WDW365 test 1 Study Notes.docx

81 views5 pages
19 Apr 2012
Richard Boldt The Construction of Responsibility in the Criminal Law
FOCUS: Chemically dependent actors should not be responsible for their actions, and criminal law must become more dualist
TOPIC A Perspectives in the Criminal Law
1. All human understanding can be understood from two perspectives
Objective Perspective conduct is always the product of some matrix of causal factors that necessary determines choice
Participant Perspective regards the great bulk of human activity as having been produced through the agency of an
individual’s free will
2. The Participant Perspective is generally given voice in the criminal law
TOPIC B Dualist Approach to Freewill
1. Criticism of the Justice System stylized treatment of the human capacity for practical reasoning
process of practical reasoning is when alternative courses of conduct are weighed and decisions are reached
this process is fully determined by causal factors beyond the autonomous control of the actor
it is said that this process also occurs within the actor, and so the actor is the author of these decisions
SO: it is in this respect that conduct can be described both as determined and free
BUT: this dualist theory is not sufficient for ascribing criminal responsibility
2. If the actor can be said to have engaged in practical reasoning, responsibility will ordinarily be assigned, and those causal
factors beyond the actor’s control will be forgotten
3. If the actor can’t be said to have engaged in practical reasoning, responsibility will not be assigned, and the deterministic causal
factors will remain visible
SO: jurisprudence holds that conduct is blameworthy only when it is the product of the actor’s freewill
NOTE Hume: ‘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’
TOPIC C Criminal Law and Strawson Approach
1. The criminal law adopts Strawson’s participant perspective when evaluating the responsibility of a given defendant
People regularly see themselves from two competing vantage points: participant and objective
Participant Perspective people easily assign praise and blame to their own acts and the conduct of others, because they
understand human agents as autonomous decision makers
Objective Perspective people refuse to ascribe criminal responsibility, recognizing the non-autonomous history and circumstance
which go to make up the deterministic account
NOTE Strawson: humans are to a very large extent social and socially constructed beings whose personhood is influenced by the
kind of society in which they live
-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
TOPIC D On Moore’s Arguments
1. 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
1. All human conduct is the product of causal factors beyond the actor’s free will
2. Blame must be withheld when conduct is caused by factors outside the scope of an actor’s free will
3. Responsibility cannot be assigned unless the actor is morally culpable and blameable
SO: no conduct can ever be legally punishable under the determinist perspective
THUS: it is the opportunity and ability to engage in practical reasoning that renders one subject to blame and praise
-if the actor was possessed of the opportunity and capacity for practical reasoning, he or she was a responsible agent; if the actor
was denied the opportunity to reason or was incapable of doing so, then responsibility may not be assigned
-blaming requires that we understand human choices to be truly autonomous, in the sense that they are free from the determining
force of causal factors beyond the agent’s control or free will
-dualism allows us to avoid Moore’s argument by describing human conduct as simultaneously free and determined
-cases often fail that really were loss of control cases because the system cannot reconcile intentionalism with determinism
Unlock document

This preview shows pages 1-2 of the document.
Unlock all 5 pages and 3 million more documents.

Already have an account? Log in
Michael Moore The Relevance of Philosophy to Law and Psychiatry
FOCUS: psychiatry is determinist, legal system is intentionalist and so law and psychiatry are thought to have nothing in common;
but if we re-examine both areas, they are shown to be compatible
TOPIC A - Problems posed to law by psychiatry
BOTH law and psychiatry systems of thought that possess theories about minds and persons these views are not in contradiction
nothing in the psychiatric view of persons contradicts the law’s presupposition that a person is an autonomous, rational agent
PROBLEM psychiatry poses to law:
1. All of us are a bit crazy
-legal definition must be guided by the law’s purpose for defining the phrase so, e.g. assigning responsibility, treatment options
SO - the purpose for which the criminal law does and should define mental illness is for the retributive process of giving just desserts
-all bad behaviour cannot be labeled as mentally ill behaviour
2. We cannot control the unconscious
Competing theories unconscious accidents are illusions vs. unconscious accidents are truly intentional and so blameable
-if unconscious mental states causing us to choose is a valid excuse, then we must everywhere be excused
SO: the unconscious cannot provide some general excuse from responsibility, no matter how much it may cause us to think and
behave as we do
3. None of us are truly unified agents, but are a community of subagents
-people exist as agents with multiple subagents so e.g. a will and a counterwill a conflict producing state and a peace keeping state
BUT: there must be a sense of unified self in the criminal law
ISSUE: psychiatry will move toward medicalization because of advances in pharmacology, and hope that all mental illnesses are
really brain diseases that are curable with drugs Moore argues this is not necessary nor possible
Nothing in the law or in the morality underlying it presupposes that people act outside the laws of causation (freewill) autonomy
means that persons are agents with causal powers, not that the exercise of those powers be uncaused
-psychiatry and law both view persons as agents with irreducible causal powers who act for reasons, and are autonomous, rational
Conclusion law and psychiatry are reconcilable, and thus the differences between intentionalism and determinism may
not be as prominent as we may suppose they are
Unlock document

This preview shows pages 1-2 of the document.
Unlock all 5 pages and 3 million more documents.

Already have an account? Log in

Get access

$10 USD/m
Billed $120 USD annually
Homework Help
Class Notes
Textbook Notes
40 Verified Answers
Study Guides
1 Booster Class