal liability on grounds of insanity.
The criterion of legal insanity generally adopted within Anglo American law is the M'Naghten Rule. This rule was formulated by the judges of England in 1843 in response to the public outcry that resulted when Daniel M'Naghten was acquitted, on grounds of criminal insanity, of murdering Sir Robert Peel's private secretary. M'Naghten had mistaken the secretary for Peel and had killed that unfortunate man while suffering from persecutory delusions about Peel's intentions toward him. The judges attempted to provide a morally sound, legally workable criterion for determining whether a person was entitled to acquittal on grounds of criminal insanity. They affirmed that:
to establish a defence on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. … The question has generally been, whether the accused at the time of doing the act knew the difference between right and wrong. [Italics added.]
The rule has been the object of vigorous attack and defense ever since its formulation. One type of criticism roughly follows the line of argument expressed by various parts of the dilemma formulated earlier. For example, Barbara Wootton, arguing from a determinist position, claimed that no acceptable criterion of criminal insanity can be formulated; that efforts to formulate an adequate criterion of mental defect, and, in the final analysis, of responsibility itself, shatter on the rock of the first argument of the dilemma. Consequently, all efforts to assess moral responsibility should be abandoned within the criminal law. The law should be concerned solely with treating the offender. It is clear that this "reform theory" approach to the criminal law would sweep away not only the insanity plea, but mens rea as well. Thomas Szasz, by contrast, argued that there is no such thing as a mental illness, that the insanity plea is never a valid excuse, and that, therefore, it ought to be abandoned. This argument leads to the same conclusion on policy as that reached by the reform theorists with respect to the insanity plea, but leaves mens rea intact. Szasz is not skeptical of moral responsibility as such. Others, like David Bazelon (in his Isaac Ray Award Lecture, "Equal Justice for the Unequal"), criticize the M'Naghten Rule as being too narrow—as not embracing all those defects of mind that entitle an offender to exemption on grounds of not having been morally responsible for his offense. It seems clear that many of the issues generated by this debate, as well as those that concern the doctrine of mens rea, await an adequate philosophical theory of moral responsibility.
An Approach to Atheory of Moral Responsibility
An adequate theory of moral responsibility cannot identify moral responsibility with liability to blame or punishment. Moreover, any such theory must explicitly recognize what is, in any event, generally the case: that the meaning assigned to the key concepts in the theory, particularly "freedom," reflects the moral outlook of its author.
The second point is of particular importance. Suppose one reflectively endorses a conception of justice according to which a person deserves blame or praise, reward or punishment, and so on, only if that person's decisions or actions are not determined. Then one should define "freedom" in such a way that "P decided (acted) freely" implies "P 's decision (action) was not determined." Correspondingly, suppose one endorses a conception of justice according to which a person deserves blame, and so on, only if his decisions or actions have some property that may or may not be causally determined by circumstances beyond his control. Then "freedom" ought to be defined in such a way that the meaning of "P decided (acted) freely" is consistent with determinism. It is our practical aims and interests that should govern the shape of our language, and not unreflected-upon linguistic habit that should govern the shape of our moral outlook.
Thus, a theory of justice is the essential foundation for a theory of moral responsibility. In this connection it should be remembered that just acts are not always right. (Would it be right to refrain from punishing an innocent person if the consequence was the destruction of human civilization?) Moreover, acts of blame, praise, reward, and punishment that are not just may sometimes be right. (One may be justified in blaming or praising an infant in order to influence his future behavior, but there would be no justice in it.)
See also Action; Aristotle; Augustine, St.; Bradley, Francis Herbert; Consequentialism; Determinism and Freedom; Edwards, Jonathan; Hart, Herbert Lionel Adolphus; Justice; Kant, Immanuel; Pelagius and Pelagianism; Philosophy of Law, History of; Punishment; Socrates; Utilitarianism.
Some of the more interesting classical and contemporary discussions (in a vast literature) are cited below.
For broad treatments of responsibility, see Harald Ofstad's Freedom of Decision (Oslo, 1960) and Austin Farrar's The Freedom of the Will (London: A. and C. Black, 1958). A number of important papers can be found in the anthologies Free Will, edited by Sidney Morgenbesser and James Walsh (Englewood Cliffs, NJ: Prentice-Hall, 1962); Determinism and Freedom, edited by Sidney Hook (New York: New York University Press, 1958); Freedom and the Will, edited by D. F. Pears (New York: St. Martin's Press, 1963); and Freedom and Responsibility, edited by Herbert Morris (Stanford, CA: Stanford University Press, 1961). The Morris collection contains many papers particularly relevant to legal responsibility and has an extensive bibliography.
Historically, the most important work is Aristotle's Nicomachean Ethics.
determinist and libertarian defenses
The best traditional defenses of the view that moral responsibility and determinism are compatible are Jonathan Edwards's Freedom of the Will (1754), edited by Paul Ramsey (New Haven, CT: Yale University Press, 1957), and David Hume's An Enquiry concerning Human Understanding, Ch. 8. Important contemporary statements of the same position have been made in C. L. Stevenson's Ethics and Language (New Haven, CT: Yale University Press, 1944), Ch. 14; Moritz Schlick's Problems of Ethics (Englewood Cliffs, NJ: Prentice-Hall, 1939), Ch. 7; and P. H. Nowell-Smith's Ethics (New York: Philosophical Library, 1957), Chs. 19–21.
The most influential recent defenses of the "libertarian" position are C. A. Campbell's "Is 'Free-Will' a Pseudo-Problem?," in Mind 60 (1951): 441–465, and Stuart Hampshire's Thought and Action (London: Chatto and Windus, 1959). See also J. D. Mabbott's "Free Will and Punishment," in Contemporary British Philosophy, edited by H. D. Lewis, 3rd series (London, 1956).
For hard determinism, see Holbach's Système de la nature (London, 1770) and John Hospers, "Free Will and Psychoanalysis," in A Modern Introduction to Philosophy, edited by Paul Edwards and Arthur Pap. 2nd ed. (New York: Free Press, 1965), pp. 75–85. This volume contains an extensive bibliography of material bearing on the topic of the present entry on pp. 99–108.
Some recent texts that place the problem of moral responsibility in the general context of an ethical theory are Richard Brandt, Ethical Theory (Englewood Cliffs, NJ: Prentice-Hall, 1959); A. C. Ewing, Ethics (London: English Universities Press, 1953); W. Frankena, Ethics (Englewood Cliffs, NJ: Prentice-Hall, 1963); and John Hospers, Human Conduct (New York: Harcourt Brace, 1961).
problems in theory-making
Of the many technical articles dealing with various conceptual problems involved in the development of an adequate theory of moral responsibility, the following are of some interest.
On the difficulties of analyzing such terms as can and ability, see John Austin, "Ifs and Cans," in Proceedings of the British Academy 42 (1956): 109–132; Richard Taylor, "I Can," in Philosophical Review 59 (1960): 78–89, and A. S. Kaufman, "Ability," Journal of Philosophy 60 (September 12, 1963): 537–551.
On the difficulties of analyzing such terms as intention and decision, see Carl Ginet, "Can the Will Be Caused?," in Philosophical Review (1962): 49–52; Stuart Hampshire and H. L. A. Hart, "Decision, Intention, and Causality," in Mind 67 (1958): 1–12; G. E. M. Anscombe, Intention (Oxford: Blackwell, 1957), and A. S. Kaufman, "Practical Decision," in Mind 75 (1966): 25–44.
questions in criminal law
For works especially pertinent to the relevance of moral responsibility to the criminal law, see, in addition to the Morris collection (Freedom and Responsibility ): J. D. J. Edwards, Mens Rea in Statutory Offenses (London, 1955); Joel Feinberg, "Problematic Responsibility in Law and Morals," Philosophical Review 71 (1962): 340–351; and G. L. Williams, Criminal Law: The General Part (London: Stevens, 1953), pp. 28–45, 77–81. See also Henry Hart's "The Aims of the Criminal Law," in Law and Contemporary Problems 23 (1958): 405–441, which presents a general defense of the claim that moral blameworthiness is an essential condition of criminal liability. For a contrary view, see H. L. A. Hart's "Legal Responsibility and Excuses," in Hook's collection, Determinism and Freedom ; this article also in part constitutes an amendment to his own earlier essay, "The Ascription of Responsibility and Rights," PAS 59 (1949): 171–194, where he argues against the possibility of a general rationale of excuse and mitigation.
On the topic of strict liability, see R. A. Wasserstrom's "Strict Liability in the Criminal Law," Stanford Law Review 12 (1960): 730–745.
The literature dealing with criminal insanity is vast; see Barbara Wootton's Social Science and Social Pathology (London: Allen and Unwin, 1959), Ch. 8; Thomas Szasz's Law, Liberty, and Psychiatry (New York: Macmillan, 1963); David Bazelon's "Equal Justice for the Unequal" (The Isaac Ray Award Lecture). Unfortunately this last work is available only in mimeographed form.
Among scientific writings that have a special relevance are M. Gluckman, The Judicial Process among the Barotse of Northern Rhodesia (Manchester, U.K.: Manchester University Press, 1955), and B. F. Skinner, Science and Human Behavior (New York: Macmillan, 1953), Chs. 12 and 22.
Arnold S. Kaufman (1967)
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