Dealing with Wayward Desire

The exercise of synchronic self-control is the way in which an actor can attempt to bring a desire into alignment with his better judgement at the moment and during the interval of time over which, but for the exercise of such self-control, the desire would become the actor’s preponderant desire, which the actor would then translate into an act contrary to his better judgment. The moral psychology of an actor who fails to achieve such self-control can be analyzed in two ways. One way is meant to be consistent with compatibilist metaphysics; the other with libertarian metaphysics. The implications of these analyses for the criminal law are complicated, but perhaps the most important is this: the criminal law should in principle recognize a partial excuse for an actor who exercises synchronic self-control but who gives up his effort because he believes that he can no longer continue to resist. His effort to achieve self-control thus fails, and he ends up translating into action the very desire he set out to control

Agency and Insanity

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory. According to the lost-agency theory, a person lacks a sense of agency when he experiences his mind and body moving but doesn’t experience himself as the author or agent of those movements. The title character in the movie Dr. Strangelove suffered from what’s known as alien hand syndrome. People suffering from this syndrome experience the moving hand as their hand but don’t experience themselves as the author or agent of its movements. The lost-agency theory portrays insanity as alien hand syndrome writ large. The insane actor is like someone possessed by an alien self. He’s not in charge of his mind or body when he commits the crime

The Moral Emotions of the Criminal Law

Imagine you have committed a crime. You might experience any number of emotional responses to what you\u27ve done, ranging from self-satisfaction to self-disgust. But however you do feel, how should you feel? The question seems especially appropriate for a conference honoring Professor Herbert Morris and celebrating his work, for no one has shed light more on the moral emotions of the criminal law. The line of thought that follows owes Professor Morris a large and obvious debt. So, once again, how should you feel when you have committed a criminal wrong? Guilty comes immediately to mind. But guilt is not the only emotion that plays a part in the criminal law. For even though guilt is the right moral emotion for some wrongdoers to experience, guilt can be either moral or nonmoral. Moreover, some wrongdoers should experience not guilt, but shame. Guilty is the right verdict in some cases, but in others the right verdict is shameful. Part II describes the circumstances under which criminal wrongdoers should experience guilt--moral, nonmoral, or both. Part III describes the circumstances under which criminal wrongdoers should experience shame. But what difference does all this make? Why should we care about the moral emotions a wrongdoer experiences in the wake of his wrongdoing? The full answer comes in Part IV

What\u27s Wrong with Involuntary Manslaughter?

Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor\u27s inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk-creation. Instead, I propose that an actor who creates a risk of causing death but who was unaware of that risk can fairly be subject to retributive punishment if he was either non-willfully ignorant or self-deceived, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one\u27s beliefs

Self-Defense and the Mistaken Racist

How should the law respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have so believed if V had been white? Should D be exonerated on grounds of self-defense? Some commentators argue that D\u27s claim of self-defense should be rejected. He should be convicted and punished. I argue, however, that denying D\u27s claim of self-defense would be at odds with the principle that criminal liability and punishment should only be imposed on an actor if he chooses to cause or risk causing a harm when the law does not permit him to make such a choice, and not for possessing or choosing to possess racist or otherwise illiberal beliefs or desires. Moreover, insofar as this principle can fairly be characterized as one to which a liberal state must adhere, then a liberal state should acknowledge D\u27s claim of self-defense