R. A. Duff

I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in the idea of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws.

Jerome Bickenbach has provided a fair and sympathetic account of my argument in Trials and Punishments, and has clarified some of the book’s obscurities - for which I am very grateful: I will focus my response on his main objection to my account of punishment, since I am not persuaded that the objection holds.Bickenbach argues that my ideal account of what punishment ought to be if it is to be adequately justified would actually show, if it succeeds, that criminal punishment cannot be justified at all. ‘Criminal punishment, it would appear, is unjustifiable when it is needed, but justifiable only if it is no longer required’. It would be justifiable if it was imposed on a criminal who shared the values embodied in the laws of the true community to which she belonged: but it would then be unnecessary, since in such cases ‘blame alone’ would suffice for the communicative and persuasive purposes which punishment should ideally serve. It would be necessary if the criminal was a committed nonconformist who rejected the community’s values: but it would then be unjustifiable, since in such cases it could not serve the purposes which punishment should ideally serve.

Most people who write about punishment ask, Why may we punish the guilty? I want to ask, Why should the guilty put up with it? or, more specifically, To what extent does a person guilty of an offense have a duty to submit to punishment? ;This question forms the topic of the thesis. The work is divided into two parts, of three chapters each. In Part 1, I argue for the importance of the question. In Part 2, I try to answer the question. ;In Chapter 1, I argue for the claim that the question of submission to punishment is in fact the central question of the theory of punishment. This being conceded, I argue in chapters 2 and 3 that we must consequently change our conception of punishment. We cannot define 'punishment' in the traditional way, as necessarily involving pain, suffering, or other sorts of disvalue ; rather, 'punishment' is to be defined by the justificatory connection between punishment and offense. ;In Chapter 4, I develop what I call the rectificatory theory of punishment. This theory views some punishments as required in order to maintain the equality of basic liberties: people who commit certain offenses thereby arrogate excess basic liberties, and must by way of punishment give up an equivalent body of liberties. In Chapter 5, I incorporate the rectificatory theory into a more general theory of punishment, a theory derived from John Rawls's version of the social contract. I argue there that punishment derives from the social contract in three distinct ways: by literal application, by reinterpretation, and by repudiation. Finally, in Chapter 6, I argue that this theory of punishment requires us to look at the contract in a certain way: the contract establishes a relationship of fraternity among the parties, not merely as a pleasant after-effect, but as something essential to the contract.

Philosophers have often claimed that the requirements of morality have an absolute and categorical status. Other values may be relative to the agent's ends, other imperatives hypothetical on his desires: their requirements must be justified by relating the action enjoined to the attainment of those ends or desires, and can be avoided by being shown to be incompatible with them. But the requirements of morality bind us whatever our ends or desires might be: they are not to be justified by reference to anything beyond themselves; they cannot be avoided by being shown to be incompatatible with our existing purposes. Other values and imperatives may be determined—be given their status as values or imperatives—by our own prior purposes and desires: but those of morality themselves determine which purposes or desires we may or may not pursue. For convenient reference I label this the Absolutist view.

I discuss a significant distinction between two different applications of the principle of double effect. It serves sometimes to distinguish the intended effects of an action from side-Effects which are "relevant" to it, As providing reasons against it, For which the agent must admit responsibility, And of which he is the intentional agent; and sometimes to distinguish intended effects from side-Effects which are "irrelevant" to the action, As to which the agent denies responsibility and intentional agency.

In lieu of an abstract, here is a brief excerpt of the content:Commentary on “Psychopathy, Other-Regarding Moral Beliefs, and Responsibility”R. A. Duff (bio)AbstractI make four criticisms of Fields’s account of one type of psychopathy as a responsibility-negating personality disorder which involves an incapacity to form other-regarding moral beliefs. First, his account of what it is to hold moral beliefs (in terms of accepting universal practical principles) actually specifies neither a necessary, nor a sufficient, condition for holding a moral belief. Second, he is too quick to dismiss the suggestion that what psychopaths suffer from is an inability to understand moral concepts and values. Third, he does not show why we should ascribe an incapacity to accept moral beliefs to the psychopath, rather than a culpable failure to do so. Fourth, he suggests too weak a criterion of criminal liability, as requiring only the capacity to act for prudential reasons.KeywordsMoral beliefs, moral understanding, incapacity, criminal liabilityFields argues that we can properly count at least one type of psychopathy as a personality disorder which negates moral responsibility. This is not because, as others have argued, such psychopaths cannot understand moral concepts and moral values, but because they suffer an incapacity to form other-regarding moral beliefs, i. e., to accept practical moral principles; we cannot hold them morally responsible for failing to accept or obey moral principles which they lack the capacity to accept. Nor, he also argues, should we hold them criminally liable, since they lack that capacity to act for prudential reasons to which a deterrent system of law appeals.His paper rightly emphasizes the interdependence of psychiatry and philosophy, in this as in other contexts. A psychiatric account of psychopathy as a disorder involving some kind of moral incapacity must depend for its precise sense on an adequate account of the concepts of moral capacity and incapacity: an account which should draw on the resources of moral philosophy. Philosophers who aim to understand those concepts will do well to attend, as Fields does attend, to psychiatric discussions and case histories: not only because this is necessary if their comments on mental disorder or on psychopathy are to be adequately informed, but also because careful attention to the problematic phenomena of mental disorder can also illuminate our understanding of the rational powers and capacities which are lacking or distorted in the disordered, and which philosophers hope to analyze. Fields is also clearly right to emphasize that the criteria of moral responsibility might not be the same as the appropriate [End Page 283] criteria of criminal liability: that the question of whether psychopaths should be criminally liable cannot necessarily be answered simply by determining whether they are morally responsible.However, I do not think that he has provided an adequate account of psychopathy as a personality disorder which negates moral responsibility and criminal liability. I will comment on four aspects of his discussion.First, as Fields recognizes, one who wants to argue that psychopaths lack the capacity to form moral beliefs owes us an account of what it is to form, or hold, a moral belief. Fields’s account is familiar, but arguable. To hold a moral belief is to accept, and to be motivated by, a universal practical principle: a principle which one regards as providing very strong reasons for action, and breaches of which arouse such responses as (third-person) disapproval or (first-person) guilt. It could be plausibly objected, however, that accepting some universal practical principle is neither a necessary nor a sufficient condition for holding a moral belief.It is not a sufficient condition, partly because not any universal practical principle which an agent treats as being important can intelligibly count as a moral principle. The principle “One should never split an infinitive” cannot, by itself, count as a moral principle; and if someone treated it as if it were a moral principle, we would judge his moral understanding, and his rational capacities, to be seriously impaired. This suggests that a purely formal account of the “moral,” like Fields’s (an account that pays no attention to the content of what could count as a moral principle) cannot be adequate (see Foot 1978). A further, related reason for the...