Responsibility and the boundaries of the self

Harvard Law Review

Volumn 105, Issue 5, 1992, Pages 959-1003

  Dan Cohen, Meir ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b TEL AVIV UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

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EID: 0012568760     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341517     Document Type: Article

References (112)

1. For a leading contemporary philosopher's testimony that the free will-determinism problem is far from solved, see THOMAS NAGEL, THE VIEW FROM NOWHERE 110-37 (1986). Nagel also believes "that the problem of responsibility is insoluble, or at least unsolved." Id. at 120.
2. For a leading contemporary philosopher's testimony that the free will-determinism problem is far from solved, see THOMAS NAGEL, THE VIEW FROM NOWHERE 110-37 (1986). Nagel also believes "that the problem of responsibility is insoluble, or at least unsolved." Id. at 120.
3. Consider Professor Packer's blunt move to short circuit the whole issue: "Very simply, the law treats man's conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were." HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 74-75 (1968).
4. Notable recent examples include DEREK PARFIT, REASONS AND PERSONS (1984); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); and ROBERTO M. UNGER, PASSION (1984). For a related criticism of legal scholarship for its failure to consider the law-creating subject, see Pierre Schlag, The Problem of the Subject, 69 TEX. L. REV. 1627 (1991).
5. Notable recent examples include DEREK PARFIT, REASONS AND PERSONS (1984); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); and ROBERTO M. UNGER, PASSION (1984). For a related criticism of legal scholarship for its failure to consider the law-creating subject, see Pierre Schlag, The Problem of the Subject, 69 TEX. L. REV. 1627 (1991).
6. Notable recent examples include DEREK PARFIT, REASONS AND PERSONS (1984); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); and ROBERTO M. UNGER, PASSION (1984). For a related criticism of legal scholarship for its failure to consider the law-creating subject, see Pierre Schlag, The Problem of the Subject, 69 TEX. L. REV. 1627 (1991).
7. Notable recent examples include DEREK PARFIT, REASONS AND PERSONS (1984); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982); and ROBERTO M. UNGER, PASSION (1984). For a related criticism of legal scholarship for its failure to consider the law-creating subject, see Pierre Schlag, The Problem of the Subject, 69 TEX. L. REV. 1627 (1991).
8. JEAN-PAUL SARTRE, BEING AND NOTHINGNESS 707 (Hazel E. Barnes trans., 1956). I borrow Sartre's definition without subscribing to all his views on responsibility. Note that under Sartre's definition, the ascription of responsibility is independent of its possible incidents or consequences such as moral censure or punishment. For an example of the contrary view that collapses responsibility into its incidents, see 2 FITZJAMES STEPHEN, A HISTORY OF CRIMINAL LAW 183 (1883) ("[T]he meaning of responsibility is liability to punishment.").
9. JEAN-PAUL SARTRE, BEING AND NOTHINGNESS 707 (Hazel E. Barnes trans., 1956). I borrow Sartre's definition without subscribing to all his views on responsibility. Note that under Sartre's definition, the ascription of responsibility is independent of its possible incidents or consequences such as moral censure or punishment. For an example of the contrary view that collapses responsibility into its incidents, see 2 FITZJAMES STEPHEN, A HISTORY OF CRIMINAL LAW 183 (1883) ("[T]he meaning of responsibility is liability to punishment.").
10. H.L.A. Hart draws attention to the ambiguity of responsibility statements, although he construes it quite differently. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 186, 196-97 (1968); see also id. at 210-30 (discussing other senses of responsibility).
11. H.L.A. Hart draws attention to the ambiguity of responsibility statements, although he construes it quite differently. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 186, 196-97 (1968); see also id. at 210-30 (discussing other senses of responsibility).
12. A sense of responsibility that corresponds to what I call subject-responsibility is suggested in JOEL FEINBERG, Collective Responsibility, in DOING AND DESERVING 222, 250-51 (1970); and Eugene Schlossberger, Why We Are Responsible for Our Emotions, 95 MIND 37 (1986). An account of responsibility for emotions that is based on what I call object-responsibility may be found in Edward Sankowski, Responsibility of Persons for Their Emotions, 7 CAN. J. PHIL. 829 (1977).
13. A sense of responsibility that corresponds to what I call subject-responsibility is suggested in JOEL FEINBERG, Collective Responsibility, in DOING AND DESERVING 222, 250-51 (1970); and Eugene Schlossberger, Why We Are Responsible for Our Emotions, 95 MIND 37 (1986). An account of responsibility for emotions that is based on what I call object-responsibility may be found in Edward Sankowski, Responsibility of Persons for Their Emotions, 7 CAN. J. PHIL. 829 (1977).
14. A sense of responsibility that corresponds to what I call subject-responsibility is suggested in JOEL FEINBERG, Collective Responsibility, in DOING AND DESERVING 222, 250-51 (1970); and Eugene Schlossberger, Why We Are Responsible for Our Emotions, 95 MIND 37 (1986). An account of responsibility for emotions that is based on what I call object-responsibility may be found in Edward Sankowski, Responsibility of Persons for Their Emotions, 7 CAN. J. PHIL. 829 (1977).
15. The existentialists, primarily Sartre, are mostly associated with the former formulation. The latter formulation can be traced at least as far back as GIOVANNI PICO DELLA MIRANDOLA, ORATION ON THE DIGNITY OF MAN 5-13 (A. Robert Caponigri trans., 1956).
16. SARTRE, supra note 4, at 309. Sartre uses this formula in, for example, his discussion of the body. See id.
17. Memory is perhaps the most widely discussed factor of personal identity; it strings together various events and links them to a single, continuous self. The locus classicus of this position is in JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 558-66 (1879). For the most extensive contemporary treatment, see SYDNEY SHOEMAKER, SELF-KNOWLEDGE AND SELF-IDENTITY (1963).
18. Memory is perhaps the most widely discussed factor of personal identity; it strings together various events and links them to a single, continuous self. The locus classicus of this position is in JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 558-66 (1879). For the most extensive contemporary treatment, see SYDNEY SHOEMAKER, SELF-KNOWLEDGE AND SELF-IDENTITY (1963).
19. For an ingenious and sustained argument favoring the scalar view of the self, see PARFIT, supra note 3, at 199-306.
20. See Henry G. Frankfurt's essays Identification and Externality, in THE IMPORTANCE OF WHAT WE CARE ABOUT 58, 58-62 (1988), and Identification and Wholeheartedness, in id. at 159, 167-76.
21. See Henry G. Frankfurt's essays Identification and Externality, in THE IMPORTANCE OF WHAT WE CARE ABOUT 58, 58-62 (1988), and Identification and Wholeheartedness, in id. at 159, 167-76.
22. This is why my body always extends across the tool which it utilizes: it is at the end of the cane on which I lean and against the earth; it is at the end of the telescope which shows me the stars; it is on the chair, in the whole house; for it is my adaptation to these tools. SARTRE, supra note 4, at 325. Compare Merleau-Ponty's view: "To get used to a hat, a car or a stick is to be transplanted into them, or conversely, to incorporate them into the bulk of our own body. . . . It is literally true that the subject who learns to type incorporates the key-bank space into his bodily space." M. MERLEAU-PONTY, PHENOMENOLOGY OF PERCEPTION 143, 145 (Colin Smith trans., 1962).
23. John Dewey gave a similar description: A piano player who had perfect mastery of his instrument would have no occasion to distinguish between his contribution and that of the piano. In well-formed, smooth-running functions of any sort, - skating, conversing, hearing music, enjoying a landscape, - there is no consciousness of separation of the method of the person and of the subject matter. In whole-hearted play and work there is the same phenomenon. JOHN DEWEY, DEMOCRACY AND EDUCATION 195 (1916).
24. See ERVING GOFFMAN, ENCOUNTERS 85-152 (1961). The concept is applied in ERVING GOFFMAN, The Underlife of a Public Institution: A Study of Ways of Making Out in a Mental Hospital, in ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES 171, 318-20 (1961).
25. See ERVING GOFFMAN, ENCOUNTERS 85-152 (1961). The concept is applied in ERVING GOFFMAN, The Underlife of a Public Institution: A Study of Ways of Making Out in a Mental Hospital, in ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES 171, 318-20 (1961).
26. The primary modern text on the social origins of the self is GEORGE H. MEAD, MIND, SELF & SOCIETY (1934). For a more recent statement, see PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF REALITY 173-80 (1966).
27. The primary modern text on the social origins of the self is GEORGE H. MEAD, MIND, SELF & SOCIETY (1934). For a more recent statement, see PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF REALITY 173-80 (1966).
28. To say that the self is constructed of modular units is not to suggest any particular degree of uniformity of such units, nor to claim that any such unit cannot unravel into smaller units of modularity. For example, although a large modular unit under the description "Orthodox Jew" is available, it does not follow that one must espouse it in its entirety or not at all. One can pick subunits out of this package that are themselves modular. However, identifying and applying the appropriate means and criteria of such selective self-definition are difficult issues that I cannot discuss here.
29. Sartre uses this peculiar verb in reference to the relationship between consciousness and the body: "It would be best to say, using 'exist' as a transitive verb - that consciousness exists its body." SARTRE, supra note 4, at 329. Conscious states, such as pain, are also "existed" by consciousness. Id. at 338.
30. The occurrence of such an aberrant reaction, however, may assume different significance over time. For example, if such "aberrations" recur, they may have to be incorporated into the ever revisable picture of the total self and thus change its constitution.
31. For example, an experience of shame is not a sufficient condition for responsibility when the experience results from a factual mistake: as it turns out, it was not really me who overturned the vase; it was the wind, or someone else.
32. Here again, the simplest case is one that involves a factual mistake: I did not notice at first that it was my hand that overturned the vase.
33. As in the corresponding case mentioned in note 18 above, persistent failure to assume a responsible stance under similar circumstances will eventually be incorporated in the total self and will suggest a revision of its boundaries.
34. See supra pp. 962-63.
35. See supra pp. 960-61.
36. See ARISTOTLE, NICOMACHEAN ETHICS, book III, ch. 5.
37. For an interpretation (or rather a reconstruction) of Aristotle's theory of moral responsibility that tries to avoid this problem, see T.H. Irwin, Reason and Responsibility in Aristotle, in ESSAYS ON ARISTOTLE'S ETHICS 117, 126-44 (Amelie O. Rorty ed., 1980).
38. This is in one sense Kant's own solution; roughly, we are responsible not because we "will our will" but because we are our will as noumenal selves. See IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 101-02 (H.J. Paton trans., 1948); see also Allen W. Wood, Kant's Compatibilism, in SELF AND NATURE IN KANT'S PHILOSOPHY 73 (Allen W. Wood ed., 1984) (defending Kant's reconciliation of freedom and determinism through the noumenal self).
39. This is in one sense Kant's own solution; roughly, we are responsible not because we "will our will" but because we are our will as noumenal selves. See IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 101-02 (H.J. Paton trans., 1948); see also Allen W. Wood, Kant's Compatibilism, in SELF AND NATURE IN KANT'S PHILOSOPHY 73 (Allen W. Wood ed., 1984) (defending Kant's reconciliation of freedom and determinism through the noumenal self).
40. See, e.g., ALFRED J. AYER, Freedom and Necessity, in PHILOSOPHICAL ESSAYS 271 (1954); John V. Canfield, The Compatibility of Free Will and Determinism, PHIL. REV., July 1962, at 352, 352.
41. See, e.g., ALFRED J. AYER, Freedom and Necessity, in PHILOSOPHICAL ESSAYS 271 (1954); John V. Canfield, The Compatibility of Free Will and Determinism, PHIL. REV., July 1962, at 352, 352.
42. Charles Taylor, Responsibility for Self, in FREE WILL 111, 112 (Gary Watson ed., 1982).
43. See id. at 126.
44. Metaphors are supposed to carry us away, but hopefully not too far afield. These "dimensions" should not be reified and rigidly separated. They are merely heuristic aids meant to facilitate a mental grip on the unitary category of the self. As explained below, see infra PP. 980-82, the same phenomena can sometimes be explained by reference to different dimensions of the self.
45. This is not to say that people are responsible for all the effects traceable to their bodies. In Part IV, I illustrate some of the ways in which one can try to avoid responsibility by distancing oneself from certain aspects of one's bodily existence.
46. 32 See infra Part V.
47. See Rylands v. Fletcher, 3 L.R.-E. & I. App. 330 (H.L. 1868).
48. See Page v. Hollingsworth, 7 Ind. 317 (1855).
49. The language used by the court in an old case to explain the defendant's tort liability for his straying animals is instructive on this point: "'[W]here my beasts of their own wrong without my will and knowledge break another's close I shall be punished, for I am the trespasser with my beasts . . . .'" WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 496 (4th ed. 1971) (quoting 12 Hen. VII, Keilway 36, 72 Eng. Rep. 156). On the identification of the owner with his slaves and property in old tort law, see John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 330-37 (1894).
50. The language used by the court in an old case to explain the defendant's tort liability for his straying animals is instructive on this point: "'[W]here my beasts of their own wrong without my will and knowledge break another's close I shall be punished, for I am the trespasser with my beasts . . . .'" WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 496 (4th ed. 1971) (quoting 12 Hen. VII, Keilway 36, 72 Eng. Rep. 156). On the identification of the owner with his slaves and property in old tort law, see John H. Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 315, 330-37 (1894).
51. The most succinct statement of this view of property is probably von Jhering's: "Property is but the periphery of my person extended to things." RUDOLPH VON JHERING, THE STRUGGLE FOR LAW 59 (John J. Lalor trans., 2d ed. 1915). For a recent exposition of this perspective, see Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957, 959 (1982).
52. The most succinct statement of this view of property is probably von Jhering's: "Property is but the periphery of my person extended to things." RUDOLPH VON JHERING, THE STRUGGLE FOR LAW 59 (John J. Lalor trans., 2d ed. 1915). For a recent exposition of this perspective, see Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957, 959 (1982).
53. See supra note 12 and accompanying text.
54. See MERLEAU-PONTY, supra note 12, at 143.
55. Although the common law does not generally recognize parents' vicarious liability, many jurisdictions have statutory provisions to this effect. For a survey, see Note, Emogene C. Wilhelm, Vicarious Parental Liability in Connecticut: Is It Effective?, 7 U. BRIDGEPORT L. REV. 99, 121-24 (1986).
56. For one commentator's testimony of the difficulties encountered in this area, see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 8.5, at 649 (1978) ("Tort scholars have been puzzled for decades to explain the tort rule in employer liability cases.").
57. For a comprehensive examination and rejection of the different arguments that might uphold the relevance of actual harm, see Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. PA. L. REV. 1497 (1974).
58. See, e.g., THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24 (1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK 20, 20 (1981).
59. See, e.g., THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24 (1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK 20, 20 (1981).
60. See WILLIAMS, supra note 42, at 20-22.
61. See, e.g., FEINBERG, supra note 6, at 248-51; Thomas R. Flynn, Collective Responsibility and Obedience to the Law, 18 GA. L. REV. 845, 846-52 (1984); Virginia Held, Moral Responsibility and Collective Action, in INDIVIDUAL AND COLLECTIVE RESPONSIBILITY 101, 108-09 (Peter A. French ed., 1972).
62. See, e.g., FEINBERG, supra note 6, at 248-51; Thomas R. Flynn, Collective Responsibility and Obedience to the Law, 18 GA. L. REV. 845, 846-52 (1984); Virginia Held, Moral Responsibility and Collective Action, in INDIVIDUAL AND COLLECTIVE RESPONSIBILITY 101, 108-09 (Peter A. French ed., 1972).
63. See, e.g., FEINBERG, supra note 6, at 248-51; Thomas R. Flynn, Collective Responsibility and Obedience to the Law, 18 GA. L. REV. 845, 846-52 (1984); Virginia Held, Moral Responsibility and Collective Action, in INDIVIDUAL AND COLLECTIVE RESPONSIBILITY 101, 108-09 (Peter A. French ed., 1972).
64. See, e.g., FEINBERG, supra note 6, at 233.
65. "From our attribution of an action, and moral responsibility, to a collectivity, it does not follow that the collectivity's members are morally responsible for the action of the collectivity." Held, supra note 44, at 109 (footnote omitted).
66. Thus, some writers deny the intelligibility of collective responsibility altogether. See, e.g., H.D. Lewis, The Non-Moral Notion of Collective Responsibility, in INDIVIDUAL AND COLLECTIVE RESPONSIBILITY, supra note 44, at 119, 121-32. Note that Lewis speaks only about responsibility "in the proper ethical sense," id. at 121, rather than in the more general sense addressed in this article.
67. Thus, some writers deny the intelligibility of collective responsibility altogether. See, e.g., H.D. Lewis, The Non-Moral Notion of Collective Responsibility, in INDIVIDUAL AND COLLECTIVE RESPONSIBILITY, supra note 44, at 119, 121-32. Note that Lewis speaks only about responsibility "in the proper ethical sense," id. at 121, rather than in the more general sense addressed in this article.
68. See, e.g., JOHN P. HEWITT, SELF AND SOCIETY: A SYMBOLIC INTERACTIONIST SOCIAL PSYCHOLOGY 91-95 (1976).
69. My discussion focuses on the social or cultural meaning of "American identity," not on the possible formal meaning, as with citizenship requirements.
70. The collective identity I describe admits the possibility of alienation: one can be distanced from a role with which one is generally expected to identify. Moreover, "alienation" here is not at all a negative term. Depending on the nature of the role, one may be better off, ethically speaking, being alienated from it than identifying with it.
71. See Stanley Bates, My Lai and Vietnam: The Issues of Responsibility, in INDIVIDUAL AND COLLECTIVE RESPONSIBILITY, supra note 44, at 145, 155-57, 161-63.
72. [I]t is of the very essence of our deep-rooted notions of criminal liability that guilt be personal and individual . . . ." Francis B. Sayre, Criminal Responsibility for the Acts of Another, 43 HARV. L. REV. 689, 717 (1943).
73. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK OF CRIMINAL LAW § 6.8, at 588 (2d ed. 1986) (footnote omitted).
74. Id. § 6.8, at 590 (footnote omitted).
75. See, e.g., Phillip E. Johnson, The Unnecessary Crime of Conspiracy, 61 CAL. L. REV. 1137 (1973).
76. See People v. Kessler, 315 N.E.2d 29, 30-31 (Ill. 1974).
77. This does not amount to an endorsement of the decision or the doctrine. Responsibility, as discussed in this Article, is a necessary but not a sufficient ground for criminal liability; the latter also requires blame. The conclusion that the defendant is not responsible for an offense precludes liability, but finding responsibility does not by itself authorize criminal punishment. Further conditions of blameworthiness must be satisfied, but they fall outside my present topic.
78. 1 W.L.R. 317 (1955).
79. See id. at 317.
80. See id. at 322-24.
81. Criminal law theory casts this issue as a dispute over the adequate definition of "act" - that is, whether the definition should include a reference to the element of voluntariness. See, e.g., HERBERT MORRIS, FREEDOM AND RESPONSIBILITY 105-07 (1961).
82. There are in fact references in the decision to the impairment of Charlson's self-control as a result of the tumor. See Charlson, 1 W.L.R. at 320-22.
83. The relationship between sexuality and the self has important constitutional ramifications. See Bowers v. Hardwick, 478 U.S. 186, 203-13 (1985) (Blackmun, J., dissenting). In arguing against the constitutionality of a Georgia statute criminalizing sodomy, the Bowers dissent relies on "[t]he fact that individuals define themselves in a significant way through their intimate sexual relationships with others." Id. at 205.
84. For data concerning the treatment of child molesters in a number of jurisdictions, see INNOVATIONS IN THE PROSECUTION OF CHILD SEXUAL ABUSE CASES 9-134 (Josephine Bulkley ed., 1981).
85. 2 All E.R. 801 (H.L. 1952).
86. See id. at 802.
87. See id. at 803.
88. MODEL PENAL CODE § 210.3(1)(b) (Proposed Official Draft 1962).
89. MODEL PENAL CODE AND COMMENTARIES Part II § 210.3, at 56 (Official Draft and Revised Comments 1980).
90. ROYAL COMMISSION ON CAPITAL PUNISHMENT, 1949-1953 REPORT 52-53 (1953).
91. GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW 548 (2d ed. 1983).
92. FLETCHER, supra note 40, § 4.2, at 247.
93. Id.
94. Id. § 4.2, at 249.
95. Id. § 6.8, at 513.
96. Id. § 6.8, at 513-14.
97. The ordinary use of these terms only approximates the conceptual distinction I want to make.
98. For the centrality of the notion of "coping" in Heidegger's conception of the self, see HUBERT L. DREYFUS, BEING-IN-THE-WORLD 67-75 (1991).
99. These two interpretations of duress seen as an excuse are elaborated in FLETCHER, supra note 40, §§ 10.3-10.3.4, at 798-810.
100. 378 A.2d 755 (N.J. 1977). Dr. Toscano, a chiropractor, was charged with aiding the preparation of a fraudulent insurance claim by making out a false medical report and was convicted of conspiring to obtain money by false pretenses. Toscano claimed that he had been under threats to his own and his wife's safety. The conviction was reversed on appeal. See id. at 756-57.
101. Judge Bazelon has argued for an expanded insanity defense that extends to extreme social deprivation. See David L. Bazelon, The Morality of the Criminal Law, 49 S. CAL. L. REV. 385, 394-98 (1976); see also Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 L. & INEQ. J, 9, 12 (1985) (urging serious consideration of a "rotten social background" defense).
102. Judge Bazelon has argued for an expanded insanity defense that extends to extreme social deprivation. See David L. Bazelon, The Morality of the Criminal Law, 49 S. CAL. L. REV. 385, 394-98 (1976); see also Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 L. & INEQ. J, 9, 12 (1985) (urging serious consideration of a "rotten social background" defense).
103. See Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 643-44 (1981).
104. Blackstone, for example, lists the execution of condemned criminals as the first item in his discussion of justified homicide; self-defense appears later in that discussion. See 4 WILLIAM BLACKSTONE, COMMENTARIES *178.
105. She does not, of course, deny her equal share of the collective responsibility for the execution.
106. See supra pp. 985-89.
107. See supra p. 967.
108. On the notion of "dirty hands," see THOMAS NAGEL, Ruthlessness in Public Life, in MORTAL QUESTIONS, supra note 42, at 75; BERNARD WILLIAMS, Politics and Moral Character, in MORAL LUCK, supra note 42, at 54; Michael Walzer, Political Action: The Problem of Dirty Hands, in WAR AND MORAL RESPONSIBILITY 62 (M. Cohen, T. Nagel & T. Scanlon eds., 1974).
109. On the notion of "dirty hands," see THOMAS NAGEL, Ruthlessness in Public Life, in MORTAL QUESTIONS, supra note 42, at 75; BERNARD WILLIAMS, Politics and Moral Character, in MORAL LUCK, supra note 42, at 54; Michael Walzer, Political Action: The Problem of Dirty Hands, in WAR AND MORAL RESPONSIBILITY 62 (M. Cohen, T. Nagel & T. Scanlon eds., 1974).
110. On the notion of "dirty hands," see THOMAS NAGEL, Ruthlessness in Public Life, in MORTAL QUESTIONS, supra note 42, at 75; BERNARD WILLIAMS, Politics and Moral Character, in MORAL LUCK, supra note 42, at 54; Michael Walzer, Political Action: The Problem of Dirty Hands, in WAR AND MORAL RESPONSIBILITY 62 (M. Cohen, T. Nagel & T. Scanlon eds., 1974).
111. See generally LAFAVE & SCOTT, supra note 53, § 3.3, at 211-12 (discussing the duty to rescue in Anglo-American law).
112. For a Kantian interpretation of criminal law's primary doctrines, see David Richards, Human Rights and the Moral Foundations of Substantive Criminal Law, 13 GA. L. REV. 1395 (1979).