Marcia Baron

This chapter explores two matters only briefly touched on in earlier work: for purposes of clarity, in her “Manipulativeness,” Baron took a stand on whether manipulation requires intent and whether “manipulative” is best understood as allowing for the possibility that the quality or action described as manipulative is unobjectionable. This chapter revisits both issues, and explores in more detail what it means to say that manipulation requires intent. It argues that manipulation does require intent (though the intent need not be conscious); laying out and discussing various positions one might take on the moral status of manipulation, the chapter explores the possibility that (contrary to what appears in “Manipulativeness”) “manipulative” is not best understood as a moralized term and that manipulating another person is sometimes morally unobjectionable.

One controversial issue in Kant’s ethics is whether his view can allow for the category of the supererogatory. In “Kant on Imperfect Duties and Supererogation,” Hill argues that Kant’s ethics can recognize this moral category as a sub-class of actions that fulfil imperfect duties, and he provides list of characteristics a supererogatory action would likely have if such acts have a place in Kant’s ethics. This chapter defends in some detail the view that Kant’s ethics does have the resources to do justice to most of the characteristics philosophers typically associate with supererogatory actions. However, the chapter also raises objections to Hill’s view about the best way to characterize supererogation within the Kantian framework, and disagrees with Hill that Kant’s ethics has a place for the category of the supererogatory so understood.

Since Kant, there has been tremendous uneasiness about the role that the sense of duty should play in moral agency. Doubt over the grounding of the moral ought has contributed to the unease, spawning a project to de-Kantianize ethics by ridding it of the moral ought and of the correlative conception of moral agency. ;The theory which emerges after such radical surgery has never been worked out, much less subjected to close scrutiny. My dissertation develops and assesses this de-Kantianized system which, following Frankena, I call an ethics of virtue. An ethics of virtue holds that a person who does what is right because he wants to is virtuous, and being virtuous, is perfectly moral. ;One chapter of my thesis is devoted to Philippa Foot's ethics of virtue. I argue that her virtuous person is not a moral agent at all. He has moral ends but no perspective of self-interest. Morality and agency are thrown into conflict. To qualify as an agent, one must be able to distance oneself from one's first-order ends. Foot's agent can do this only from the standpoint of self-interest; and to evaluate one's ends from this standpoint is, as Foot recognizes, not to act morally. Unable to rank his ends, he can neither determine what to do in a situation in which he wants to pursue two conflicting ends, nor be alert to the possibility that he is pursuing a particular end to excess. ;This problem in Foot's view could be avoided by ethics of virtue in which the virtues are unified, thereby enabling the agent to appraise his conduct by asking whether the conduct in question best promotes his ultimate end. But, I argue, the agent would still be morally deficient because he never questions whether he really ought to act as his ultimate end directs him. In short, since he does what is right because he wants to, never asking whether he should want the things that he does want, he cannot distinguish between wanting and valuing. This very serious difficulty is inevitable. ;The omission of the sense of duty is catastrophic because it destroys the possibility of self-governance and self-legislation. What are we left with? A broad spectrum of ethics of duty. In my final chapter I discuss the alleged moral repugnance of acting from duty and indicate which types of ethics of duty steer clear of the objectionable features of acting from duty.

Moral responsibility is a prerequisite for culpability. One can be morally responsible for φing without being culpable for it, but not vice versa. I agree with Andrew Simester on this, and agree that it is important to differentiate moral responsibility from culpability. That moral responsibility is a prerequisite for culpability is often taken to require sharply distinguishing excuses from what are called ‘exemptions’ (or to use the term Simester uses, ‘irresponsibility defences’) and treating exemptions as forming a category of their own. I am not convinced that it does. In previous work, I have gone against the prevailing view by understanding the category of excuses to include what, on that view, are classified as exemptions. In this paper I reconsider this, delving deeper into the matter than I have in the past and drawing on Simester’s magisterial Fundamentals of Criminal Law to do so. I challenge the position that exemptions form a category of their own, distinct from excuses, and that infancy and insanity need to be understood as exemptions and not excuses. I argue that the category of exemptions, or “irresponsibility defenses,” is problematic, and that recognizing the distinction between culpability and moral responsibility and recognizing its importance does not commit one to excluding from the category of excuses infancy and insanity. Infancy and insanity are better seen as operating to exempt the agent altogether from moral responsibility only at the limit; more often, they operate to excuse, partially or fully.

This chapter describes Card's characterization as an idealization that captures why hate crime legislation seems (at least prima facie) to be a very good idea. The rationale for enhanced penalties is far more compelling if hate crimes are characterized as Card characterizes them. She focuses on hate crimes that are motivated by hatred. Hate crimes today should be viewed as part of an ongoing campaign of intimidation. Card is of course well aware of the position that the legal category of hate crimes and enhanced penalties for hate crimes are called for to counter the message sent by hate crimes; in fact she notes that she was initially "attracted to the idea of penalty enhancement legislation for hate crimes as a way to send a strong social message against racism, sexism, anti‐Semitism, and homophobia".

This chapter defends the position that the imminence requirement should be jettisoned. What matters is that it was necessary to use self‐defensive force against an aggressor. Imminence is important evidentially: it helps us answer the question of necessity. The imminence requirement should be replaced with a necessity requirement, probably with the stipulation of a rebuttable presumption that the necessity requirement is not met if the danger was not imminent. The chapter defends this position against arguments by Dressler and Ferzan in support of retaining the imminence requirement; the chapter also tries to figure out why the obvious fact that imminence does not entail necessity has been overlooked, or ignored.

It is widely agreed that the top three Model Penal Code culpability levels suffice for criminal liability, but the fourth is controversial. And it isn’t just the particular MPC wording; that negligence should be on the list at all is controversial. My question is: What makes negligence so different? What is it about negligence that gives rise to the view that it should not suffice for criminal liability? In addressing it, I draw attention to how we conduct the debate, and how our framing of the issues is shaping it. My hope is to prompt thought and discussion on just what we want the element of mens rea to provide, and to draw attention to background assumptions that shape our views of what it should take for negligence to count as a species of mens rea.