Reid on Favors, Injuries, and the Natural Virtue of Justice

Reid argues that Hume’s claim that justice is an artificial virtue is inconsistent with the fact that gratitude is a natural sentiment. This chapter shows that Reid’s argument succeeds only given a philosophy of mind and action that Hume rejects. Among other things, Reid assumes that one can conceive of one of a pair of contradictories only if one can conceive of the other—a claim that Hume denies. So, in the case of justice, the disagreement between Hume and Reid is, at bottom, a disagreement over their respective conceptions of how the human mind works at its most fundamental level

Attempt, Risk-Creation, and Change of Mind: Reflections on Herzog

Section I very briefly sketches an account of the nature of attempt developed at length elsewhere. The section also explains why, in light of the account of attempt described, Herzog has attempted murder. Section II explains why Herzog ought not to be held guilty of any crime of risk-creation. Section III turns to the question of abandonment and argues that Herzog deserves mitigation in his sentence in light of his change of mind, but does not deserve an affirmative defense

Intoxication, Recklessness, and Negligence

According to what is here called the “Intoxication Recklessness Principle,” a defendant who, thanks to voluntary intoxication, is unaware of a condition of which a reasonable person would have been aware is to be treated as though he were reckless with respect to that condition, rather than negligent. And, according to what is here called the “Intoxication Negligence Principle,” a defendant who is unaware of a condition thanks to voluntary intoxication is to be compared to a sober reasonable person when we ask whether his obliviousness was reasonable. When applied in tandem, as these principles often are, a defendant whose mental state is not criminal at all, considered independently of the recent history of intoxication that gave rise to it, will be treated as though he were reckless. Through a proposed model that illuminates the nature of both recklessness and negligence, this paper identifies a set of conditions under which it is justified to employ the Intoxication Recklessness Principle, even in conjunction with the Intoxication Negligence Principle. When the relevant conditions are met, the voluntarily intoxicated negligent defendant is in a mental state that is just as bad as many reckless defendants. This paper, then, defends the law’s current use of the Intoxication Recklessness Principle, but with qualifications, for in identifying the conditions in which the principle is justifiably employed; conditions are also identified in which it is not

Locke on Consciousness, Personal Identity and the Idea of Duration

It is as undeniable as it is unhelpful to say that for Locke personal identity consists in the identity of consciousness. It is undeniable because he just comes out and says as much in passages like the following: “[T]he same consciousness being preserv’d. . .the personal Identity is preserv’d.” (II.xxvii.13) It is unhelpful, however, for two reasons: First, it is unclear what consciousness is; what portion of a mind’s mental activity at a time is its “consciousness”? Second, even if we knew what, of all the myriad things going on in my mind now is my “consciousness” and we knew what, of all the myriad things that went on in the mind of a child who, in 1976 was forced to wear an embarrassing sailor suit, is his “consciousness”, it would still be unclear what conditions must be satisfied for the two “consciousnesses” to be the same. The simple memory theory of personal identity—the theory according to which later and earlier person-stages are stages of the same person just in case the later can remember the experience of the earlier—tries to solve both problems at once. The theory equates consciousness with any conscious act of awareness and then insists that two acts of awareness are the same in the relevant sense if they have the same content, if they are awarenesses of the very same thing. What makes my “consciousness” and the sailor-suitwearing boy’s the same, on this view, is that we are both aware of the same event, and in the same way

Prevention and Imminence, Pre-Punishment and Actuality

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are conditions under which prevention is justified, even if it is unclear precisely what those conditions are. This Article aims to show that in a significant class of cases, the justificatory argument in favor of harming another in order to prevent that person from doing something objectionable is significantly weaker if that person\u27s objectionable conduct is not imminent. This is so, it will be suggested, even if you are entirely certain that the person will do the objectionable thing if not prevented. Imminence is important to the justification of prevention, that is, independently of necessity. The argument for this controversial claim emerges from the discussion of the similarities between prevention and pre-punishment. Pre-punishment is wrongful, it is suggested, because the crime has not been actualized at the time of the punishment. A next best alternative to actualization is imminence. And so imminence aids in the justification of prevention for reasons closely related to the reasons why actualization is needed for the justification of punishment. Part II concerns pre-punishment and identifies the sense in which punishment\u27s justification depends on the actuality of the crime for which punishment is issued. The Part also justifies this actuality requirement on punishment through appeal to a necessary condition on desert of punishment?one found, among other places, in the writings of Samuel Pufendorf. Part III explains the sense in which imminence can serve not as a replacement for actuality but as a next-best alternative that allows for the justification of a certain class of preventions, namely, those in which part of what justifies the act of prevention is that the person thereby harmed would have deserved such harm had that person gone through with the objectionable act that the harm prevented. The Part also explains why imminence is of independent importance from necessity. The conclusion of the Article solves the two puzzles about the relationship between prevention and pre-punishment by drawing on the conceptual resources developed in the preceding Parts

The Office of an Introspectible Sensation: A reply to Falkenstein and Grandi

For Reid the perception of smell, taste, sound, temperature, texture, and color all proceed according to what has come to be known as ‘the Standard Schema’: the quality of the object impresses itself upon our bodies; this physical impression gives rise to a sensation; and this sensation, in turn, “suggests” the quality of the object, resulting thereby in a conception of the quality and a conviction in its existence. All interpreters of Reid agree in this. In fact, they also agree that the tactile perception of shape proceeds according to the Standard Schema. In “Reid on the Perception of Visible Figure”, I defend the unpopular view that for Reid the Standard Schema describes, also, the visual perception of perspectival shapes, what Reid calls “visible figures”. I claim that Reid takes visual sensations to suggest both color and figure, and so holds that visible figure is indeed suggested by a sensation, just like every other perceived quality. In their very interesting article (against my objections), Lorne Falkenstein and Giovanni Grandi defend the popular view according to which visible figures, for Reid, are suggested entirely by retinal impressions, without the aid of any sensation. I am not convinced by the moral they draw from their discussion. In what follows, I explain why I am not

Reasonableness in the Law and Second-Personal Address

Law students discover very early in their legal educations that the reasonable person is a ubiquitous fixture of the law. Whether or not an injury is the product of negligence in tort law depends on whether or not a reasonable person would have taken a precaution which would have averted the injury. Whether or not an offer has been made in contract law depends on whether or not a reasonable person would have taken the party to be conferring a power to create an agreement through acceptance. Whether or not an act of killing an aggressor was done in self-defense in criminal law depends on whether or not a reasonable person would have taken deadly force to be required to repel the threat. The list goes on and on. Over and over again the law asks not just what the plaintiff or defendant actually did or thought, but also what a reasonable person would have done or thought, or what a reasonable person would have understood another person to have done or thought. Defendant\u27s actions and thoughts are compared, that is, to those of the reasonable person. In fact, sometimes what the defendant actually did or thought is irrelevant; all that matters is what the reasonable person would have done or thought. Such is the case, for instance, in the mens rea of negligence in criminal law. If, for example, a reasonable person would have expected a particular act to kill another human being, then one of the mens rea elements of negligent homicide is present even if the defendant did not expect that result, or even if the defendant expected the opposite. Our law gives tremendous weight to the acts and thoughts of the reasonable person