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WDW365 Reading Summaries.docx

by OneClass5283 , Fall 2011
14 Pages
149 Views
Fall 2011

Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
William Watson

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ESSAY TOPIC: INSANITY
Should the determination of the criminal responsibility of defendants thought to be mentally disordered be based
entirely on a psychological view of the mind?
Psychological Model:
-habits by inner workings of the mind, run by subconscious mechanisms
-explanation through conditioning instead of reason
-cannot blame reason for action, so not responsible
-deterministic
READING 1: Construction of Responsibility in the Criminal Law
-all human behaviour can be understood from two perspectives
1. Objective in nature; holds that conduct is always the product of some matrix of causal factors that necessarily
determines choice
2. Participant Perspective; great bulk of human activity as having been produced through the agency of an individual’s
free will this is generally given voice in the criminal law
-both perspectives can plausibly explain alcoholic or addictive behaviour
-a key element in the construction of individual responsibility and a key feature of excuse theory generally, is the
criminal law’s stylized treatment of the human capacity for practical reasoning
-the process of practical reasoning through which decision is reached is fully determined by factors beyond the
autonomous control of the actor
-conduct in this respect can be simultaneously described as determined and free
-if the actor can be said to have engaged in a process of practical reasoning, responsibility ordinarily will be assigned
-if the actor was unable in a meaningful fashion to engage in decision making and reasoning, it is likely that responsibility
will not be assigned
-occasional requests for recognition of a loss-of-control excuse offers an unusual approach to study the criminal law’s
ideological functioning
-jurisprudence that holds that conduct is blameworthy only when it is the product of the actor’s free will
-debate over compatibility or incompatibility of free will and universal causation
-unmask an essential coexistence of intentionalism and determinism in the criminal law
Competing Models of Addiction
-correspond to competing theories of responsibility are presented to illustrate the fundamental incompatibility of
medical and legal notions of human behaviour
-the legal system manages the intentionalism/determinism conflict by submerging the causal roots of conduct in a
thoroughgoing intentionalist account; medical profession is governed instead by the determinist perspective
-those concerned about preserving the integrity of the criminal justice system would emphasize the public health
aspects of the addiction problem, and so setting it to be dominated by determinist ideology
-proposal to seek a recharacterization of drug and alcohol addiction as a medical problem represents a shift from
questions of liability to questions of criminalization
-tradition among criminal law theorists to separate out the process of defining the scope of the criminal law from the
process of defining the essential characteristics of criminal responsibility
-instead focus on problems with respect to enforcement, discrimination, misallocation of resources and system
legitimacy
FOCUS: the current policy of relying upon criminal law enforcement as the primary means for dealing with substance
abuse has been largely ineffective
-in the short run, a revised policy of partial decriminalization will serve the interests of those suffering from drug and
alcohol addiction
-in the long run, renewed attention to the matter of criminalization may be necessary to preserve the institution
Intentionalism and Determinism
-freedom of action may exist without freedom of choice and freedom of choice may exist without freedom of action
-freedom that is morally significant is the freedom to act according to one’s own desires
-the distinction between the prescriptive form of determinism (compulsion) and descriptive form (causation) is
important because it makes it possible to hold human actors responsible for their conduct without regard to whether
their choices were caused by factors beyond their control
-for purposes of figuring moral responsibility, the relevant question is whether an actor is the author of his or her own
conduct such that his or her choices fairly can be attributed to his or her ongoing character
Harry Frankfurt argues human beings like most other animals have desires and motives, and are able to make choices
that frequently satisfy these first order desires
-moral responsibility does not require freedom of the will, rather all that is required is the ability to act freely or the
ability to act according to one’s second-order volition
-problem of assigning moral responsibility under Watson’s analysis is what an agent desires may be different from that
which he or she values, and that which he or she values most may be other than what he or she ultimately is moved to
seek
-as the divergence between an actor’s wants and values grows, responsibility lessens, and as the two systems converge,
responsibility increases
-the uniquely personal characteristic of the human self within the decisional process is identified as that mass of
attitudes and values that provides reasons for one’s actions
-the difficulty facing the causal theorist is that traditional principles of responsibility seem incompatible with the fairly
plausible notion of universal causation
-behaviour that is the product of an unbroken chain of prior causes is still attributable to the person of the human actor,
so long as the filter of an autonomous mental process is in place
-human autonomy exists because it is a social necessity and because people share the subjective experience of its
operation, not because it can be shown to exist as some sort of pre-social reality
-people regularly see themselves and others from two competing vantage points: the participant and the objective
-employing the participant perspective, people unproblematically assign praise and blame to their own acts and the
conduct of others, because they understand human agents as autonomous decision makers
-ordinarily, the criminal law adopts Strawson’s participant perspective when evaluating the responsibility of a given
defendant
-Moore; argues that causal theories of excuse should be rejected because they fail to account accurately for excuse
doctrine as it exists within the criminal law
-Moore’s thesis is that a causal theory of excuse cannot be reconciled as a matter of logic with the reality of determinism
-determinist premise, that all human conduct is the product of causal forces beyond the actor’s control
-the moral version of the causal theory of excuse; requires that blame be withheld when conduct is caused by factors
outside of the scope of an actor’s freewill
-Moore states a theory of punishment under which moral culpability is a necessary condition for legal liability
-no conduct can ever be legally punishable, concluding these three steps
-he claims one must look beyond simple causal accounts in order to identify those features that make human actors
responsible moral agents
-he asserts that it is the opportunity and ability to engage in practical reasoning that renders one subject to blame and
praise, punishment and reward
-he argues that people regularly assign praise and blame to conduct known to have been caused by forces beyond the
control of the actor
-the causal theory does not seem to be the best explanation for our strong exculpatory impulses
-Moore’s analysis seems to be that the choice is absolute: if the actor was possessed of the opportunity and capacity for
practical reasoning, then he or she was a responsible agent; if the actor was denied the opportunity to reason or was
incapable of so doing, then responsibility may not be assigned
-Moore suggests that such sympathy is suspect because it is asymmetrical; people rarely feel sympathy for offenders
whose conduct was caused by a privileged upbringing
-in some essential respect, we understand that these actors could not have done otherwise, given the extreme social
deprivation which has shaped their decision-making process
-at the same time, we hold them responsible for their actions because we believe that they have exercised choice and
have directed their conduct according to formed preferences
-statements, propositions or systems of ideas have not become invested with meaning until after they are placed within
a social context
-we must be willing to agree that human actors deserve the conditions which determine their choices
-experience of blaming requires that we understand human choices to be truly autonomous, in the sense that they are
free from the determining force of factors beyond the control of the agent
-if human conduct is simultaneously caused and the product of an autonomous free will, our occasional shift from the
participant to the objective viewpoint ought to be predictable according to some factor or factors which we can identify
in advance
-the key element of Moore’s theory, a judgement with respect to the offender’s opportunity and capacity to engage in
practical reasoning is the very factor that determines on which side of the dualist divide a given case will reside
-dualism, then, allows the causal theorist to avoid Moore’s argument by describing human conduct as simultaneously
free and determined
-the near universal practice of blaming or praising the conduct of individual human actors is fundamental in
distinguishing people from objects and other animals
-the legal doctrines of actus reus and mens rea, together with the rules governing the excuses, constitute the
institutional mechanism by which individual cases are allocated to one side of the dualist divide or the other
-earlier the claim was made that a loss-of-control defence for chemically-dependent defendants has been unsuccessful
in the courts because its acceptance would have imposed a determinist account upon a fundamentally intentionalist
system. Subsequently, the claim was made that the policy of treating drug possession, public intoxication, and the like as
crimes has had a similar effect: that of undermining the criminal justice system’s capacity to articulate an intentionalist
ideology
READING 2: The Relevance of Philosophy to Law and Psychiatry
-book deals with the relationship between the disciplines of law and psychiatry
-it seeks to defend two overall theses, one methodological and the other substantive
Methodological neither lawyers nor psychiatrics have been philosophical enough and that the relationship between
the disciplines needs to be rethought in light of some greater philosophical understanding
-a prominent example is provided by the century-old debate between psychiatrists and lawyers about determinism and
responsibility
-psychiatry is often painted as a scientific, deterministic world view that leaves no room for free will and responsibility,
while law is often painted as a system of thought that takes free will as its unquestionable first postulate
-the methodological thesis; such presuppositions have to do with the meaning of free will, the relation of determinism
to excuses in both law and morals, and the extent to which any theory of the mind and person must be committed to an
idea of personal freedom
-psychiatry presupposes free will no less than does the law, and the law presupposes causation of behaviour no less
than does psychiatry
-these presuppositions of law and psychiatry have to do with the mind and mental states
-because a theory of the mind is the most essential ingredient to any theory of the person, such presuppositions also
have to do with the idea of a person
-the legal theory of mind uses concepts such as voluntariness, intention, desire, motivation
-the legal and psychiatric views of minds and persons do not contradict one another
-the thesis is that if lawyers and psychiatrists would but look they would see that nothing in the psychiatric view of a
person contradicts the law’s presupposition that a person is an autonomous and rational agent (philosophically)
-inconsistency between law and psychiatry is invalid
-the first of these steps is to examine the basic scheme of explanation of the actions of person in ordinary thought and
the social sciences
-second step is to delineate the legal theory of persons as one in which practical reason is centred
-one can get at this legal theory of persons by examining two broad legal contexts in which the concept of a person
appears: legal persons are the appropriate agents both to be assigned various kinds of legal responsibility and to be the
holders of various types of legal rights
-two theories: first, a moral theory that tells us under what conditions it is fair to ascribe responsibility to another and
under what conditions it is right to ascribe rights to another; second, these moral theories should themselves be seen as
being underlain by a metaphysical theory of what sort of being a person must be to be a moral agent, and thus, a legal
person

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Description
ESSAY TOPIC INSANITYShould the determination of the criminal responsibility of defendants thought to be mentally disordered be based entirely on a psychological view of the mindPsychological Model habits by inner workings of the mind run by subconscious mechanisms explanation through conditioning instead of reason cannot blame reason for action so not responsible deterministicREADING 1 Construction of Responsibility in the Criminal Law all human behaviour can be understood from two perspectives 1 Objective in nature holds that conduct is always the product of some matrix of causal factors that necessarily determines choice 2 Participant Perspective great bulk of human activity as having been produced through the agency of an individuals free willthis is generally given voice in the criminal law both perspectives can plausibly explain alcoholic or addictive behaviour a key element in the construction of individual responsibility and a key feature of excuse theory generally is the criminal laws stylized treatment of the human capacity for practical reasoningthe process of practical reasoning through which decision is reached is fully determined by factors beyond the autonomous control of the actor conduct in this respect can be simultaneously described as determined and free if the actor can be said to have engaged in a process of practical reasoning responsibility ordinarily will be assigned if the actor was unable in a meaningful fashion to engage in decision making and reasoning it is likely that responsibility will not be assigned occasional requests for recognition of a lossofcontrol excuse offers an unusual approach to study the criminal laws ideological functioning jurisprudence that holds that conduct is blameworthy only when it is the product of the actors free willdebate over compatibility or incompatibility of free will and universal causation unmask an essential coexistence of intentionalism and determinismin the criminal law Competing Models of Addiction correspond to competing theories of responsibility are presented to illustrate the fundamental incompatibility of medical and legal notions of human behaviour the legal system manages the intentionalismdeterminism conflict by submerging the causal roots of conduct in a thoroughgoing intentionalist account medical profession is governed instead by the determinist perspective those concerned about preserving the integrity of the criminal justice system would emphasize the public health aspects of the addiction problem and so setting it to be dominated by determinist ideology proposal to seek a recharacterization of drug and alcohol addiction as a medical problem represents a shift from questions of liability to questions of criminalization tradition among criminal law theorists to separate out the process of defining the scope of the criminal law from the process of defining the essential characteristics of criminal responsibility instead focus on problems with respect to enforcement discrimination misallocation of resources and system legitimacyFOCUS the current policy of relying upon criminal law enforcement as the primary means for dealing with substance abuse has been largely ineffective in the short run a revised policy of partial decriminalization will serve the interests of those suffering from drug and alcohol addiction in the long run renewed attention to the matter of criminalization may be necessary to preserve the institutionIntentionalism and Determinism freedom of action may exist without freedom of choice and freedom of choice may exist without freedom of action freedom that is morally significant is the freedom to act according to ones own desires the distinction between the prescriptive form of determinism compulsion and descriptive form causation is important because it makes it possible to hold human actors responsible for their conduct without regard to whether their choices were caused by factors beyond their control for purposes of figuring moral responsibility the relevant question is whether an actor is the author of his or her own conduct such that his or her choices fairly can be attributed to his or her ongoing character Harry Frankfurt argueshuman beings like most other animals have desires and motives and are able to make choices that frequently satisfy these first order desires moral responsibility does not require freedom of the will rather all that is required is the ability to act freely or the ability to act according to ones secondorder volition problem of assigning moral responsibility under Watsons analysis is what an agent desires may be different from that which he or she values and that which he or she values most may be other than what he or she ultimately is moved to seek as the divergence between an actors wants and values grows responsibility lessens and as the two systems converge responsibility increases the uniquely personal characteristic of the human self within the decisional process is identified as that mass of attitudes and values that provides reasons for ones actions the difficulty facing the causal theorist is that traditional principles of responsibility seem incompatible with the fairly plausible notion of universal causation behaviour that is the product of an unbroken chain of prior causes is still attributable to the person of the human actor so long as the filter of an autonomous mental process is in place human autonomy exists because it is a social necessity and because people share the subjective experience of its operation not because it can be shown to exist as some sort of presocial reality people regularly see themselves and others from two competing vantage points the participant and the objective employing the participant perspective people unproblematically assign praise and blame to their own acts and the conduct of others because they understand human agents as autonomous decision makers ordinarily the criminal law adopts Strawsons participant perspective when evaluating the responsibility of a given defendant Moore argues that causal theories of excuse should be rejected because they fail to account accurately for excuse doctrine as it exists within the criminal law Moores thesis is that a causal theory of excuse cannot be reconciled as a matter of logic with the reality of determinism determinist premise that all human conduct is the product of causal forces beyond the actors control the moral version of the causal theory of excuse requires that blame be withheld when conduct is caused by factors outside of the scope of an actors freewill Moore states a theory of punishment under which moral culpability is a necessary condition for legal liability no conduct can ever be legally punishable concluding these three steps he claims one must look beyond simple causal accounts in order to identify those features that make human actors responsible moral agents he asserts that it is the opportunity and ability to engage in practical reasoning that renders one subject to blame and praise punishment and reward he argues that people regularly assign praise and blame to conduct known to have been caused by forces beyond the control of the actor the causal theory does not seem to be the best explanation for our strong exculpatory impulses Moores analysis seems to be that the choice is absolute if the actor was possessed of the opportunity and capacity for practical reasoning then he or she was a responsible agent if the actor was denied the opportunity to reason or was incapable of so doing then responsibility may not be assigned Moore suggests that such sympathy is suspect because it is asymmetrical people rarely feel sympathy for offenders whose conduct was caused by a privileged upbringing in some essential respect we understand that these actors could not have done otherwise given the extreme social deprivation which has shaped their decisionmaking process at the same time we hold them responsible for their actions because we believe that they have exercised choice and have directed their conduct according to formed preferences statements propositions or systems of ideas have not become invested with meaning until after they are placed within a social context
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