Leora Dahan Katz

Research in the field of heuristics and biases has demonstrated that human reasoning processes are often non-normative. Specifically, such research demonstrates that human reasoning processes often rely upon heuristics and are subject to a wide variety of biases. These, in turn, can lead to errors in judgment which may impact human behavior. This chapter argues that this impact cannot be ignored when dealing with questions of moral and legal responsibility. It argues that when heuristic reasoning has an impact upon human judgment and decision-making, this fact can ultimately negate moral culpability. Furthermore, it argues that where legal responsibility is stipulated upon moral responsibility, the findings of Bias Research must also inform the imposition of legal responsibility. Specifically, it argues that in light of Bias Research, the current reasonable person standard employed in negligence offences is unjustifiable and must be replaced with a standard of responsibility that better reflects individual culpability.

This article analyzes the question of how the size of bribes should impact criminal sanctions. In contrast to the commonly held view that punishment should increase with the size of the bribe, we argue to the contrary: that the punishment of the bribee should decrease with the size of the bribe. Our conclusion is based both on a philosophical argument and an economic argument. We argue that all else being equal, as an agent’s reservation price for selling public interests decreases, the culpability of the agent willing to receive a bribe increases. In addition, from an economic perspective, the expected social harm of an official acting with a low reservation price for bribes is much greater than one acting with a high reservation price: both the susceptibility of being bribed as well as the potential for social harm is much greater when the reservation price is low.

There is a common refrain in the literature on punishment that presumes the mutual exclusivity of defending retribution and adopting a humanistic or welfare-oriented outlook. The refrain, that if we want to be humane, or care about human welfare, we must abandon retributive punishment, anger, and resentment is readily repeated, endorsed, and relied upon. This article suggests that this opposition is false: retribution and welfare-orientation can not only be endorsed concomitantly, but are complimentary projects, and may even be grounded in the same normative basis, such that if we endorse one we are already committed to ideas that ground reason to care about the other.My primary target will be claims that aim to undermine retributivism by demonstrating the desirability of welfare-orientation. If both can live together, demonstrating the attractiveness of one goes nowhere toward displacing the other. Further, establishing this claim invites further inquiry into classic questions about the “barbaric,” or “morally repugnant” credentials of retributivism. Confronting these claims will elucidate the consistency of adopting both retributive and welfare-oriented views, which, I suggest, can be jointly adopted and pursued.

When blame is understood to be emotion-based or affective, its emotional tone is standardly identified as one of anger. We argue that this conception of affective blame is overly restrictive. By attending to cases of blame that emerge against a background of a particular kind of hope invested in others, we identify a blaming response characterized not by anger but by sadness: reactive disappointment. We develop an account of reactive disappointment as affective blame, maintaining that while angry blame and disappointed blame are both condemnatory responses, they have distinct evaluative foci and occupy different but complementary roles in our accountability practices.

This paper offers a response retributive theory of punishment, taking the role of the punisher as well as the relations between the parties to punishment to be central to retributive justification. It proposes that punishment is justified in terms of the ethics of appropriate response, and more precisely, in terms of the duty agents have to dissociate from the devaluation inherent in the culpable wrongdoing of others. The paper demonstrates that on such account, while the harm and suffering involved in punishment are rightly imposed, they are not good, grounding a further duty to mitigate our retributive practices. The result is a moderate vision of retributive justification, which has the resources to justify, not only criminal punishment, but punishment as imposed across a wide variety of relations: private, institutional and political.