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Punishment and Freedom$
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Alan Brudner

Print publication date: 2009

Print ISBN-13: 9780199207251

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199207251.001.0001

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Responsibility for Harm

Responsibility for Harm

(p.131) 4 Responsibility for Harm
Punishment and Freedom

Alan Brudner

Oxford University Press

This chapter discusses the following issues: should results matter to the deserved measure of punishment and, if so, why? If they do matter, are there limits on liability to punishment for results and, if so, where is the line to be drawn? At results caused intentionally? At results caused with foresight of their likelihood? At results caused negligently? When does a cause intervening between the defendant's culpable conduct and the proscribed result shield the defendant from criminal liability for that result? The chapter argues that answers to these questions cannot be derived from the formal agency paradigm and so require transition to a new framework, one ordered to promoting the conditions for realizing the agent's potential for autonomous action. It shows that the new paradigm (of real autonomy) is already implied in the formalist one and that it generates normative limits on the extent to which luck can determine the rightful measure of punishment.

Keywords:   harm, outcome responsibility, autonomy, luck, moral fate, intention, recklessness, foreseeability, fault-undifferentiated crimes, novus actus interveniens

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