(p. 831 ) Index
action
agent-relative permission or excuse for 290
alternative elicitors 311–13
analytical truths 529–30
anti-realist position 256–7
ascription of responsibility for 46
balance-of-evils defence 288
behavioural translation of terms 529
categories of 496–7
causal theories 530–1
causation, and 527–34
cause and effect 320—4
cause, concurrence with 286–93
caused 537
character, relationship with 572–3
classes of 755
desire-responsive behaviours 300
desires and intentions, conflict between 307–8
dissociated 301–9
distinctive cause of 47
essence of 49
executed intention, as 625
human, nature of 45
ideo-motor theory 312
intention, move from 604–5
intentional 56–9
liability, not causing 287
meaning, metaphysical question of 253
mens rea requirement 315–17
mental cause explanations 299–300
mental state for 48
metaphysics of 319
morally obligatory 757
natural event, as 298
natural kind of event, as 259
non-causal feature of 47
positive account of 527
properties presupposed by 49
purpose of 56–8
rationality, as presupposition of 62–3
representational states guiding 407
responsibility for 49
spatio-temporal locations 324–6
state prohibition, immune to 770–3
subpersonal bare intentions for 302
things being 311
vagueness, indeterminacy through 257–8
volitions see volitions
voluntariness 46
willing 48
wrongdoing, as element of 45–50
actus reus
requirements 46
addiction
cause of behaviour, as 526
evidence on 789
excuse for stealing, as 555
excuse of 493
fixation of desire 789–90
moral responsibility, and 791
morally troubling, whether 791
adjudication
theory of 655
administrative law
arbitrary nature of 21
nominal kind, as 22
underlying morality, as reflection of 21
agency
personal 429
anger
vocabulary of 431
Anscombe, Elizabeth 55
Austin, John 18
(p.
832
)
autonomy
capacity to act, as 612
causal power 610–11
character-forming 612–14
choose, capacity to 611–12
concept of 610
criminal law, presuppositions in 612–13
exaggerated idea of 611
human action, analysis of 610
impairment of 76
Millian sense of 77
need for 610
persons, of 63
reasons for action 611
use of criminal sanction, cost of 77
Beale, Joseph 54
beneficence
duty of 283
Bratman, Michael 313–15
capacity
judgements of 26
causation
act, concurrence with cause 286–93
act descriptions 50
act-token 341–2
action, and 527–34
agent-causation 47
analysis of 79
aspect 387
assessment of responsibility, theory applicable to situations of 53
attributive contexts, objects as causes in 360–1
Becht/Miller/Keeton/Wright view of 360
but for test 345–9
causal candidates, limiting 335
causal chains 358–9
causal relation 352
causal theories
but for 53
counterfactual 52–3
excuses, of see excuses
one-relation 52–3
two-relations 51
types of 50
causally related facts 388
cause, analysis of 358
central notion of 333
counterfactual second agent objection 349–51
criterion for selection 336
direct 358
epistemic 78
event as causes 355–7
event-types, relation between 387
explanatory and attributive contexts 53
extensional contexts 340
fact-causation theories 387–8
factual aspect of 51
feature 387
garden variety 47
immediacy of 703
insanity, and 534–7
involvement, meaning 355
legal 52
Legal Realist tradition, anti-realism of 337
liberal tort law, basis of 338
mental state requirement 51
morality, question of 337
motivation, and 337
non-foundationalist reasons for belief in mattering 224–46
omissions 273–4
ontologies for cause 347
orthodox view, requirement of 41
physical force, as 54
plausible notion of 55
pre-emptive concurrent cause 351
pre-emptive examples 349
properties, causes as 342
property 387
reductio argument 343
relational analysis 386
requirements 53
responsibility, foundational first principle of 219–24
scalar phenomenon, as 54
similarity, over-all 347
testing counterfactuals 351
type 387
unanalysable primitive, as 359
universal, freedom from 616
victim-in-peril/victim-not-in-peril distinction 700
voluntary action, negating 534
character
causal power over 776
change of 777
coherence of 777
control over 244–5
limited capacity/opportunity to form 243–6
responsibility for 241
Christianity
moral luck and moral desert, argument as to 196
compensation
duties of 209
conspiracy
common purpose 458
constitutional law
American, nature of 20
corporation
moral or legal person, as 623
Corrado, Michael 266–70,315–18
costs
enforcement of law, of 663–4
crime tariff
meaning 664
criminal law
backward-looking 76
causation see causation
citizen obedience, obligating 184
consequences, capacity for 27
crime-prevention and retribution, functions of 27–9
culpability, conditions of 35
defences see defences
distinctive goal of 34
distinctive good, serving 25
general part and special part 30–5
general part, nature of theory of 35–64
inchoate crimes, allocation to general part 32
law marked as 23
legislation, co-ordination of theories by 73
moral judgments 31–2
moral wrongs 185
morality, incorporation of 133
morally neutral or morally good acts, prohibition of 185
natural kind view of 24
nominal kind, as 23
prohibitions, principles for 67
punishment see punishment
purposes guiding 255–6
regulatory offences 186
remedy-based view of 24
requirements of retributive justice, as formalized description of 20
responsibility see responsibility
retribution as intrinsic good 29
sanctions, identification by 24
special part
(p.
834
)
doctrines and theories of 64–8
legislative motivation 67–8
nature of theory of 64–78
specified prohibitions 67
theories of 3–4
data for 18
general part, of 9
legal system with criminal prohibitions, from vantage point of 66
limits of criminal law, nature in 75–8
questions raised, laid out in nature of 23
special part, of 10
wrongful action, of 74–5
utilitarian goals 29
wrongful action, conditions of 35
culpability
actor, focusing on 404
bomber pilots, of 409
choosing to do wrongful act 414
conditions, satisfaction of 112
corrective and retributive justice, demands of 417
criminal law, in 414
death of innocent, action resulting in 408
defences see defences
desert-base, as 192
deserving of punishment, as necessary condition of 193
emotions, moral norms about 406
excuse 59–60
existence of wrongdoing, irrelevance to 334–5
fairness, and 409
independent need for 193
intent and foresight, difference between 409
intention see intention
justice, types of 414–19
justifications, allocation of 66
meaning 403
mental states grounding 420
mental states, objects of 412–13
moral, assessing 408
moral judgments 112
moral norms 405
morally wrong act, doing 412–13
narrower sense, in 404
outer limits of desert, setting 247
primary norms 405
properties of 55
punishment for 204
purpose, role of in assessing 450
retributive punishment, triggering 416
risk of harm, of 208
subjective view 65
unexercised capacity, of 418
wrongdoing, as 405
wrongdoing, conjunction with 36
Davidson, Donald 385–6
defences
blameworthiness, negating 482
crimes of violence, to 65
culpability 482
defence of others 711–17
excuse see excuses
extrinsic policy 482
insanity 61–2, 485
abolition, argument for 488
irresistible-impulse version 490
justification of 596–7
status, as 500–1
mens rea, lack of 484
new, proposals to add 488–9
(p.
835
)
provocation 718
proximate cause, lack of 484
rebuttal, as 484
self-defence 711–17
victim, consent of 708–11
voluntary action, lack of 484
determinism
acceptance, effect of 516
as if view 514–16
assumption of 487
causal theory, and 504–6
character theory of excuse, argument for 575
character-stop answer to 575–6
degree 506–11
dualistic 513–14,517
hard 487
ignorance 511–12
partial strategies 506–14
plausibility 504
reductio ad absurdum argument 504–6
responsibility, compatibility with 514–22
selective 513
deterrence
punishment as 84
Devlin, Patrick 129
Dilman, Ilham 428–30
double jeopardy
approaches to 261
instances of offences 328
same tropes, for 326–9
units of offence 253–4
dreaming
function of 26
drug use
addictive nature of 787–8
cognitive capacities, erosion of 788
creative endeavours, interference with 787
culpability 782
hedonic character 781
human attainment, prevention of 786
immorality 778
intoxicated defendants, punishment of 782–3
liberty of 778–95
liberty with respect to 792–5
moral obligation against 791
morality of 779–92
persuasion against 795
pleasurableness 781
political implications of 785–6
potential immorality 780
proxy crime, as 783–4
risks of 781–2
self-defining choice, as 793–5
social implications of 784–5
Duhem, Pierre 14
emotions
capacity for 615
choice, relation to 558–9
epistemic connection to morality 134
epistemic reliability 137–8
irrational 118
laws of proportionality, obeying 182–3
mental states, distinct 614
moral dilemmas, response to 183
moral knowledge, not necessary for 132
moral norms 406
objective moral features, response to 229
reliance on as justification for retributivism 181–4
representational content, operating on 404
responsibility for 570
sensory perception, analogy to 130
(p.
836
)
words used to describe 182
Epstein, Richard 54
ethics
emotivist and prescriptivist theories 623
fundamental distinctions 162–3
substantive, theory of 669–70
excuses
case in chief, negating 496–500
causal theory of 60
acceptance of 488
action, and 527–34
aspects of 487
common sense view 488
descriptive theory, as 486–7
determinism see determinism
doctrinal plausibility 491–502
existing legal excuses, interpretation of 489–90
free will, exercise of 487–8
influence of 547
insanity, and 534–7
legal excuses, inaccurate description of 523–37
metaphysical and linguistic dualism, effect of 521–2
moral case for 537
moral incorrectness 537–47
moral plausibility 503
principle of responsibility, interpretations of 540–6
psychiatrists, acceptance by 490
seductive plausibility 491–504
unpalatability 504–22
character theory of 60
act out of character, excusing 579–82
action and character, relationship between 572–3
aesthetic responsibility 586
arguments for 574–5
backward-looking behaviour 564
change of character, implications of 580–1
choice faced by 566
courageous actions 586–7
denial of 568
filtering function of excuses 563
forward-looking behaviour 564
ground of 562–3
hard determinist premises 575–6
hidden or new character defects, effect of 582–3
idiosyncratic and instantaneous motivation, character including 582
interpretivist argument 576–7
meaning 548
moral responsibility, general view of 563
negligence, and 590
particular agency, character as 567–8
past actions, behavioural descriptions of 564
phenomenology of character 565–6
responsibility 568–71
utilitarian theory of punishment, argument from 574–5
view of character 564–5
violent traits not acted on, punishing 584–7
will, weakness of 583–4
wrongful act, inference from 577–8
character versus choice as touchstone of 574–88
choice theory 60
alternative terms 549
bad character, effect of exhibiting 587–8
choosing agency 557–8
could have done otherwise, interpretation of 552–3
defective capacity 554
duress, excuse of 555–7
early expression of 549
emotions, effect of 558–9
example of choice 554
fairness and justice, considerations of 551
general principle of moral responsibility, as 550
general theory of responsibility, instantiation of 548
goodness of choice 551
impossible or very difficult choices 553–4
(p.
837
)
justification questions 561–2
justifications 550–2
meaning 548
negligence, and 589
utilitarian rationale 551
conditions of 481
defences 42
emotionality, presupposition of 614
environmental causes 525
fair opportunity, lack of 559–62
intervening causes 499
items called 41
justification, and 673–4
justificatory defences, connected to 65
legal 481
moral 537
moral responsibility, reliving actor of 483
necessity 493
no mens rea 498
no proximate cause 499
provocation 493
theories of 59
causal see causal theory, above
character see character theory, above
choice see choice theory, above
descriptive 485–6
freedom, as theory of 481
meaning 485–6
false imprisonment
ignorance of 281
feminists
retaliation, view of 124
Finnis, John 221–2
Foot, Philippa 689–91
foreseeability
attention paid to 372–3
causal relation, analysis of 384–5
coherence of concept 364–5
conceptual objections 363
conceptual problem with 363–9
degrees of 364
description of harm-event, dependence on 365
event-types, typology of 392
existential generalization, failure of 373–6
extensionality 369–84
extensionality, failures of 389
foresee, description of 379
future events, dealing with 383
harm, of 368
harm-tokens, of 389
harm within risk analysis 395–7
indeterminacy 370
individual events, clumping into types 393
multiple description problem 367–9
natural categorization of events 393
negligence standard 398–9
normative notion, as 364
object of foresight, description of 378
ontology 384–98
opacity 369–84
particular event in test, reference to 382
predictability, degrees of 366
proximate causation, doctrines of
class of harm, anticipation of 389–90
conceptual bankruptcy 399
criminal and tort law conceptions 395
harm within risk analysis 395–7
normative grounds, rejection on 398
normative justifications 394
objections to 363
remoteness conceptions 395
salvaging criterion of 395
torts, classes of 365–6
vagueness of 364
reference-shifting strategy 383
scepticism about 382
similar events 369
substitutivity, failure of 373–4
sufficient condition test 385
tests, discrete problem of 370
types of harm, of 392
vacuousness of test 368
free speech
right to 764
Glueck, Sheldon 507
Goldman, Alvin 318–29
harm
act as cause of 213
foreseeability see foreseeability
legal typology, lack of 391
shared typologies 394
typing of 390–1
homosexuality
laws allowing 657
Hume, David 52
hypnosis
killing during 297
identicals
same properties, sharing 320
immoral behaviour
criminalization 80
incapacitation
punishment as 84
infant
criminal responsibility 61
insanity
causation, and 534–7
classification 61
criminal responsibility 61–2
excuse, as 596
force-fittings 61
legal 535
status conception 535
tests of 535–6
intention
action, move to 604–5
agglomerate 314
analysis of 79
conational states of 407
concept of 622
conflicting 407–8
consequences, desiring 451
culpable, failure to form 239–40
direct, punishment as murder 457
direct versus oblique 450–9
distinctiveness of 313
foresight 56–8
functional analysis of 449
harm prohibited, as to 474
hierarchy of 604
importance of 238
individuation, theory of 57–9
inevitability of result 454–6
intention-agglomeractivity 607
intention-belief consistency 607
intentional objects 57
interpretive stances, product of 59
irrationality 607
law and morality, prohibited by 477
limited capacity to effectuate 234–9
mediating role 449
mens rea requirement 317–18
mental state, as 62
mental-state concepts, relation to 519
metaphysics of individuation 459–69
motivational states of desire, and 407
nature of 55–9
nominally distinct, sameness of 466
object of purpose, fixing 453
(p.
839
)
objects of
analogizing of words appearing in 459
differing descriptions of 377
fused idioms, as 460
individuation of 408
interpretation of words 464–6
ontological question 459
propositions, as 463–4
queerness objection 464
real world objects, as 460
reference or extension, lack of 464
referentially opaque 461–3
referentially transparent 461–2
oblique 450
physical phenomena, reference to 521
purpose/knowledge distinction 451–4
rationality restraints on 313–15
related states, as to 455
specific and general 55
statutory prohibitions 475
subpersonal bare 302
theory of 55
two distinct, treatment as the same 476
types of events, identity conditions 466–7
unconscious 449
unconscious general 304
interrogation
acoustic separation 732–4
assaults during 672
desirable behaviour 726–7
legislation producing desirable behaviour 727–36
realm of law, outside 727–32
techniques of 671
techniques to save life 731
intoxication
defence of 485
defendants, punishment of 782–3
intention, effect on 788
involuntary as defence 501–2
morally troubling, whether 791
jurisprudence
general and particular distinguished 18–19
justification
culpability, allocation to 66
defence of 65–6
deserved punishment, amount of 225–9
doctrines of 66
foundationalist view of 218
generalisation 228
non-deductive arguments 224
non-foundationalist view of 224–5
schemes of 218
Kant, Emmanuel 195–6
Katz, Leo 286–93
Kelman, Mark 337–41
killing
act of 406–7
act-types, prohibition of 475
asleep, when 294–309
directing 297
innocent aggressor cases 713–14
innocent, of 408
intention of result 454–7
legal differentiations 471
letting die, and 274–7
Klein, George 423
knowledge
good of 221
Langdell, C.C. 11–12
language
dual functions 621
linguistic dualism 433
moral and legal usages 621
non-action 429–30
philosophy of 520
reference of words, fixing 431–2
law, areas of
arbitrary nature of 21
distinctive goal of 34
functional kinds 20–2
general and particular jurisprudence distinguished 19
individuation 19
judicial action, kinds of 22
legal remedy, border marked by 21
(p.
840
)
nature of 18–23
ontological thinking 19
predictability, values of 11
structural essences 22–3
theories of
aesthetically satisfying 10
choice of 15–16
content-laden 34
content-neutral 34
content, problem of 13–14
contract 11–12
deeply descriptive principles, predictability 11–13
descriptive and explanatory tasks 9
descriptive and normative 9–10
doctrine, relationship with 13–14
explanatory 4
general points 4
justification for developing 10
logical fit, degree of 16
nature of 4–18
reconciliation of doctrines 12
tort 5–7
underdetermination, problem of 14
value-free 15
values, role of 15–17
underlying morality, as reflection of 21
legal moralism
criminal legislation, co-ordination of theories by 73
half of theory, limiting 73
illegality of conduct, irrelevance of 72–3
legislation, theory of 72
limits of criminal law, nature of theory in 75–8
non-exclusionary view of 70
retributivist theory, connection of theory to 71–2
wrongful action, of 74–5
legality
principle of 186–7
legislation
acoustic separation 732–4
classical liberal theory of 664–5
improperly motivated, right against 751
legal moralism 645–6
legal moralist theory 756
liberalism 757
moral welfare, concern for 758
naive view 650–1
non-moral paternalism 759–60
offensive actions, against 761–2
paternalistic theory 645–6
political expediency 642
rationality, demand for 749
representational and substantive theories of 641–2
theory of 639–40,741
virtuous behaviour, coercing 759
legislative aim
elimination of harm, restriction to 647
proper, substantive and representational theories of 640–2
retaxonomizing theories of 647–52
substantive theories, Millian taxonomy 642–7
taxonomy of substantive theories 639
theory of 639
types of theories 640
utilitarian 643
legislative motivation
aims 68
exclusionary and non-exclusionary aims 69–70
legal moralism 69–70
nature of theory of 68–75
physical and economic harms, prevention of 68–9
prohibitions, for 67–8
psychic harms, prevention of 68–9
liberalism
classic 647
classical, retributivist case against 659–61
minimalist 653–6
morality of 658
retributivist-legal moralist 661–5
voluntarist 653–6
liberty
abortion, right to have 763
actions to which extending 745
affirmative requirements impinging 279
coercion, right to be free of 749
content of basic right 771
derived right to
actions to which attaching 750–1
content of 751
effect of 762
legislature’s duty 753
self-regarding acts 752
distinct 741
drugs, criminalization of use of 739
general duty to respect 742
general freedom to act, as 281–3
general right to
duty, as 742
elusiveness of 739–40
moral right, as 741
problems with 743–6
strategies for defence 743
general sphere of 767
harm diminishing 744–5
harm principle 768–9
inchoate 283
individual, sphere immune to governmental regulation 772
injuries to rights of others, causing 769
limitations, variability of 277–81
loss of 744
moral right to 740–1
natural, value of 282–3
negative definition of 741–2
non-interference with decisions 282
opportunity-set notion of 278
political right to 745
primary concept of 741
privacy decisions 740
self-defining choices 773–5
speaking freely, of 740
state prohibition, actions immune to 770–3
licence
factual descriptions, multiplicity of 370–2
Mackie, John 177–80
Menninger, Karl 113
mens rea
intention or belief requirement 317–18
lack of as defence 484
lack of as excuse 498
meaning 316
no substitution rule 474
requirement 315–17
mental illness
insanity see insanity
mentally ill persons
borderline personality disorder 616
infants and wild beasts, analogy with 609
irrationality
(p.
842
)
action being 605–6
belief, in 606
conflict of intentions 608
denial of rationality 603–5
desire, in 606
excusing, being 609
inconsistency of desires 608
intention, of 607
moral responsibility, excusing from 608
moral responsibility, lacking 597
metaphysics
action, of 319
analysis, utility and truth of 256
brute facts of 253
criminal law theory, in 254
issues of legal and moral responsibility, relevance to 252–62
legal/political philosophy, use of word in 253
morality, of 255
reservations about role of 257
resistance to 253
scepticism 621
single-instance trope 319
moral beliefs
justification of 218
moral duty
stringency of 279–80
moral luck
abnormal, freakish or chance way, consequence of action by 215
bad 212
baseline of comparison 214–15
control, notion of 216–18
existence of 213
four kinds of 235
good 212
increase and reduction of blame 216
issue of 208–10
justification 211
lack of control, effect of 212
recasting problem of 211–18
result 235
morality
absolutist view 688
act-consequentialist moral theories 680–4
actions motivated by reverence for moral law 128
addressees of 669
agent-relative 292
agent-relative views
consequences calculated on 688–706
moral absolutes, consequences overriding 721
norms 687
rationality of 703–5
causation, effect on 337
common sense 560
consequential calculation
agent-relative theories, on 688–706
foreseeing/risking distinction 691–2
intending/foreseeing distinction 690–1
limits on 689–98
purposeful and knowing action and knowing and risk-taking action, distinction between 700
reassessing limits 698–703
torture, limits applied to 705–6
consequentialist 650
consequentialist theory 755
conventionalist view 130
corrective and retributive justice, primary norms of 415
correspondence thesis 766
deviant sexual practices, view of 279
emotions, and 127–38
epistemic connection to emotions 134
exceptions to norms
all-or-nothing difference, not making 708
defence of others 711–17
general need for 706–7
generally culpable, prepaid punishment of 717–19
implicit 706–7
moral plausibility, for 706
(p.
843
)
self-defence 711–17
victim, consent of 708–11
feelings, as to 133
guilt, and 139–52
hard choices beyond 729–30
harm, responsibility for 131
hierarchically organized set of reasons, as 659–60
homosexual behaviour, of 129
ideal theories of 730
immoral behaviour, punishing 151
inadvertent risk creation 414
injunctions 669
legal moralist legislator, view of 756
metaphysics of 255
moral norms 687
moral outrage 139–52
moral realism, view of 140
moral wrongs, punishment of 662
mores, versus 761
non-absolute norms 719–24
non-consequentialism 687
non-moral guilt 135
obligation not to do action and right to do action, containing 765–6
private 210
public 211
rational 181
retributivist-legal moralism 661–5
rule-consequentialist moral theories 684–6
self-evident truths of 220–4
substitution rule, lack of 413
teleological view 650
threshold deontology 719–24,733
truth of judgments 139–52
virtues, theory of 576
morals
first principle of 219
Nagel, Tom 211–18
necessity
acting in, outside realm of law 727
balance of evils, and 672–80
citizens, balance of evils by 676
defence of
act-consequentialist moral theories 680–4
catch-all justificatory provisions, as 675
flexibility 679
good consequences justifying evil actions 680–8
justification, as 673–4
moral knowledge required for 675–80
nature and rationale 672–5
rule-consequentialist moral theories 684–6
excuse of 493
hard choices beyond morality 729–30
lesser evil doctrine 678–9
self-preservation 732
shipwreck cases, in 693–4
tort law, defence in 672
negligence
common law rules of 5–6
conduct requirement, as 411
criminal law, not prohibited in 415
fault system, function of 7
liability, parcelling out 7
moral responsibility for 588–92
risk-taking 411
substitution rule for belief, as 413
unuttered, unused and unknown theory as part of law 11
variable, theories as functions of 16
omissions
act and cause, concurrence of 286–93
agent-relative and agent-neutral duties 281
broader conceptualization of 266
causes, as 273–4
creation of peril 270
criminal codes, terms of 283–4
displacement refraining 272–3
ducking cases 286–9
embedded 269
forgetting 264
generic notion of 262
intentional agency, as 262–6
letting die 274–7
(p.
844
)
liability for 262–77
liability, legality worries about 282–4
motionless actions 266–73
motionless driver hypothetical 268–70
narrower conceptualization of 263
negative and positive duties, comparative strengths of 285–6
negligent 264–5
non-willed 263
normative issues 277–86
not punishing, justification for 278
post-efforts test 285–6
resisting as 272–3
willed bodily movements, absence of 267
wrongness and liberty limitations, variability of 277–81
ontology
problem of 19
ownership
concept of 620
pain
descriptions of 436
persons
attributes of 63–4
autonomy see autonomy
emotions see emotions
general capacity, inquiry into 61
infancy 61–2
insane, responsibility of 61
metaphysical suppositions 617
moral and legal usages of term 623–4
rationality see rationality
representational states, possessing 618
unified character structure 615
unified consciousness 616
privacy
invasion of 77
property law
doctrines applying to 33
function of 20
general part, absence of 33–4
goal, lack of 34–5
hodgepodge of 34
responsibility theory, lack of 34
psychiatry
Freudian, decline of 420
psychoanalysis
classic data of 444
clinical and metaphysical theories of 423–4
mental phenomena, relation to brain processes 446
punishment
Anglo-American, function of 28
atrocities, of 99
attempt, for 194
bad character, for 584–5
chancy 203
classification system 83
completed crime, for 209
crime, not undoing 110
crime prevention, for purposes of 28
dangerous but innocent man, of 95
desert, role of 191
deterrence 84
deterrence grounds, on 29
example, as 28
feeling of hatred, gratification of 89
harm to person punished, as 111
humanitarian conceptualization of 87
incapacitation, as 84
innocent person, of 95
intentional homicide, for 29
judicial function, theory of 71
meaning 24–5
narrow view of 71
no further danger, criminal representing 100
payment for wrong, as 416
philosophy of 170
pretence of 100–1
preventive detention 95
prima facie justifications 84–91
proportionality and economy 202
punitive purpose, for 25
pure theories of 91–2
rehabilitation see rehabilitation
retributivism see retributivism
retributivist theory, connection of legal moralist theory to 71–2
risk of success in crime, link to 210
sanctions constituting 25
treatment, as 87
punishment institutions
design of 207
Quine, W.Y 14
rationality
agent-relative views of morality, of 703–5
criminal law, presuppositions in 614
degrees of 62
example of 603
intentionality, as presupposition of 62
legislation, in 749
mentally ill persons see mentally ill persons
metaphysics of 634
need for 610
practical capacity, erosion of 789
presupposition of 604
rehabilitation
ideals of 85
making criminals safe to return 85
moral luck, problem of 208–10
paternalistic theory of 85–7
punishment as 85
resources, use of 86
treatment, as 87
religion
absolute norms within 687
Rescher, Nicholas 245
responsibility
actions, for 49
active 40
agent-regret 198–201,206–7
Anglo-American criminal law, in 41
ascription of 621
assessment of 543
capacity conception 549
causation see causation
causation matters as foundational first principle of 219–24
cause, as 36
character theory 207
character versus choice as touchstone of 574–88
choices, intentions and plans, limited capacity to effectuate 234–9
choices, limited capacity to make 239–43
denial that result matters, judgements affected by 233–46
desert-bases 191
determinism, compatibility with 514–22
dimensions of 403
duty, as 36
intention and intentional action 55–9
intention, importance of 238
intentionality, requirement of orthodox view 41
killing, for 206
lack of control, effect of 212
legal and moral, relevance of high metaphysics of action to issues of 252–62
legal liability, as 36
linguistic argument 206
(p.
846
)
mental trying, notion of 239
mentally ill persons see mentally ill persons
moral property, as 35
moral strict view 40
nature of 36–45
negligence, for 588–92
objects of 37–8
obligations, as 36
orthodox versus subjective conceptions of 191
passive 38–9
person-based view of 38
persons having 403
persons, nature of 60–4
possible conceptions of 191
prima facie, conditions of 704
priority of choice over character 571
relation between subjects and objects 38–43
senses in which used 36
subjective view 40
task 197
theory of
active 40
Anglo-American criminal law, in 43–5
communitarian 39
consistent 41
content-neutrality 32
moral 32
parts of 35
passive 38–9
personhood, of 35
property law, not found in 34
subtheories 35
variables 43
theory of criminal law, relevance to 36
true excuses 43
unconscious, function of 449
wrongdoing and culpability, conjunction of 36
retributivism
agent-relative 156
alternative explanation of attitude 178
ambiguities 153
back door argument for 103
balance, restoration of 757
burden of proof 174
case against 110–27
categorical duty to punish 157
classical liberalism, case against 659–61
closet, meaning 83
coherence theories of justification 108
coherence with other moral beliefs 139
commitment to 105
conditions of wrongdoing and culpability, satisfaction of 112
consequentialist versus deontological nature of 155–9,161
culpability triggering 416
defensive function 178
denunciatory theories, confusion with 90
desert
condition of 154
content of 205–6
epistemically justified belief 201
harm, effect of 202
just 207
justification by 191
meaning 167–8
moral property of relevance to punishment, as, 180
objection to reaction 177
reason for punishing, as 173
seriousness of harm 204
unity of principle 171
wrongdoing 168
distributive justice theories 107–8
emotions motivating judgments 144
envy and jealousy as basis of 122–3
(p.
847
)
formal justice theories, confusion with 90
general principle of fairness, following from 107
good, not doing 110–12
guilt, relationship with 123
guilty, punishment of 155
irrationality 115–19
justice, achievement of 149–52
justification 104–10
conceptual claim 159
ethical 161
fairness 179
legal claim 159
moral claim 160–5
non-foundationalist view of 161
legality 151
malicious or spiteful hatred as basis of 118
moral illusions 128
moral justification
circularity 165–8
critical reconsideration of 165–87
culpable wrongdoing, punishment of 166
emotions, reliance on 181–4
explanationalism 176
generalizations 169–75
own sentiments, principles as coherent expression of 175–80
particular judgements, by 159–65
rationalist view of 169
reach of principle 184–7
subjectivity 175–80
moral scepticism 113
moral wrongs, attitude to 760
narrow view of 71
no good coming of punishment, effect of 155
objectivist explanations 178–9
obligation to punish 154
officials, permission to punish by 154
particular measure of punishment, identification with 88
paternalistic 757–8
positive arguments for 106
preferences satisfied by 89
primary norms of morality 415
private violence, prevention of 90
punishment institutions, justification of 154–5
punishment, justification of 153
reductio ad absurdum argument against 187
regime presupposed by 186
reluctance as to 106
repayment and compensation, making 209
responsibility 113
ressentiment, emotions of 164
resurgence of theory 83
retributive hatred 144
retributivist views 88
rights, idea of 172
satisfaction of 416
scoring mentality 124–5
secondary duties 171–2
self-deception and hypocrisy accompanying 123
straightforward theory of 91
sufficiency of conditions 173–4
theories joined by 104
theory of 92
truth, explanatory work of 109
ubiquitous guilt, theory of 114
unworthy impulses of 163
urge for 125–6
revenge
psychology of 118–20
Schafer, Roy 429–31
self-evidence
principle of 220–4
sexuality
theories of 423
Smith, Jeremiah 359
somnambulism
desire-responsive behaviour, as 300
guilt for action during 306
lack of consciousness, effect of 306–7
means, conflicting 309
purposive 298–9
reasons, action having 299
volitional causation 301
volitions, lack of 303
waking-walking, shared goals and desires with 303
soul
subdivisions of 441
strict liability crime
pure 246
suicide
right to 763
terrorism
law, beyond 730
tort
areas of 19
community’s welfare, enhancement of 7
corrective justice, as 20
corrective justice theory 111
existing doctrine, description of 10
intention in 471–2
liberal, notion of causation 338
necessity, defence of 672
proximate cause cases 365–6
theories of
corrective justice 6
distributive justice 7
negligence 5–7
retributive justice 6
utilitarian 6–7
unexercised capacity, culpability of 418
torture
absolutist view 686–8
balance of evils 724–6
generally culpable, prepaid punishment of 717–19
information, to obtain 715–16
innocents, of 733–4
justificatory intent 725
law meaning what it says 734–6
legal, limits of 735
legal regulation 730–1
limits on consequential calculation applied to 705–6
morally justified 682
necessity, justification under defence of 672–726
permissible, subject beyond 731
retaliation, in 726
rule-consequentialist moral theories 684–6
self-defence 714–15
state agency, by 671
unconscious
aggregation of mental states, as 422
conceptions of 422–7
dynamic 425–6
extended memory 425
Freud, senses distinguished by 422
intentionality 449
mental and subpersonal states, line between 448
mental states, manifestation of 445
metapsychological concepts of 430
metapsychological theories of Freud, status of 421
mind and body, alleged chasm between 427–47
notion of 421
primary process thinking 438
property of actions, as 431
theory-laden 425
utilitarianism
act-consequentialism 681
first principle of morals 219
(p.
849
)
indirect 644
restricted 643–4
theory of punishment 754
volitions
analyses, in 309–11
awareness of 305
behaviour caused by 298
explanations of behaviour, in 311–18
figments, as 310
intention, as species of 314
lack of 303
liability, requirement for 315–18
motion-guiding states 449
phenonenological objection 318
substitutes for 312
unconscious intentions, as 304
Williams, Glanville 457
Wright, Richard 341–3
wrongdoing
acceptable limits 52
action, of 45–50
actual world, in 405
actus reus, requirements of 46
amount of 193
amount of deserved punishment 225–9
bad will, with 195
causation see causation
choice of 232–3
compassion for wrongdoer 142
conditions, satisfaction of 112
construction of 168
culpable, responsibility for 45
desert-base, as 192
elements of 45
excuses for 142
independent need for 193
independently mattering 232–3
justification, issue of 670
lack of, effect 193
luck, involvement of 213
moral term, as 227
norms of 405–6
one’s own successful, guilt feelings for 230–2
overall deserts, mattering to 218–46
responsibility, as element of 45–55
rights-infringement, and 334
strict liability crimes 246–7
successful, resentment of 229–30
sympathy, factors creating 544–6
theory of action central to 251–2
(p.
850
)