A Utilitarian Theory of Duress

Iowa Law Review

Volumn 84, Issue 2, 1999, Pages 275-337

  Hill, John Lawrence ^a  

^a NONE

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EID: 0347173057     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (253)

1. The distinction between excuse and justification defenses has been the subject of considerable scholarly analysis. The distinction has been cast in terms of the difference between condoning an act (justification) and holding that, while the act is otherwise legally impermissible, the actor is not morally or legally responsible for its commission (excuse). See Kent Greenwalt, Distinguishing Justification From Excuse, 49 LAW & CONTEMP. PROBS. 89 (1986) (arguing that the distinction is far from clear). The Model Penal Code appears skeptical about whether the two concepts can be so neatly distinguished. MODEL PENAL CODE § 3 introduction. (1985). Perhaps the most important philosophical reason for this modern skepticism is that justification has been traditionally explicated as an act utilitarian defense, where the defendant can prove that the greater evil was avoided by his act, while excuse sounds in the paradigm of deontology. To the extent that excuse is also viewed in recent times in utilitarian terms, the two categories of defense are more difficult to distinguish. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 28-53 (1968) (discussing the utilitarian account of excuse). See infra notes 20-46 (discussing excuse and justification at greater length).
2. The distinction between excuse and justification defenses has been the subject of considerable scholarly analysis. The distinction has been cast in terms of the difference between condoning an act (justification) and holding that, while the act is otherwise legally impermissible, the actor is not morally or legally responsible for its commission (excuse). See Kent Greenwalt, Distinguishing Justification From Excuse, 49 LAW & CONTEMP. PROBS. 89 (1986) (arguing that the distinction is far from clear). The Model Penal Code appears skeptical about whether the two concepts can be so neatly distinguished. MODEL PENAL CODE § 3 introduction. (1985). Perhaps the most important philosophical reason for this modern skepticism is that justification has been traditionally explicated as an act utilitarian defense, where the defendant can prove that the greater evil was avoided by his act, while excuse sounds in the paradigm of deontology. To the extent that excuse is also viewed in recent times in utilitarian terms, the two categories of defense are more difficult to distinguish. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 28-53 (1968) (discussing the utilitarian account of excuse). See infra notes 20-46 (discussing excuse and justification at greater length).
3. See infra notes 47-55 and accompanying text (examining the relationship between duress and voluntariness).
4. See ALAN WERTHEIMER, COERCION 19-53 (1987) (discussing coercion in contract law); id. at 144-69 (discussing duress in the criminal law). Wertheimer concludes that it is much more difficult to establish a claim of duress as a defense in a criminal matter, vis-à-vis a civil action. Id. at 153-54.
5. See infra Part IV.B. (defending the view that the utilitarian approach to duress is consistent with its exculpatory character).
6. In the context of duress as a defense in contract law, see generally Kaplan v. Kaplan, 182 N.E.2d 706 (1962); Austin Industrial Co. v. Loral Corp., 272 N.E.2d 533, 535 (1971); 13 SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS § 1605 (3d ed. 1970). For the classic statement, see Silsbee v. Webster, 50 N.E. 555 (1898) (stating that "duress going to motives consists in the threat of illegal acts"). In the criminal context, the Model Penal Code provides that duress excuses when "a person of reasonable firmness in his situation would have been unable to resist." MODEL PENAL CODE, § 2.09 (1962). The essence of the excuse is involuntariness. As one English case put it, a defendant should be acquitted "if the will of the accused [was] overborne by threats of death or serious bodily injury so [that] the commission of the offence was no longer the voluntary act of the accused." Regina v. Hudson 2 All E.R. 244, 246 (Crim. App. 1971).
7. See WERTHEIMER, supra note 3, at 7 (comparing empirical and moralized theories of coercion).
8. See IRVING M. COPI, AN INTRODUCTION TO LOGIC 470-75 (6th ed. 1982) (discussing these five criteria).
9. Jurisprudential theories differ from scientific theories with respect to the obvious fact that jurisprudential constructs are not empirical. Thus, jurisprudential concepts such as responsibility, excuse or duress are not amenable to empirical disverification. See id. at 471 (discussing testability). Indeed, disverifiability is usually viewed as a mark of the empirical, visà-vis the metaphysical. Put even more starkly, one cannot be said to have a theoretical hypothesis without there existing some possible opportunity for disverification, i.e., falsification by reference to some disconfirming observation. See CARL G. HEMPL, ASPECTS OF SCIENTIFIC EXFLANATION 39-46 (1960) (discussing absolute and relative conceptions of falsification and disverification from a logical positivist standpoint).
10. I have in mind Rawls' idea of reflective equilibrium here, by which theory and intuition may be mutually modified until we obtain a "fit" between the two. See JOHN RAWLS, A THEORY OF JUSTICE 48-50 (1971) (discussing the process by which we move from pre-analytic intutition to theory and back to intuition to make theory and our case-by-case intuitions correspond to one another).
11. See, e.g., MODEL PENAL CODE § 2.09 (1985) ("It is an affirmative defense that the actor engaged in the conduct . . . which a person of reasonable firmness would have been unable to resist."). The civil law is more conflicted on this account. See, e.g., S.P. Dunhom & Co. v. Kudra, 131 A.2d 306 (N.J. 1957) (rejecting the "objective" test). Cf. WERTHEIMER, supra note 3, at 33-34 (arguing that the civil law occasionally employs the objective test).
12. A "moralized" theory of duress, such as the one offered by Professor Wertheimer, may not be able to adequately distinguish between duress, on one hand, and unconscionability, enticement, and provocation, on the other. If duress is understood simply as a defense that recognizes the privilege of the victim to act in the face of an immoral proposal, WERTHEIMER, supra note 3, at 307, it appears that these other defenses cannot be distinguished, at least on this most general level of description.
13. Of course, jurisprudential constructs could be recast in empirical terms by reference to what a judge will do in a given situation. In this fashion, the judge's decision has a parallel function to that of an experiment in the scientific realm. Jurisprudential concepts would thus be operationalized by saying that a given situation was not an instance of duress if a judge says it was not. The problem with this, however, is that a judge's decision might be wrong. Moreover, this does not give the judge any assistance in the event that she is not certain whether duress obtains in a given instance. Finally, even if judges routinely disagree, it would not be incoherent for a third party to maintain that duress does in fact cover a situation where a judge has held to the contrary.
14. Internal consistency is presupposed by the criteria of testability and predictive power. A theory that embodies a contradiction would be capable of generating any outcome on the principle that anything follows logically from a contradiction. This, in turn, would undermine the testability and predictive power of any theory, because there would be no possible instance of falsification. In sum, internal consistency is necessary for disverifiability, itself a hallmark of a genuine scientific theory.
15. For example, to meet the criterion of descriptive accuracy, the theory must be relevant to the topic described.
16. Simplicity is an application of the metaphysical principle of Occam's razor to the scientific domain. See BERTRAND RUSSELL, A HISTORY OF WESTERN PHILOSOPHY 472 (1966) (discussing Occam's razor).
17. See THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 77-91 (1970) (discussing the sociological aspects of paradigm change in science as an emerging theory challenges previously existing hypotheses).
18. This can be particularly problematic because theories tend to generate their own methodological assumptions as to evaluative criteria for a theory. Thus, there appear to be no objective, trans-theoretical assumptions for assessing competing theories. In quantum physics, for example, the methodological assumptions which underlie the concept of virtual particles could not be evaluated from the standpoint of the earlier Newtonian model. See TIMOTHY FERRIS, COMING OF AGE IN THE MILKY WAY 35-52 (1988) (providing a popular account of virtual particle theory).
19. In other words, any theory that could generate inconsistent conclusions must embody an internal contradiction. This confronts us with having to make the choice between adopting an inconsistent theory and having to ignore a portion of the existing law as incorrectly decided.
20. For example, the traditional duress defense in the criminal law never applied as a defense to murder. See infra note 188 and accompanying text (discussing the common law of duress and murder). If our normative judgments require that duress defenses apply even in cases of homicide, there would be a conflict between descriptive accuracy and normative testability.
21. See PAUL H. ROBINSON, CRIMINAL LAW 479 (1997) (arguing that justification permits a defense because the act is socially desirable, while excuses absolve the actor of responsibility).
22. See Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 220-21 (1982) (contrasting justification and excuse).
23. See WERTHEIMER, supra note 3, at 144-69 (distinguishing necessity and duress by arguing that necessity is an agent-neutral justification while duress is an agent-relative justification); Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits, 62 S. CAL. L. REV. 1331, 1347-49 (1989) (distinguishing necessity from duress); id. at 1356-67 (arguing that duress is better understood as an excuse, not a justification).
24. See JOEL FEINBERG, DOING AND DESERVING 1274-75 (1970) (discussing the Aristotelian bases for excuse); Michael Moore, Causation and the Excuses, 73 CAL. L. REV. 1091 (1985) (discussing these excuses).
25. See JOEL FEINBERG, DOING AND DESERVING 1274-75 (1970) (discussing the Aristotelian bases for excuse); Michael Moore, Causation and the Excuses, 73 CAL. L. REV. 1091 (1985) (discussing these excuses).
26. The following commentators have argued that duress should be viewed as an excuse: GEORGE FLETCHER, RETHINKING CRIMINAL LAW 830 (1978); Dressler, supra note 22, at 1350; Moore, supra note 23, at 1098. Others adopt the view that duress is a justification. E.g., WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed. 1986); WERTHEIMER, supra note 3, at 166; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (1961).
27. The following commentators have argued that duress should be viewed as an excuse: GEORGE FLETCHER, RETHINKING CRIMINAL LAW 830 (1978); Dressler, supra note 22, at 1350; Moore, supra note 23, at 1098. Others adopt the view that duress is a justification. E.g., WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed. 1986); WERTHEIMER, supra note 3, at 166; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (1961).
28. The following commentators have argued that duress should be viewed as an excuse: GEORGE FLETCHER, RETHINKING CRIMINAL LAW 830 (1978); Dressler, supra note 22, at 1350; Moore, supra note 23, at 1098. Others adopt the view that duress is a justification. E.g., WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed. 1986); WERTHEIMER, supra note 3, at 166; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (1961).
29. See infra notes 159-64 and accompanying text (noting criticism of this limitation on duress).
30. E.g., WERTHEIMER, supra note 3, at 166; Dressler, supra note 22, at 1352.
31. See LAFAVE & SCOTT, supra note 24, at 434 (2d ed. 1986) (discussing this problem and arguing that, for this reason, duress should be viewed as a justification).
32. ARISTOTLE, Ethica Nicomochea, in THE BASIC WORKS OF ARISTOTLE (Richard McKeown ed., 1941); see John Lawrence Hill, Exploitation, 79 CORNELL L. REV. 631, 655-59 (1994) (tracing the origins and development of the modern exculpatory paradigm from Aristotle).
33. ARISTOTLE, Ethica Nicomochea, in THE BASIC WORKS OF ARISTOTLE (Richard McKeown ed., 1941); see John Lawrence Hill, Exploitation, 79 CORNELL L. REV. 631, 655-59 (1994) (tracing the origins and development of the modern exculpatory paradigm from Aristotle).
34. ARISTOTLE, supra note 28, at 964.
35. FEINBERG, supra note 23, at 274-75.
36. This doctrine is most explicitly evident in the doctrine of informed consent, which requires that medical procedures shall be performed only after the patient has given her fully informed voluntary and rational consent. See PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MED. AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SUMMING UP 17-22 (1983) (discussing the doctrine of informed consent in medicine); JOHN GRAY, LIBERALISM 56-60 (1995) (surveying the "idea of freedom" in both its positive and negative interpretations). See generally ALEXANDER BICKEL, THE MORALITY OF CONSENT (1975) (discussing the political and moral implications of a moral system predicated upon consent).
37. This doctrine is most explicitly evident in the doctrine of informed consent, which requires that medical procedures shall be performed only after the patient has given her fully informed voluntary and rational consent. See PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MED. AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SUMMING UP 17-22 (1983) (discussing the doctrine of informed consent in medicine); JOHN GRAY, LIBERALISM 56-60 (1995) (surveying the "idea of freedom" in both its positive and negative interpretations). See generally ALEXANDER BICKEL, THE MORALITY OF CONSENT (1975) (discussing the political and moral implications of a moral system predicated upon consent).
38. This doctrine is most explicitly evident in the doctrine of informed consent, which requires that medical procedures shall be performed only after the patient has given her fully informed voluntary and rational consent. See PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MED. AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SUMMING UP 17-22 (1983) (discussing the doctrine of informed consent in medicine); JOHN GRAY, LIBERALISM 56-60 (1995) (surveying the "idea of freedom" in both its positive and negative interpretations). See generally ALEXANDER BICKEL, THE MORALITY OF CONSENT (1975) (discussing the political and moral implications of a moral system predicated upon consent).
39. Hill, supra note 28, at 655-59 (discussing the two exculpatory prongs in criminal, tort, and contract law).
40. Aristotle called these acts performed "owing to ignorance." ARISTOTLE, supra note 28, at 964. This included both what will be described in this article as genuine cognitive defects, and justified lack of knowledge. The second category of cognitive defenses are usually thought to limit freedom of the will, whereas the first does not insofar as effective use of the rational facilities is thought to be necessary to genuine freedom of the will. In defenses based on lack of information on the other hand, the actor is typically viewed to have acted freely, but without all of the necessary information. See FEINBERG, supra note 23, at 272-80 (discussing the various ways in which impediments to the cognitive process can effect exculpation).
41. These cognitive incapacity defenses include insanity involuntary intoxication in the criminal law and various defenses reflecting a party's incapacity to contract based on youthful age or mental disability.
42. Perhaps the clearest example is embodied in the M'Naughten insanity test, whereby a defendant is excused if he does not understand the nature or the wrongfulness of his action. M'Naughten's Case, 8 Eng. Rep. 718 (1843). Similarly, intoxication claims are generally admissible to negate specific intent, though not general intent, Avey v. State, 240 A.2d 107 (1968) (admitting an intoxication claim to negate assault with intent to kill) or for a diminished capacity defense, People v. Conley, 411 P.2d 911 (1966), or to negate malice, State v. Clark, 434 P.2d 636 (1967).
43. For example, incapacity due to a party's youth is characteristically viewed as a form of substantive incapacity to reason. Yet insofar as this type of incapacity is a function of lack of experience, it may be thought of as a lack of information type of incapacity. Conversely, M'Naughten-style insanity, which prohibits its victim from reasoning effectively, may function by limiting the victim's access to information, or by skewing his assessment of this information. Intoxication may prove the most difficult problem to categorize; on one hand, the intoxicated person may be viewed to have "forgotten," temporarily, information that normally forms the basis for our judgments. On the other hand, the intoxicated individual may simply exhibit poor judgment in failing to weigh such information. Other conditions, such as bipolar syndrome, which cause vacillating moods, may have a similar effect.
44. These are situations in which the actus reus requirement in the criminal law is not met, or where an act is not volitional for purposes of intentional torts. The MODEL PENAL CODE § 2.01(1) (1962) requires a "voluntary act," and specifically excludes the following from the class of voluntary acts: reflex movements, bodily movements during unconsciousness, acts performed under hypnosis, and other acts not the product of a conscious determination by the actor. Similarly, in tort law, a volitional act is one requiring a mental element representing some motivational force, such as an intention or desire, and a corresponding bodily movement. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 8, at 34-35 (5th ed. 1984) [hereinafter PROSSER & KEETON]. This dualistic test, requiring a physical and mental element, can be traced back at least as far as the writings of John Austin in the nineteenth century, though it is evident in case law before then. See HART, supra note 1, at 97-98 (discussing Austin's view of the act requirement).
45. See, e.g., Parsons v. State, 2 So. 854 (Ala. 1887) (serving, quite possibly, as the first case to specifically recognize this defense); FEINBERG, supra note 23, at 282-83 (raising doubts about the defense, or at least the modern application of the term "irresistible").
46. The Model Penal Code provides that a murder charge may be reduced to manslaughter when the "murder is committed under extreme mental or emotional disturbance for which there is reasonable explanation or excuse." MODEL PENAL CODE § 210.3(1)(b) (1962). See Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, 466-67 (1982) (offering a limited defense of the EMED excuse).
47. See Robert Mark Carney & Brian D. Williams, Criminal Law - Premenstrual Syndrome: A Criminal Defense, 59 NOTRE DAME L. REV. 253 (1983) (discussing the medical and legal dimensions of the PMS defense).
48. See Marcia Barn, Post-Partum Psychosis: A Legal Defense to Murder, or Both?, 10 HAMLINE J. PUB. L. & POL'Y. 121 (1989) (reviewing cases and the medical evidence).
49. See LAFAVE & SCOTT, supra note 24, at 378.
50. A host of writers have rejected the "will" theory of duress. E.g., P.S. ATIYAH, PROMISES, MORALS AND LAW 23 (1981); LAFAVE & SCOTT, supra note 24, at 433. See infra Part II.C (critically examining the various attempts to rehabilitate the will theory); WERTHEIMER, supra note 3, at 29.
51. The will theory is arguably reflected in the MODEL PENAL CODE § 2.09 () and in the RESTATEMENT (SECOND) OF CONTRACTS § 492 (1981). Wertheimer argues, however, that the objective "person of ordinary firmness" standard enshrined in § 2.09 of the MPC effectively abandons the will theory. WERTHEIMER, supra note 3, at 34.
52. See Michael D. Bayles, A Concept of Coercion, in COERCION 17 (J. Roland Pennock & John W. Chapman eds., 1972) (comparing what the author calls "occurrent" and "dispositional" coercion, or physical compulsion and coercion, respectively).
53. Wertheimer, For one, argues that "[c]oerced choices are not unwilled, but they are, it may be said, against one's will." WERTHEIMER, supra note 3, at 302. As we shall see, however, it is difficult to see how any act that is voluntary is, nevertheless, against one's will. In one sense, where a person exhibits conflicting motives, any act which accords with one desire will frustrate the other. The victim of coercion may be viewed in this manner, e.g., she may have a desire not to do the coerced act, but she also has a desire, given the circumstances, to perform the act. Thus, it is difficult to see in what sense such an act is "against one's will." See infra Part II.C (discussing the seemingly insurmountable problem of answering this "problem of voluntariness").
54. E.g., FELIX OPPENHEIMER, DIMENSIONS OF FREEDOM 15-17 (1961); BAYLES, supra note 45, at 17.
55. See supra note 37 (listing sources that review the conditions for volition in tort law and the actus reus requirement in criminal law).
56. See RESTATEMENT OF TORTS (SECOND) § 2 cmt. A (1965) (discussing volition as a component of the "act" requirement).
57. Ultimately, the modern act requirement embodied in the criminal law follows Descarte's dualistic assumptions regarding the mind/body distinction. For an early elaboration of the act requirement, see John Austin, The Province of Jurisprudence Defined, Lectures XVIII-XIX. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 161-96 (1990) (attacking this Cartesian ontology and defending a behavioristic view of human acts which dispenses with mental elements). For an emergent view of mind and its implications for law, see John Lawrence Hill, Law and the Concept of the Core Self: Reconciling Naturalism and Humanism, 80 MARQ. L. REV. 289, 344-55 (1997).
58. Ultimately, the modern act requirement embodied in the criminal law follows Descarte's dualistic assumptions regarding the mind/body distinction. For an early elaboration of the act requirement, see John Austin, The Province of Jurisprudence Defined, Lectures XVIII-XIX. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 161-96 (1990) (attacking this Cartesian ontology and defending a behavioristic view of human acts which dispenses with mental elements). For an emergent view of mind and its implications for law, see John Lawrence Hill, Law and the Concept of the Core Self: Reconciling Naturalism and Humanism, 80 MARQ. L. REV. 289, 344-55 (1997).
59. Ultimately, the modern act requirement embodied in the criminal law follows Descarte's dualistic assumptions regarding the mind/body distinction. For an early elaboration of the act requirement, see John Austin, The Province of Jurisprudence Defined, Lectures XVIII-XIX. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 161-96 (1990) (attacking this Cartesian ontology and defending a behavioristic view of human acts which dispenses with mental elements). For an emergent view of mind and its implications for law, see John Lawrence Hill, Law and the Concept of the Core Self: Reconciling Naturalism and Humanism, 80 MARQ. L. REV. 289, 344-55 (1997).
60. See WERTHEIMER, supra note 3, at 9 (discussing three senses of the term "voluntary").
61. ARISTOTLE, supra note 28, at 964.
62. Id. at 965.
63. Id.
64. Aristotle recognized this problem. In the Ethica Nicomochcea, he maintains that the involuntary is defined by the presence of an external motivating force. Id. He subsequently, however, distinguishes the voluntary from that which is chosen, arguing that the voluntary "extends more widely." Id. at 967. Thus, there is voluntary but unchosen behavior for Aristotle.
65. Id. at 965.
66. E.g., where a third party, by sheer dint of greater physical strength, forces the defendant to perform some act, such as by squeezing the defendant's finger on a trigger.
67. According to Aristotle: But if some were to say that pleasant and noble objects have a compelling power, forcing us from without, all acts would be for him compulsory; for it is for these objects that all men do everything they do . . . . [I]t is absurd to make external circumstances responsible, and not oneself. ARISTOTLE, supra note 28, at 965-66. See e.g., MODEL PENAL CODE § 2.09 (1985) (permitting duress in caes where a person of "reasonable fitness" would be "unable to resist"). This language makes duress appear to excuse literally because of a kind of compulsion operating at the psychological level.
68. This move is central to the "overborne will" theory prevalent in legal analysis. See supra note 5 and accompanying text.
69. As Bayles has argued, coercion requires "an interpersonal relation involving a complex intention on the part of a coercer." BAYLES, supra note 45, at 17.
70. In other words, the overborne will theory assumes that the will exists ab initio with a set of values and preferences intact. More recent views of human personality, however, point to the fact that personality is formed, that it develops as a response to external social influences. If this view is even partially accurate, then external influence can have an even more direct role on choices - i.e., not by overwhelming the existing will, but by forming the nascent will. See generally Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 L. & INEQUALITY J. 9 (1985) (providing a classic statement of the position that social influence affects the development of the will and that this should be legally recognized through a separate line of defenses).
71. How, for example, do we distinguish coercion, which operates by threat, from inducement, which operates by its affects upon powerful desires. Indeed, this is why seduction sometimes appears "coercive." More generally, if the will is a product of social forces which "construct" what we value and desire, as some maintain, then the will of the actor is always simply a medium for transforming social forces into human action.
72. This is more likely in the contracts context. See JOHN C. CALAMARI AND JOSEPH M. PERILLO, THE LAW OF CONTRACTS §§ 9-5 and 9-6 (3d ed. 1987) (dealing with duress of goods and economic duress). Cf. LAFAVE & SCOTT, supra note 27, § 5.3(b), at 436 (threat of property damage generally not enough in criminal cases). Even here, however, the broader test of the Model Penal Code might permit a defense where a person of "ordinary firmness" would act under threat of property damage. MODEL PENAL CODE § 2.09 (1962).
73. Accord JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 277-78 (2d ed. 1995).
74. Moore, supra note 23, at 1136 (suggesting that the victim of brainwashing should be excused only if she did not have adequate time to integrate the experience into her existing belief structure).
75. Hill, supra note 50, at 377-81.
76. The point is not simply that all human actions are causally determined, as behaviorists and other determinists maintain. See, e.g., B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 24-46 (1971) (arguing that human freedom, as in freedom of the will, is illusory); John Lawrence Hill, Mill, Freud and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 SETON HALL L. REV. 92, 154-66 (1995) (discussing the implications of behaviorism for both our conceptions of personal responsibility and overall political liberty). Some determinists, those of a soft determinist orientation, argue that qualitative moral distinctions can be drawn between different types of precipitating causes of human behavior. Soft determinists include THOMAS HOBBES, LEVIATHAN 127-28 (Penguin ed. 1968) (1651); DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING 90-111 (Charles Hendel ed. 1955) (1758); JOHN STUART MILL, A SYSTEM OF LOGIC 413 (1843); A.J. AYER, LANGUAGE, TRUTH AND LOGIC (1976).
77. The point is not simply that all human actions are causally determined, as behaviorists and other determinists maintain. See, e.g., B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 24-46 (1971) (arguing that human freedom, as in freedom of the will, is illusory); John Lawrence Hill, Mill, Freud and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 SETON HALL L. REV. 92, 154-66 (1995) (discussing the implications of behaviorism for both our conceptions of personal responsibility and overall political liberty). Some determinists, those of a soft determinist orientation, argue that qualitative moral distinctions can be drawn between different types of precipitating causes of human behavior. Soft determinists include THOMAS HOBBES, LEVIATHAN 127-28 (Penguin ed. 1968) (1651); DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING 90-111 (Charles Hendel ed. 1955) (1758); JOHN STUART MILL, A SYSTEM OF LOGIC 413 (1843); A.J. AYER, LANGUAGE, TRUTH AND LOGIC (1976).
78. The point is not simply that all human actions are causally determined, as behaviorists and other determinists maintain. See, e.g., B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 24-46 (1971) (arguing that human freedom, as in freedom of the will, is illusory); John Lawrence Hill, Mill, Freud and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 SETON HALL L. REV. 92, 154-66 (1995) (discussing the implications of behaviorism for both our conceptions of personal responsibility and overall political liberty). Some determinists, those of a soft determinist orientation, argue that qualitative moral distinctions can be drawn between different types of precipitating causes of human behavior. Soft determinists include THOMAS HOBBES, LEVIATHAN 127-28 (Penguin ed. 1968) (1651); DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING 90-111 (Charles Hendel ed. 1955) (1758); JOHN STUART MILL, A SYSTEM OF LOGIC 413 (1843); A.J. AYER, LANGUAGE, TRUTH AND LOGIC (1976).
79. The point is not simply that all human actions are causally determined, as behaviorists and other determinists maintain. See, e.g., B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 24-46 (1971) (arguing that human freedom, as in freedom of the will, is illusory); John Lawrence Hill, Mill, Freud and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 SETON HALL L. REV. 92, 154-66 (1995) (discussing the implications of behaviorism for both our conceptions of personal responsibility and overall political liberty). Some determinists, those of a soft determinist orientation, argue that qualitative moral distinctions can be drawn between different types of precipitating causes of human behavior. Soft determinists include THOMAS HOBBES, LEVIATHAN 127-28 (Penguin ed. 1968) (1651); DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING 90-111 (Charles Hendel ed. 1955) (1758); JOHN STUART MILL, A SYSTEM OF LOGIC 413 (1843); A.J. AYER, LANGUAGE, TRUTH AND LOGIC (1976).
80. The point is not simply that all human actions are causally determined, as behaviorists and other determinists maintain. See, e.g., B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 24-46 (1971) (arguing that human freedom, as in freedom of the will, is illusory); John Lawrence Hill, Mill, Freud and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 SETON HALL L. REV. 92, 154-66 (1995) (discussing the implications of behaviorism for both our conceptions of personal responsibility and overall political liberty). Some determinists, those of a soft determinist orientation, argue that qualitative moral distinctions can be drawn between different types of precipitating causes of human behavior. Soft determinists include THOMAS HOBBES, LEVIATHAN 127-28 (Penguin ed. 1968) (1651); DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING 90-111 (Charles Hendel ed. 1955) (1758); JOHN STUART MILL, A SYSTEM OF LOGIC 413 (1843); A.J. AYER, LANGUAGE, TRUTH AND LOGIC (1976).
81. The point is not simply that all human actions are causally determined, as behaviorists and other determinists maintain. See, e.g., B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 24-46 (1971) (arguing that human freedom, as in freedom of the will, is illusory); John Lawrence Hill, Mill, Freud and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 SETON HALL L. REV. 92, 154-66 (1995) (discussing the implications of behaviorism for both our conceptions of personal responsibility and overall political liberty). Some determinists, those of a soft determinist orientation, argue that qualitative moral distinctions can be drawn between different types of precipitating causes of human behavior. Soft determinists include THOMAS HOBBES, LEVIATHAN 127-28 (Penguin ed. 1968) (1651); DAVID HUME, AN INQUIRY CONCERNING HUMAN UNDERSTANDING 90-111 (Charles Hendel ed. 1955) (1758); JOHN STUART MILL, A SYSTEM OF LOGIC 413 (1843); A.J. AYER, LANGUAGE, TRUTH AND LOGIC (1976).
82. See Hill, supra note 50, at 44, 299-303 (discussing this problem as it relates to physiological conditions, physiologically induced emotional states, environmentally caused physical states, and conditions the status of which is unclear in that they can be viewed either as physical or mental states).
83. In this respect, the liberal tradition can be traced to Hobbes, who argued in favor of a negative conception of freedom, i.e., that freedom consists in the absence of external constraint. THOMAS HOBBES, LEVIATHAN, CH. 21 (C.B. MacPherson, ed. 1981) (1651). See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (1969) (discussing the positive and negative distinction and defending the negative conception of freedom). The negative conception of liberty is linked to the view that only threats can coerce via the assumption that offers only make additional choices possible, and thus can never constitute an external obstacle or constraint. See generally ROBERT NOZICK, Coercion, in PHILOSOPHY, SCIENCE AND METHOD (Ernest Nagel ed. 1972). The classical liberal assumption, of course, is that internal motivating forces, such as strong desires or emotions, cannot be viewed as creating an external obstacle because they are, by definition, internal. Interestingly, however, we might ask what makes threats any more freedom-limiting than offers. If, for example, what makes a threat compelling is that it motivates by fear, this is as much an internal motivating force as is desire, and so it is not freedom-limiting in the negative sense. On the other hand, if the liberal argues that threats limit freedom by reducing external options, then he is faced with two problems. First, many ordinary events limit our external options in an everyday sense. Yet the liberal does not view all such events as freedom-limiting. If the liberal introduces some qualitative distinction - i.e., that external options must be reduced in some extreme fashion - then this raises questions about how to draw the line and why only extreme cases should be freedom-limiting. Second, and perhaps more fundamentally, it is not immediately clear how reducing external options renders one unfree in pursuing the remaining options, at least on a liberal account of negative freedom as absence of constraint. See HAROLD D. LASWELL & ABRAHAM KAPLAN, POWER AND SOCIETY 97 (1950) (arguing that offers coerce); VIRGINIA HELD, Coercion and Coercive Offers, in COERCION (J. Roland Pennock & John W. Chapman 1972) (same).
84. In this respect, the liberal tradition can be traced to Hobbes, who argued in favor of a negative conception of freedom, i.e., that freedom consists in the absence of external constraint. THOMAS HOBBES, LEVIATHAN, CH. 21 (C.B. MacPherson, ed. 1981) (1651). See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (1969) (discussing the positive and negative distinction and defending the negative conception of freedom). The negative conception of liberty is linked to the view that only threats can coerce via the assumption that offers only make additional choices possible, and thus can never constitute an external obstacle or constraint. See generally ROBERT NOZICK, Coercion, in PHILOSOPHY, SCIENCE AND METHOD (Ernest Nagel ed. 1972). The classical liberal assumption, of course, is that internal motivating forces, such as strong desires or emotions, cannot be viewed as creating an external obstacle because they are, by definition, internal. Interestingly, however, we might ask what makes threats any more freedom-limiting than offers. If, for example, what makes a threat compelling is that it motivates by fear, this is as much an internal motivating force as is desire, and so it is not freedom-limiting in the negative sense. On the other hand, if the liberal argues that threats limit freedom by reducing external options, then he is faced with two problems. First, many ordinary events limit our external options in an everyday sense. Yet the liberal does not view all such events as freedom-limiting. If the liberal introduces some qualitative distinction - i.e., that external options must be reduced in some extreme fashion - then this raises questions about how to draw the line and why only extreme cases should be freedom-limiting. Second, and perhaps more fundamentally, it is not immediately clear how reducing external options renders one unfree in pursuing the remaining options, at least on a liberal account of negative freedom as absence of constraint. See HAROLD D. LASWELL & ABRAHAM KAPLAN, POWER AND SOCIETY 97 (1950) (arguing that offers coerce); VIRGINIA HELD, Coercion and Coercive Offers, in COERCION (J. Roland Pennock & John W. Chapman 1972) (same).
85. In this respect, the liberal tradition can be traced to Hobbes, who argued in favor of a negative conception of freedom, i.e., that freedom consists in the absence of external constraint. THOMAS HOBBES, LEVIATHAN, CH. 21 (C.B. MacPherson, ed. 1981) (1651). See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (1969) (discussing the positive and negative distinction and defending the negative conception of freedom). The negative conception of liberty is linked to the view that only threats can coerce via the assumption that offers only make additional choices possible, and thus can never constitute an external obstacle or constraint. See generally ROBERT NOZICK, Coercion, in PHILOSOPHY, SCIENCE AND METHOD (Ernest Nagel ed. 1972). The classical liberal assumption, of course, is that internal motivating forces, such as strong desires or emotions, cannot be viewed as creating an external obstacle because they are, by definition, internal. Interestingly, however, we might ask what makes threats any more freedom-limiting than offers. If, for example, what makes a threat compelling is that it motivates by fear, this is as much an internal motivating force as is desire, and so it is not freedom-limiting in the negative sense. On the other hand, if the liberal argues that threats limit freedom by reducing external options, then he is faced with two problems. First, many ordinary events limit our external options in an everyday sense. Yet the liberal does not view all such events as freedom-limiting. If the liberal introduces some qualitative distinction - i.e., that external options must be reduced in some extreme fashion - then this raises questions about how to draw the line and why only extreme cases should be freedom-limiting. Second, and perhaps more fundamentally, it is not immediately clear how reducing external options renders one unfree in pursuing the remaining options, at least on a liberal account of negative freedom as absence of constraint. See HAROLD D. LASWELL & ABRAHAM KAPLAN, POWER AND SOCIETY 97 (1950) (arguing that offers coerce); VIRGINIA HELD, Coercion and Coercive Offers, in COERCION (J. Roland Pennock & John W. Chapman 1972) (same).
86. In this respect, the liberal tradition can be traced to Hobbes, who argued in favor of a negative conception of freedom, i.e., that freedom consists in the absence of external constraint. THOMAS HOBBES, LEVIATHAN, CH. 21 (C.B. MacPherson, ed. 1981) (1651). See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (1969) (discussing the positive and negative distinction and defending the negative conception of freedom). The negative conception of liberty is linked to the view that only threats can coerce via the assumption that offers only make additional choices possible, and thus can never constitute an external obstacle or constraint. See generally ROBERT NOZICK, Coercion, in PHILOSOPHY, SCIENCE AND METHOD (Ernest Nagel ed. 1972). The classical liberal assumption, of course, is that internal motivating forces, such as strong desires or emotions, cannot be viewed as creating an external obstacle because they are, by definition, internal. Interestingly, however, we might ask what makes threats any more freedom-limiting than offers. If, for example, what makes a threat compelling is that it motivates by fear, this is as much an internal motivating force as is desire, and so it is not freedom-limiting in the negative sense. On the other hand, if the liberal argues that threats limit freedom by reducing external options, then he is faced with two problems. First, many ordinary events limit our external options in an everyday sense. Yet the liberal does not view all such events as freedom-limiting. If the liberal introduces some qualitative distinction - i.e., that external options must be reduced in some extreme fashion - then this raises questions about how to draw the line and why only extreme cases should be freedom-limiting. Second, and perhaps more fundamentally, it is not immediately clear how reducing external options renders one unfree in pursuing the remaining options, at least on a liberal account of negative freedom as absence of constraint. See HAROLD D. LASWELL & ABRAHAM KAPLAN, POWER AND SOCIETY 97 (1950) (arguing that offers coerce); VIRGINIA HELD, Coercion and Coercive Offers, in COERCION (J. Roland Pennock & John W. Chapman 1972) (same).
87. In this respect, the liberal tradition can be traced to Hobbes, who argued in favor of a negative conception of freedom, i.e., that freedom consists in the absence of external constraint. THOMAS HOBBES, LEVIATHAN, CH. 21 (C.B. MacPherson, ed. 1981) (1651). See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (1969) (discussing the positive and negative distinction and defending the negative conception of freedom). The negative conception of liberty is linked to the view that only threats can coerce via the assumption that offers only make additional choices possible, and thus can never constitute an external obstacle or constraint. See generally ROBERT NOZICK, Coercion, in PHILOSOPHY, SCIENCE AND METHOD (Ernest Nagel ed. 1972). The classical liberal assumption, of course, is that internal motivating forces, such as strong desires or emotions, cannot be viewed as creating an external obstacle because they are, by definition, internal. Interestingly, however, we might ask what makes threats any more freedom-limiting than offers. If, for example, what makes a threat compelling is that it motivates by fear, this is as much an internal motivating force as is desire, and so it is not freedom-limiting in the negative sense. On the other hand, if the liberal argues that threats limit freedom by reducing external options, then he is faced with two problems. First, many ordinary events limit our external options in an everyday sense. Yet the liberal does not view all such events as freedom-limiting. If the liberal introduces some qualitative distinction - i.e., that external options must be reduced in some extreme fashion - then this raises questions about how to draw the line and why only extreme cases should be freedom-limiting. Second, and perhaps more fundamentally, it is not immediately clear how reducing external options renders one unfree in pursuing the remaining options, at least on a liberal account of negative freedom as absence of constraint. See HAROLD D. LASWELL & ABRAHAM KAPLAN, POWER AND SOCIETY 97 (1950) (arguing that offers coerce); VIRGINIA HELD, Coercion and Coercive Offers, in COERCION (J. Roland Pennock & John W. Chapman 1972) (same).
88. Threats and desires may both motivate in an equally effective manner, but desires are more "internal" in the sense that they reflect the actor's own values and dispositions. The problem with this is that many acts can be characterized as resulting from either a desire or a fear - e.g., the fear of death or the desire to preserve one's life.
89. HELD, supra note 69.
90. NOZICK, supra note 69, at 452. First, even in some non-threat situation, it might be legitimate to say the victim had no choice. Id. at 447. Second, there are some offers which are closely tied to threats, as where the coercer offers not to turn over to the police information that the coerced has committed a crime. Id. at 452. Similarly, someone might offer not to assist a coercer in bringing about a threatened consequence. Id. Finally, sometimes offers are so attractive that a person cannot reasonably be expected not to go along with it. Id. at 460.
91. Id. at 447; Dressler, supra note 22, at 1337 (noting that the offer/threat dichotomy relates to the fear/desire distinction, e.g., the robber tempts the victim with her life).
92. NOZICK, supra note 69, at 447.
93. Dressler, supra note 22, at 1337.
94. NOZICK, supra note 69.
95. Id. at 459.
96. "[A] person who does something because of threats does not perform a fully voluntary action, whereas this is normally not the case with someone who does something because of offers." Id.
97. Id.
98. Id.
99. Harry Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. PHIL. 5 (1971).
100. Gary Watson, Free Agency, 72 J. PHIL 205 (1975).
101. CHARLES TAYLOR, WHAT'S WRONG WITH NEGATIVE FREEDOM, PHILOSOPHICAL PAPERS (1992).
102. The empiricist view of freedom is that which is associated with negative liberty or freedom as non-constraint. Thomas Hobbes was the original defender of this view. THOMAS HOBBES, LEVIATHAN 189 (C.B. MacPherson ed. 1968) (1651). A person is free if he is not prevented from acting in accordance with his desire, choice or preference. It tends to equate the free with the voluntary, as this term is used in conventional legal doctrine. This view is most closely associated with the empiricist tradition because it approaches freedom from an external of behavioristic standpoint. Most fundamentally the empiricist view rejects the notion that there is a metaphysical entity known as the will which mediates between competing desires, picking the best or most rational course of action. On crude empiricist accounts, there is nothing but desire, and all acts are entirely desire-driven. Decision-making is nothing but the process by which a more powerful desire wins out over a less powerful desire. See, e.g., David Hume, for a slightly more sophisticated version of this model. In contrast, rationalist accounts argue that reason or the rational will mediates between competing impulses. Acts can fail to be free when this reason-based process is short-circuited, even where the act is voluntary. One of the most interesting differences between these two accounts is that the empiricist tends to reject the idea of weakness of will. We always act, on the empiricist account, in accordance with our strongest desire. Thus, coercion, seduction, provocation and other potentially exculpatory conditions are treated differently by rationalists and empiricists.
103. Professor Harry Frankfurt adopts the distinction between first and second-order mental states. First-order mental states are thoughts, desires, beliefs and other intentional mental states that have as their objects other things - e.g. a desire for fame, a belief in one's abilities, etc. Second-order mental states are mental states about other mental states. According to Frankfurt, autonomy requires that our first-order states comport with out second-order states. For example, if one has a first-order desire for tobacco and a second-order desire that he does not desire tobacco, the subject's personality is in conflict and his act is not truly free. Frankfurt, supra note 81, at 210.
104. WERTHEIMER, supra note 3, at 301. On this view, B acts voluntarily when B succumbs to a proposal that A has a right to make, even if it is one which B finds unattractive and would prefer not to receive. Why? Because B himself is committed to the principles which grant A the right to make the proposal. On the other hand, B acts involuntarily when A makes an immoral proposal (a moral baseline threat) because A's proposal attempts to get B to act contrary to his deep preference that he not be made to act in response to immoral proposals.
105. Wertheimer waffles here on whether the defining principles are those the victim does or should affirm. At one point Wertheimer argues that it is the principles to which the victim is committed, and not the way he understands them. Id. at 302. His discussion of "wantons" and egoists appears to confirm this. Id. at 303. On the other hand, he suggests that the defining principles are those which the victims should accept. Id. at 301. Both positions have problems, as I argue in the next few paragraphs.
106. See id. at 301 (discussing the choice prong on this analysis); id. at 302 (discussing the proposal prong).
107. Id. at 302.
108. See NOZICK, supra note 69, at 459.
109. This is also likely to be true in the situation where one does not understand the implications of the principles he or she endorses, believing that they have been violated when they in fact have not. See WERTHEIMER, supra note 3, at 302-03.
110. Id. at 305.
111. As Wertheimer points out, if there are volitional but not voluntary acts, one must demonstrate how some conscious motivation can nevertheless be involuntary. Id. at 304.
112. Dressler, supra note 22, at 1365. See also HART, supra note 1, at 45 (arguing that mistake, coercion, ignorance, and undue influence, among others, are excused because the individual moved by these conditions is not exercising "a real choice").
113. That a particular person felt an extreme amount of psychological pressure is of course a claim that can only be verified on a first person basis. Nevertheless, subjective experience is an empirical fact in the sense that the subject had the experience. Nor does saying that subjective states are empirical facts commit us to mind/body dualism or any other metaphysical theory. Indeed, subjective states may one day be completely explainable in terms of neural states, which are verifiable by third parties. See RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE CH. 1 (1979) (discussing the philosophical status of mental states and a skeptical argument that the mind/body problem is itself a non-problem).
114. See HEMPL, supra note 8, at 22-23 (discussing the requirements of "observation sentences").
115. DAVID HUME, A TREATISE OF HUMAN NATURE 203-04 (Palls Ardal ed., 1972) (1740).
116. WERTHEIMER, supra note 3, at 7.
117. Sometimes coerciveness is viewed as being a function of numerous factors that occur in varying degrees and combinations. This permits a ranking of different situations along a continuum. One polar extreme is marked by the voluntariness or freedom of the act and the other by the state of being coerced.
118. Dressler, supra note 22, at 1365.
119. Id.
120. Id. at 1367 (emphasis omitted).
121. See supra notes 51-56 and accompanying text (discussing a similar problem with the distinction between internal and external causes of behavior).
122. It was Austin, in his lectures on jurisprudence, who first delineated the mental and physical dimensions of an act. In doing so, he followed the assumptions of Cartesian dualism in distinguishing the mental from the physical and in assuming a causal relationship from mental to physical states. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1832). See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 98-99 (1968) (discussing Austin's act requirement).
123. It was Austin, in his lectures on jurisprudence, who first delineated the mental and physical dimensions of an act. In doing so, he followed the assumptions of Cartesian dualism in distinguishing the mental from the physical and in assuming a causal relationship from mental to physical states. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1832). See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 98-99 (1968) (discussing Austin's act requirement).
124. Dressler, supra note 22, at 1367.
125. WERTHEIMER, supra note 3, at 9.
126. See id. at 166.
127. See id. at 29.
128. In the most general sense, acts are excused when the actor is not responsible; they are justified when he is not to be blamed because the act is socially condoned. See infra Part IV.B (discussing this issue under the utilitarian account).
129. See infra notes 173-76 and accompanying text (discussing the abrogation of the common law rule that barred the use of duress as a defense in murder cases, along with other situations involving great social harms for which duress may provide a defense).
130. Agent-neutral justifications are those the rules of which can be formulated in general form without referring to the individual who is the subject of them, while agent-relative justification takes into account the subjective beliefs, values and preferences of the individual. WERTHEIMER, supra note 3, at 166. The distinction is discussed in THOMAS NAGEL, THE VIEW FROM NOWHERE 158-59 (1986).
131. The drafters of the Model Penal Code recognize the value of the agent-neutral approach. See MODEL PENAL CODE § 3.02(1)(a) (1962) (requiring that the harm which the actor sought to avoid be greater than the harm produced in the act).
132. WERTHEIMER, supra note 3, at 107.
133. Professor Wertheimer made this point in conversation at a symposium on Coercion and Exploitation at the University of Denver School of Law, Denver, Co. (Mar. 14-15, 1997).
134. See supra notes 69-82 and accompanying text (discussing the internal struggle for actors deciding, voluntarily and involuntarily, to accept offers from others).
135. In these cases, the objective standard narrows to represent an objective standard for that class of persons. For example, children are held to the standard of a reasonable child of similar age, experience, and education.
136. Part of what renders Wertheimer's account initially attractive is the fact that coerced actors usually do maximize the good or reduce the harm by surrendering to the threatened evil. WERTHEIMER, supra note 3; Cf. DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 64, at 275 (arguing that not every coerced act involves a lesser-evils situation). But this is because the threat of some greater harm is necessary as a motivational factor in compelling the actor to comply. It is anomalous to view the coerced actor as one who rationally weighs the competing possibilities, as does the person acting from necessity. The coerced actor acts primarily from fear, love, grief, desperation, etc. The production of good or reduction of evil is a byproduct of their act, while it usually may be thought to directly motivate the act in the case of necessity.
137. WERTHEIMER, supra note 3, at 30.
138. See id. at 30-39 (discussing the moralization of the choice and proposal prongs).
139. See supra notes 7-18 and accompanying text.
140. WERTHEIMER, supra note 3, at 30-46 (discussing the moralized conditions for duress).
141. WERTHEIMER, supra note 3, at 184.
142. Id. at 184-85.
143. Id. at 181.
144. Id. at 181-82.
145. Id. at 182.
146. WERTHEIMER, supra note 3, at 181.
147. Id.
148. WERTHEIMER, supra note 3, at 182.
149. Id.
150. Both utilitarianism and deontology are moral realist accounts in that each holds that moral propositions can be understood as something more than subjective expressions of the preferences of the speaker or her culture. In the case of utilitarianism, moral propositions have an empirical grounding in consequences relating to the maximization of happiness, pleasure or preferences. Deontological thought, on the other hand, is grounded upon principles of reason. Classical Kantian deontology purports to be purely rationalistic insofar as it holds that moral propositions can be known in an a priori manner. See JOHN LAWRENCE HILL, THE CASE FOR VEGETARIANISM 2-7 (1996) (comparing moral realism and moral relativism); id. at 13-23 (providing an overview of utilitarian thought and objections to it); infra notes 118-27 (discussing utilitarian thought). For a recent defense of deontological thought, see generally ALAN GEWIRTH, REASON AND MORALITY (1978) (attempting to generate a deontological moral theory from the logic and from the generic characteristics of action). For the classic deontological statement, see Immanuel Kant, Grounding for the Metaphysics of Morals, in IMMANUEL KANT, ETHICAL PHILOSOPHY (James W. Ellington trans., 1983) (arguing that morality cannot be predicated upon contingent empirical phenomena).
151. Both utilitarianism and deontology are moral realist accounts in that each holds that moral propositions can be understood as something more than subjective expressions of the preferences of the speaker or her culture. In the case of utilitarianism, moral propositions have an empirical grounding in consequences relating to the maximization of happiness, pleasure or preferences. Deontological thought, on the other hand, is grounded upon principles of reason. Classical Kantian deontology purports to be purely rationalistic insofar as it holds that moral propositions can be known in an a priori manner. See JOHN LAWRENCE HILL, THE CASE FOR VEGETARIANISM 2-7 (1996) (comparing moral realism and moral relativism); id. at 13-23 (providing an overview of utilitarian thought and objections to it); infra notes 118-27 (discussing utilitarian thought). For a recent defense of deontological thought, see generally ALAN GEWIRTH, REASON AND MORALITY (1978) (attempting to generate a deontological moral theory from the logic and from the generic characteristics of action). For the classic deontological statement, see Immanuel Kant, Grounding for the Metaphysics of Morals, in IMMANUEL KANT, ETHICAL PHILOSOPHY (James W. Ellington trans., 1983) (arguing that morality cannot be predicated upon contingent empirical phenomena).
152. Both utilitarianism and deontology are moral realist accounts in that each holds that moral propositions can be understood as something more than subjective expressions of the preferences of the speaker or her culture. In the case of utilitarianism, moral propositions have an empirical grounding in consequences relating to the maximization of happiness, pleasure or preferences. Deontological thought, on the other hand, is grounded upon principles of reason. Classical Kantian deontology purports to be purely rationalistic insofar as it holds that moral propositions can be known in an a priori manner. See JOHN LAWRENCE HILL, THE CASE FOR VEGETARIANISM 2-7 (1996) (comparing moral realism and moral relativism); id. at 13-23 (providing an overview of utilitarian thought and objections to it); infra notes 118-27 (discussing utilitarian thought). For a recent defense of deontological thought, see generally ALAN GEWIRTH, REASON AND MORALITY (1978) (attempting to generate a deontological moral theory from the logic and from the generic characteristics of action). For the classic deontological statement, see Immanuel Kant, Grounding for the Metaphysics of Morals, in IMMANUEL KANT, ETHICAL PHILOSOPHY (James W. Ellington trans., 1983) (arguing that morality cannot be predicated upon contingent empirical phenomena).
153. Where the deontolgist will focus upon either the structure of an act or the motive underlying it, utilitarian thought is more "empirical" in that it looks specifically to the real world results of an action. For example, motive is important to the deontologist insofar as it elucidates the nature of the act by reference to the reason underlying it. The same act performed from different motives will merit radically different assessments from the deontologist. For the utilitarian, on the other hand, motive is of secondary importance; it is relevant only insofar as it indicates likely future conduct on the part of the actor, which might be relevant to whether the actor should be punished for the act. See JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION CH. X (1996) (discussing the relevance of motives in utilitarian thought). This emphasis upon the consequences of an act have led some to observe that utilitarianism makes the right derivative of the good, while for the deontologist, right is primary and good is derivative. RAWLS, supra note 9, at 25 (arguing that all "teleological" theories, especially utilitarianism, define the good independently of the right).
154. Utilitarian moral argument takes the form of a simple syllogism in which the major premise is some statement of the (moral) principle of utility, where utility is usually defined in some empirically discoverable manner. The minor (empirical) premise specifies some course of action that will result in the consequences with the greatest utility. Thus, the vision of utilitarianism as a "moral science," as in Bentham's idea of the "hedonic calculus," conceives of social and political policy as being conducted by social planners who employ social scientists to determine the likely consequences of various courses of legislative action. In this manner, morality can be reduced to a social science. See BENTHAM, supra note 132, at CH. IV (discussing the hedonic calculus and its application to social policy).
155. See J.J.C. Smart, Utilitarianism, in THE ENCYCLOPEDIA OF PHILOSOPHY (Paul Edwards ed., 1969) (discussing the history and critical analysis of utilitarian thought). The author notes that, while Hume is sometimes considered a utilitarian, he uses the term not so much in a prescriptive or even a descriptive way, but in an explanatory way, e.g., to explain why we pick out certain character traits as good. Id. at 208. For this reason, the author argues that it is "not advisable" to classify Hume as a normative utilitarian. Id.
156. BENTHAM, supra note 132, at introduction. Bentham applied utilitarianism theory to such diverse areas as the relevance of the actors state of mind, id. at CH. XIII, sec. 11, the problems of justification and excuse, id. at CH. XIII, the proportionality of punishment to offenses, id. at CH. XIV, the type of punishment warranted for various offenses, id. at CH. XV, and a utilitarian analysis of categories of offense, id. at CH. XVI.
157. Bentham equates pleasure with happiness. Indeed, according to Bentham, happiness is the ultimate, systematic unifying value. BENTHAM, supra note 132, at CH. V (discussing the types of pleasures and pains). This has two implications. First, all values can be reduced to the pain/pleasure continuum. Id. at 12. Freedom, friendship, love, fulfillment, passion - each have moral relevance for the utilitarian only insofar as they embody, or conduce to happiness. Second, there is no other competing value. The appeal to happiness defines, justifies, and exhausts the moral universe. See HILL, supra note 131, at 16-18 (discussing the problems raised by a systemic appeal to happiness, including the problems of comparing competing outcomes in term of happiness, the problem of quantifying happiness and the more fundamental problem that happiness does not appear to exhaust the universe of moral values after all).
158. The Greatest Happiness Principle entails that it is everyone's happiness that counts. This leads to radically egalitarian consequences insofar as the principle treats each person's experience of pleasure the same. This is egalitarian in two distinct senses. First, it is irrelevant from the standpoint of utility which acts give the person pleasure - whether it is pushpin or poetry. If one person finds as much (or more) pleasure in watching Jim Carey films as in attending the opera, this will be given equal (or greater) consideration, accordingly. Second, it is egalitarian in that it is irrelevant who experiences the pleasure. Wealth, social class or other indicia of socioeconomic success are irrelevant to the issue of utility because one person's happiness is as good as the next person's. The only limitations on this principle are the differences in the subjects' capacities to experience pleasure and the good which the person might in turn have for others.
159. See infra Part V.C (discussing the "problem of justice," which is a function of the social aspect of utilitarian theory).
160. John Stuart Mill maintained that there were higher and lower pleasures, thus introducing a qualitative element into the utilitarian calculus. John Stuart Mill, Utilitarianism, in ON LIBERTY AND OTHER ESSAYS 138 (John Gray ed., 1991) ("[S]ome kinds of pleasure are more desirable and more valuable than others."). Mill made the move in response to the criticism that classical utilitarianism is a base theory because it holds that all pleasures differed only in terms of quantity, and that quantitative judgments could not be made about differing pleasures. He thus arguably introduced an elitist element into the formerly egalitarian approach. The price paid for this move was that Mill could not claim the same quantitative, mathematical, or scientific appeal for utilitarianism. For example, because the different qualitative levels of pleasure are irreducible in that they cannot be cashed out in terms of some more fundamental concept, there is no way of weighing a lesser quantity of a higher level pleasure with a greater quantity of a lower pleasure. This appears to commit Mill to some form of intuitionistic weighing of goods. See G.E. MOORE, PRINCIPE ETHICA (1903) (presenting a defense of ideal utilitarianism, the view that goodness and badness inhere in a state of consciousness produced by the consequences of actions, but that this goodness or badness is not exhausted by the pleasantness or unpleasantness of the state of consciousness. Thus knowledge, beauty and other aesthetic qualities possess independent significance). For a classic statement of preference utilitarianism as it influenced economic schools of thought, see LUDWIG VON MISES, HUMAN ACTION 3 (3d ed. 1949). Choosing determines all human decisions. In making his choice, man chooses not only between various material things and services. All human values are offered for option. All ends and all means, both material and ideal issues, the sublime and the base, the noble and the ignoble, are ranged in a single row and subjected to a decision that picks out one and sets aside another.
161. John Stuart Mill maintained that there were higher and lower pleasures, thus introducing a qualitative element into the utilitarian calculus. John Stuart Mill, Utilitarianism, in ON LIBERTY AND OTHER ESSAYS 138 (John Gray ed., 1991) ("[S]ome kinds of pleasure are more desirable and more valuable than others."). Mill made the move in response to the criticism that classical utilitarianism is a base theory because it holds that all pleasures differed only in terms of quantity, and that quantitative judgments could not be made about differing pleasures. He thus arguably introduced an elitist element into the formerly egalitarian approach. The price paid for this move was that Mill could not claim the same quantitative, mathematical, or scientific appeal for utilitarianism. For example, because the different qualitative levels of pleasure are irreducible in that they cannot be cashed out in terms of some more fundamental concept, there is no way of weighing a lesser quantity of a higher level pleasure with a greater quantity of a lower pleasure. This appears to commit Mill to some form of intuitionistic weighing of goods. See G.E. MOORE, PRINCIPE ETHICA (1903) (presenting a defense of ideal utilitarianism, the view that goodness and badness inhere in a state of consciousness produced by the consequences of actions, but that this goodness or badness is not exhausted by the pleasantness or unpleasantness of the state of consciousness. Thus knowledge, beauty and other aesthetic qualities possess independent significance). For a classic statement of preference utilitarianism as it influenced economic schools of thought, see LUDWIG VON MISES, HUMAN ACTION 3 (3d ed. 1949). Choosing determines all human decisions. In making his choice, man chooses not only between various material things and services. All human values are offered for option. All ends and all means, both material and ideal issues, the sublime and the base, the noble and the ignoble, are ranged in a single row and subjected to a decision that picks out one and sets aside another.
162. John Stuart Mill maintained that there were higher and lower pleasures, thus introducing a qualitative element into the utilitarian calculus. John Stuart Mill, Utilitarianism, in ON LIBERTY AND OTHER ESSAYS 138 (John Gray ed., 1991) ("[S]ome kinds of pleasure are more desirable and more valuable than others."). Mill made the move in response to the criticism that classical utilitarianism is a base theory because it holds that all pleasures differed only in terms of quantity, and that quantitative judgments could not be made about differing pleasures. He thus arguably introduced an elitist element into the formerly egalitarian approach. The price paid for this move was that Mill could not claim the same quantitative, mathematical, or scientific appeal for utilitarianism. For example, because the different qualitative levels of pleasure are irreducible in that they cannot be cashed out in terms of some more fundamental concept, there is no way of weighing a lesser quantity of a higher level pleasure with a greater quantity of a lower pleasure. This appears to commit Mill to some form of intuitionistic weighing of goods. See G.E. MOORE, PRINCIPE ETHICA (1903) (presenting a defense of ideal utilitarianism, the view that goodness and badness inhere in a state of consciousness produced by the consequences of actions, but that this goodness or badness is not exhausted by the pleasantness or unpleasantness of the state of consciousness. Thus knowledge, beauty and other aesthetic qualities possess independent significance). For a classic statement of preference utilitarianism as it influenced economic schools of thought, see LUDWIG VON MISES, HUMAN ACTION 3 (3d ed. 1949). Choosing determines all human decisions. In making his choice, man chooses not only between various material things and services. All human values are offered for option. All ends and all means, both material and ideal issues, the sublime and the base, the noble and the ignoble, are ranged in a single row and subjected to a decision that picks out one and sets aside another.
163. Thus, I rule out so-called "egoistic utilitarianism," the doctrine that holds that, for any act, the right thing to do is that which maximizes the subject's own favorable consequences. See Smart, supra note 134, at 207 (distinguishing egoistic and universalistic utilitarianism).
164. Thus utilitarianism, at least in its classical form, appears to require that the interests of all sentient beings capable of experiencing pain and pleasure be taken into account. This would include non-human animals. See Mill, supra note 139, at 40-46 (discussing the utilitarian argument for protection of animals). See generally PETER SINGER, ANIMAL LIBERATION (1975) (explaining systematically for the first time the implications of utilitarianism for the animal rights cause).
165. See BENTHAM, supra note 132.
166. The calculus is, of course, more complicated in its application. In calculating the amount of deterrence produced by the threat of a certain punishment, it is necessary to calculate the probability of apprehension, which will factor into the rational criminal's decision concerning whether to commit a crime. Id. at 38-41. Even this, however, is a simple calculus compared to more sophisticated attempts by economists, among others, to assess the economics of crime. Other factors include secondary and long-term considerations such as effects on the populace of criminalizing (or de-criminalizing) certain acts. For an interesting example of this, see Lars Ericcson, Charges Against Prostitution, 90 ETHICS 335 (1980) (discussing the possibility that de-criminalizing prostitution might lead to diminishing returns by de-valuing the sexual experience). Similarly, utilitarians must look at the effects, in terms of net utility, of publicly adopting utilitarian modes of analysis. See Louis Michael Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315 (1984) (arguing that utilitarianism may undercut the criminal's own sense of individual responsibility). Thus, utilitarian analysis is inherently dynamic and self-reflexive.
167. The calculus is, of course, more complicated in its application. In calculating the amount of deterrence produced by the threat of a certain punishment, it is necessary to calculate the probability of apprehension, which will factor into the rational criminal's decision concerning whether to commit a crime. Id. at 38-41. Even this, however, is a simple calculus compared to more sophisticated attempts by economists, among others, to assess the economics of crime. Other factors include secondary and long-term considerations such as effects on the populace of criminalizing (or de-criminalizing) certain acts. For an interesting example of this, see Lars Ericcson, Charges Against Prostitution, 90 ETHICS 335 (1980) (discussing the possibility that de-criminalizing prostitution might lead to diminishing returns by de-valuing the sexual experience). Similarly, utilitarians must look at the effects, in terms of net utility, of publicly adopting utilitarian modes of analysis. See Louis Michael Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315 (1984) (arguing that utilitarianism may undercut the criminal's own sense of individual responsibility). Thus, utilitarian analysis is inherently dynamic and self-reflexive.
168. Bentham places primary emphasis on the role of deterrence. BENTHAM, supra note 132, at CH. XIV. Modern utilitarians have registered contemporary uncertainty regarding the extent to which crime is deferrable. See Richard B. Brandt, ETHICAL THEORY (1958), reprinted in Richard B. Brandt, The Utilitarian Theory of Criminal Punishment, in MORALITY AND MORAL CONTROVERSIES 410 (John Arthur ed., 1981). Acts committed in the heat of passion, as well as those undertaken without careful consideration of the possibility of punishment, might not be deterrable. Brandt notes that criminologists today tend to view more crime as falling into these categories than Bentham appeared to believe. Id. at 414. Nevertheless, deterrence is still the centerpiece of the utilitarian case for punishment. Id. at 414-18.
169. Bentham places primary emphasis on the role of deterrence. BENTHAM, supra note 132, at CH. XIV. Modern utilitarians have registered contemporary uncertainty regarding the extent to which crime is deferrable. See Richard B. Brandt, ETHICAL THEORY (1958), reprinted in Richard B. Brandt, The Utilitarian Theory of Criminal Punishment, in MORALITY AND MORAL CONTROVERSIES 410 (John Arthur ed., 1981). Acts committed in the heat of passion, as well as those undertaken without careful consideration of the possibility of punishment, might not be deterrable. Brandt notes that criminologists today tend to view more crime as falling into these categories than Bentham appeared to believe. Id. at 414. Nevertheless, deterrence is still the centerpiece of the utilitarian case for punishment. Id. at 414-18.
170. Specific and general deterrence are distinguished in that the subject of punishment is specifically deterred from committing future offenses while the population at large is generally deterred as the result of this same punishment of an offender.
171. Prevention differs from specific deterrence in that the offender is physically prevented from committing an act (e.g., by being jailed) rather than being psychologically deterred by threat of punishment. Prevention serves utilitarian goals to the extent that the prisoner would have committed an act but for his imprisonment. Incapacitation, e.g., where a sex offender is chemically castrated to prevent future sexual assaults, may be thought of as a species of prevention, or as an independent rationale for punishment, depending upon whether prevention is limited to physical incarceration.
172. Rehabilitation serves utilitarian goals in the same way that specific deterrence does -by ensuring that criminal acts that otherwise would have occurred do not. The advantage of rehabilitation over deterrence, from the standpoint of utility, is that the latter is effective only as long as there exists some credible threat of punishment, while the former represents some wholesale character change so that compliance with the law is not dependant upon external legal contingencies.
173. Other utilitarian functions include victim's carthorses (the discharge of anti-social feelings which occur with victimization), incapacitation, and education (the character forming role of punishment upon offenders and the general populace). For a discussion of the latter, see Jean Hampton, The Moral Education Theory of Punishment, 13 PHIL. & PUB. AFF. 208 (1984) (defending the idea that punishment should be viewed not as a deserved evil, but as a means of correcting the character of the offender).
174. A great deal has been written on the theory of punishment from a deontological standpoint. For a representative sample of the most important such works, see JOEL FEINBERG, The Classic Debate, in THE PHILOSOPHY OF LAW (Joel Feinberg ed., 1981) (providing an overview of the utilitarian-retributivist debate); see also, IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., 1965) (1797) (presenting the classic deontological statement arguing, among other things, that punishment should never treat the offender as a means to some social end, and thus may not be used primarily as a means of bettering the criminal or deterring criminal conduct); C.S. LEWIS, A CRITIQUE OF THE HUMANITARIAN THEORY OF PUNISHMENT, reprinted in MORALITY IN PRACTICE 262 (James P. Sterba ed., 1984) (critiquing therapeutic models of punishment); H.J. McCloskey, Utilitarian and Retributive Punishment, in UTILITARIANISM AND CRITICAL ESSAYS (Samuel Gorovitz ed., 1971) (arguing that the principles of obligation and punishment are not reducible to utilitarian terms); Herbert Morris, Persons and Punishment, 52 THE MONIST 475 (1968) (presenting a modern deontological argument for the right to punish, along with a rejection of therapeutic and utilitarian models of punishment).
175. A great deal has been written on the theory of punishment from a deontological standpoint. For a representative sample of the most important such works, see JOEL FEINBERG, The Classic Debate, in THE PHILOSOPHY OF LAW (Joel Feinberg ed., 1981) (providing an overview of the utilitarian-retributivist debate); see also, IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., 1965) (1797) (presenting the classic deontological statement arguing, among other things, that punishment should never treat the offender as a means to some social end, and thus may not be used primarily as a means of bettering the criminal or deterring criminal conduct); C.S. LEWIS, A CRITIQUE OF THE HUMANITARIAN THEORY OF PUNISHMENT, reprinted in MORALITY IN PRACTICE 262 (James P. Sterba ed., 1984) (critiquing therapeutic models of punishment); H.J. McCloskey, Utilitarian and Retributive Punishment, in UTILITARIANISM AND CRITICAL ESSAYS (Samuel Gorovitz ed., 1971) (arguing that the principles of obligation and punishment are not reducible to utilitarian terms); Herbert Morris, Persons and Punishment, 52 THE MONIST 475 (1968) (presenting a modern deontological argument for the right to punish, along with a rejection of therapeutic and utilitarian models of punishment).
176. A great deal has been written on the theory of punishment from a deontological standpoint. For a representative sample of the most important such works, see JOEL FEINBERG, The Classic Debate, in THE PHILOSOPHY OF LAW (Joel Feinberg ed., 1981) (providing an overview of the utilitarian-retributivist debate); see also, IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., 1965) (1797) (presenting the classic deontological statement arguing, among other things, that punishment should never treat the offender as a means to some social end, and thus may not be used primarily as a means of bettering the criminal or deterring criminal conduct); C.S. LEWIS, A CRITIQUE OF THE HUMANITARIAN THEORY OF PUNISHMENT, reprinted in MORALITY IN PRACTICE 262 (James P. Sterba ed., 1984) (critiquing therapeutic models of punishment); H.J. McCloskey, Utilitarian and Retributive Punishment, in UTILITARIANISM AND CRITICAL ESSAYS (Samuel Gorovitz ed., 1971) (arguing that the principles of obligation and punishment are not reducible to utilitarian terms); Herbert Morris, Persons and Punishment, 52 THE MONIST 475 (1968) (presenting a modern deontological argument for the right to punish, along with a rejection of therapeutic and utilitarian models of punishment).
177. A great deal has been written on the theory of punishment from a deontological standpoint. For a representative sample of the most important such works, see JOEL FEINBERG, The Classic Debate, in THE PHILOSOPHY OF LAW (Joel Feinberg ed., 1981) (providing an overview of the utilitarian-retributivist debate); see also, IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., 1965) (1797) (presenting the classic deontological statement arguing, among other things, that punishment should never treat the offender as a means to some social end, and thus may not be used primarily as a means of bettering the criminal or deterring criminal conduct); C.S. LEWIS, A CRITIQUE OF THE HUMANITARIAN THEORY OF PUNISHMENT, reprinted in MORALITY IN PRACTICE 262 (James P. Sterba ed., 1984) (critiquing therapeutic models of punishment); H.J. McCloskey, Utilitarian and Retributive Punishment, in UTILITARIANISM AND CRITICAL ESSAYS (Samuel Gorovitz ed., 1971) (arguing that the principles of obligation and punishment are not reducible to utilitarian terms); Herbert Morris, Persons and Punishment, 52 THE MONIST 475 (1968) (presenting a modern deontological argument for the right to punish, along with a rejection of therapeutic and utilitarian models of punishment).
178. A great deal has been written on the theory of punishment from a deontological standpoint. For a representative sample of the most important such works, see JOEL FEINBERG, The Classic Debate, in THE PHILOSOPHY OF LAW (Joel Feinberg ed., 1981) (providing an overview of the utilitarian-retributivist debate); see also, IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., 1965) (1797) (presenting the classic deontological statement arguing, among other things, that punishment should never treat the offender as a means to some social end, and thus may not be used primarily as a means of bettering the criminal or deterring criminal conduct); C.S. LEWIS, A CRITIQUE OF THE HUMANITARIAN THEORY OF PUNISHMENT, reprinted in MORALITY IN PRACTICE 262 (James P. Sterba ed., 1984) (critiquing therapeutic models of punishment); H.J. McCloskey, Utilitarian and Retributive Punishment, in UTILITARIANISM AND CRITICAL ESSAYS (Samuel Gorovitz ed., 1971) (arguing that the principles of obligation and punishment are not reducible to utilitarian terms); Herbert Morris, Persons and Punishment, 52 THE MONIST 475 (1968) (presenting a modern deontological argument for the right to punish, along with a rejection of therapeutic and utilitarian models of punishment).
179. BENTHAM, supra note 132, at 158. Bentham makes clear that punishment itself is to be considered an evil visited upon the criminal by society. He writes: "But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil." Id.
180. Both utilitarians and deontologists will agree that good acts are justified. Of course, the utilitarian will emphasize the fact that utility is maximized by the act, and that this is what makes the act good, while the deontologist will argue that the act is justified because it is not morally blameworthy. At a deeper level, however, the utilitarian's focus upon the consequences of the act and the deontologist's emphasis upon the motive of the actor may amount to different aspects of the same underlying rationale: it may be that the actor's motive is viewed to be morally blameless because we approve the consequences.
181. Cases in which punishment is groundless include defenses for what today would be called consent and necessity, among others, both of which are viewed as privileges in tort law and forms of justification in criminal law. BENTHAM, supra note 132, at 159-60.
182. Id. at 160-62. Duress is included among other defenses which are characterized as excuses today. These include Bentham's treatment of infancy, insanity, intoxication and unconsciousness.
183. See supra note 22 (citing authors who view duress as a type of justification analogous to necessity).
184. According to Bentham: [M]ust necessarily be ineffectual; because the evil which he sets himself about to undergo, in the case of his not engaging in the act, is so great, that the evil denounced in the penal clause, in case of his engaging in it, cannot appear greater. This may happen . . . in the case of a threatened mischief. BENTHAM, supra note 132, at 162.
185. Of course, only voluntary conduct is deterrable, though not all voluntary conduct is deterrable as a practical matter. See infra Part IV.D (distinguishing absolutely and conditionally undeterrable acts).
186. This is the rationale for duress given by LaFave and Scott in their text on criminal law. See LAFAVE & SCOTT, supra note 24, at 433.
187. See e.g., LAFAVE & SCOTTsupra note 24, at 434-35.
188. Indeed, most statutes distinguish between duress and various forms of justification. See MODEL PENAL CODE § 3.02 (providing for the choice of evils justification); cf. id. § 2.09 (elaborating the duress defense, where no special requirement is included that the threatened harm must outweigh the harm committed). Most state statutes draw the same distinction. See, e.g., COLO. REV. STAT. ANN. §§ 18-1-708 (West 1988) (duress) and 18-1-702 (choice of evils); HAW. REV. STAT. §§ 702-231 (Michie 1979) (duress) and 703-302 (choice of evils).
189. Indeed, most statutes distinguish between duress and various forms of justification. See MODEL PENAL CODE § 3.02 (providing for the choice of evils justification); cf. id. § 2.09 (elaborating the duress defense, where no special requirement is included that the threatened harm must outweigh the harm committed). Most state statutes draw the same distinction. See, e.g., COLO. REV. STAT. ANN. §§ 18-1-708 (West 1988) (duress) and 18-1-702 (choice of evils); HAW. REV. STAT. §§ 702-231 (Michie 1979) (duress) and 703-302 (choice of evils).
190. See WERTHEIMER, supra note 3, at 168 (reviewing the argument that, if duress is a justification, no person would have the right to resist the coerced act).
191. See LAFAVE & SCOTT, supra note 24, at 375.
192. For a critique of Wertheimer's distinction between agent-neutral and agent-relative acts, see supra notes 113-17 and accompanying text.
193. See J.J.C. SMART, UTILITARIANISM: FOR AND AGAINST 9-12 (J.J.C. Smart & Bernard Williams 1973) (comparing act and rule versions of the theory and defending act (extreme) utilitarianism). Cf. H.P. McCloskey, An Examination of Restricted Utilitarianism, in UTILITARIANISM WITH CRITICAL ESSAYS, supra note 149, at 204-17 (arguing that "restricted" (rule) utilitarianism fares no better than act utilitarianism).
194. See J.J.C. SMART, UTILITARIANISM: FOR AND AGAINST 9-12 (J.J.C. Smart & Bernard Williams 1973) (comparing act and rule versions of the theory and defending act (extreme) utilitarianism). Cf. H.P. McCloskey, An Examination of Restricted Utilitarianism, in UTILITARIANISM WITH CRITICAL ESSAYS, supra note 149, at 204-17 (arguing that "restricted" (rule) utilitarianism fares no better than act utilitarianism).
195. See HART, supra note 1, at 44-45 (arguing in favor of viewing certain excuses as part and parcel of a "choosing system" of criminal law that permits persons to direct their own lives without the fear of punishment for capricious external influences over which we have no control).
196. See GLANVILLE WILLIAMS, CRIMINAL LAW, THE GENERAL PART 756 (2d ed. 1961) (defending a utilitarian conception of duress). This approach to duress can be traced to the thought of Thomas Hobbes: If a man, by the tenor of present death, be compelled to do an act against the law, he is totally excused because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, still a man would reason thus: If I do it not, I die presently; if I do it, I die afterwards; therefore, there is time of life gained. THOMAS HOBBES, LEVIATHAN Part II, CH.27 (1969) (1651).
197. See GLANVILLE WILLIAMS, CRIMINAL LAW, THE GENERAL PART 756 (2d ed. 1961) (defending a utilitarian conception of duress). This approach to duress can be traced to the thought of Thomas Hobbes: If a man, by the tenor of present death, be compelled to do an act against the law, he is totally excused because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, still a man would reason thus: If I do it not, I die presently; if I do it, I die afterwards; therefore, there is time of life gained. THOMAS HOBBES, LEVIATHAN Part II, CH.27 (1969) (1651).
198. The actor would just as well take his chances with the criminal justice system, rather than face the more immediate danger, even where he knows that the act he is about to commit is punishable.
199. MODEL PENAL CODE § 2.09(2) (1962).
200. This is true particularly in cases where the person has placed himself in such a situation as the result of a pattern of behavior likely to be repeated. Whether as the result of criminal activity or other acts in which a sufficient degree of danger exists that the person's conduct can be considered reckless, the likelihood of similar activity in the future is certainly greater than that of the general population.
201. See HART, supra note 1, at 136-57 (arguing that negligent behavior may nevertheless be the basis for criminal liability and rejecting the view that negligence entails inadvertence).
202. See id. at 19-20 (discussing and critiquing this and other possible utilitarian considerations in favor of eliminating exculpatory conditions).
203. Accord DRESSLER, supra note 22, at 1365 (arguing that duress excuses where the victim's choices are note only hard, but unfair).
204. See, e.g., D'Aquino v. United States, 192 F.2d 338, 359 (9th Cir. 1951) (holding that duress is limited to threats of death or serious bodily harm in the treason case of Tokyo Rose).
205. See, e.g., GA. CODE ANN. § 16-3-26 (West 1998) (requiring death or serious bodily injury); 720 ILL. COMP. STAT. 5/7-11 (West 1996) (same).
206. See, e.g., MINN. STAT. ANN. § 609.08 (West 1987) (requiring death only).
207. See LAFAVE & SCOTT, supra note 24, at 378.
208. The Model Penal Code provides a defense where a "person of reasonable firmness in his situation would have been unable to resist." MODEL PENAL CODE § 2.09(1) (1985). There is no substantive limitation on the nature of the threat.
209. See LAFAVE & SCOTT, supra note 24, at 434 (discussing the position of the Model Penal Code and arguing that it represents an objective test that, nevertheless, permits for more nuanced decisions).
210. Most state statutes still require that the threat be imminent. See, e.g., GA. CODE ANN. § 16-3-26 (West 1998); 720 ILL. COMP. STAT. ANN. 5/7-11 (West 1992). Some require an even more direct threat. See MINN. STAT. ANN. § 609.08 (West 1987) (requiring threat of "instant" death). The Model Penal Code's "person of reasonable firmness standard" is more broadly worded. MODEL PENAL CODE § 2.09(1) (1985). Presumably, if a threat was serious enough and appeared to be unavoidable, even a less than imminent threat might be sufficient. This standard has begun to influence some cases. See e.g., State v. Toscano, 378 A.2d 755, 765 (N.J. Sup. Ct. 1977) (adopting the MPC formulation).
211. Most state statutes still require that the threat be imminent. See, e.g., GA. CODE ANN. § 16-3-26 (West 1998); 720 ILL. COMP. STAT. ANN. 5/7-11 (West 1992). Some require an even more direct threat. See MINN. STAT. ANN. § 609.08 (West 1987) (requiring threat of "instant" death). The Model Penal Code's "person of reasonable firmness standard" is more broadly worded. MODEL PENAL CODE § 2.09(1) (1985). Presumably, if a threat was serious enough and appeared to be unavoidable, even a less than imminent threat might be sufficient. This standard has begun to influence some cases. See e.g., State v. Toscano, 378 A.2d 755, 765 (N.J. Sup. Ct. 1977) (adopting the MPC formulation).
212. Most state statutes still require that the threat be imminent. See, e.g., GA. CODE ANN. § 16-3-26 (West 1998); 720 ILL. COMP. STAT. ANN. 5/7-11 (West 1992). Some require an even more direct threat. See MINN. STAT. ANN. § 609.08 (West 1987) (requiring threat of "instant" death). The Model Penal Code's "person of reasonable firmness standard" is more broadly worded. MODEL PENAL CODE § 2.09(1) (1985). Presumably, if a threat was serious enough and appeared to be unavoidable, even a less than imminent threat might be sufficient. This standard has begun to influence some cases. See e.g., State v. Toscano, 378 A.2d 755, 765 (N.J. Sup. Ct. 1977) (adopting the MPC formulation).
213. Compare GA. CODE ANN. § 16-3-26 (West 1998) (defendant only) and 720 ILL. COMP. STAT. ANN. 5/7-11 (West 1992) (same) with KAN. STAT. ANN. § 21-3209 (West 1998) (defendant or a "spouse, parent, child, brother or sister.").
214. Compare United States v. Bailey, 444 U.S. 394 (1980) (requiring that a prisoner who escaped under the threat of death from another prisoner must prove that the threat was imminent).
215. This explains the common law requirement that duress requires an imminent threat. The less imminent the threat, the less likely the act should be viewed as coercive. See United States v. Lee, 694 F.2d 649 (11th Cir. 1983) (no duress without imminent threat of physical harm); compare Esquibel v. State, 576 P. 2d 1129 (N.M. 1978) (threat by prison guards forty-eight to seventy-two hours before escape is imminent enough, as imminence is relative to the circumstances).
216. The Model Penal Code permits a defense where the threat is made against the defendant or "the person of another." MODEL PENAL CODE § 2.09(1) (1985).
217. See supra notes 170-71 and accompanying text.
218. See PROSSER AND KEETON, supra note 37, at 263-72 (discussing of the cause-in-fact requirement in tort law). I leave aside here any discussion of whether some analogue of the "substantial factor" test might be required. Vaughn v. Menlove, 132 Eng. Rep. 490 (1837) (providing the classic discussion of the arguments on both sides).
219. See PROSSER AND KEETON, supra note 37, at 173-75 (discussing the subjective/objective dilemma in negligence law). While this standard is usually viewed to be a function of the "duty" element, it emerges as an aspect of the "causation" requirement in cases involving breach of informed consent, where it must be decided whether the patient's own subjective preferences should be used, or those of some "reasonable person." See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979) (reviewing the arguments for both sides and adopting the subjective standard in an informed consent action).
220. MODEL PENAL CODE § 2.09(1) (1985).
221. See supra notes 174-76 and accompanying text.
222. See WILLIAM BLACKSTONE, COMMENTARIES, Bk. IV § 30 (1765) (stating that duress is never permitted as a defense to murder); see also State v. Finnell, 688 P.2d 769, 773-74 (N.M. 1984) (duress is no defense to homicide); Taylor v. State, 130 So. 502, 504 (Miss. 1930) (same).
223. This rule originated in dicta in a footnote in Justice Frankfurter's opinion in Piemonte v. United States, 367 U.S. 556, 557 n.1 (1961).
224. WERTHEIMER, supra note 3, at 158.
225. E.g., In re Farrell, 611 F.2d 923, 924-25 (1st Cir. 1979); United States v. Damiano, 579 F.2d 1001, 1003-04 (6th Cir. 1978); Dupuy v. United States, 518 F.2d 1295, 1295 (9th Cir. 1975); Taylor v. United States, 509 F.2d 1349, 1350 (5th Cir. 1975); United States v. Handler, 476 F.2d 709, 712 (2d Cir. 1973); In re Kilgo, 484 F.2d 1215, 1221 (4th Cir. 1973); LaTona v. United States, 449 F.2d 121, 122 (8th Cir. 1971).
226. See e.g., United States v. Bailey, 444 U.S. 394 (1980); Dressler, supra note 21, at 283 (discussing the limitations placed on the defense in the prison escape situation).
227. See, e.g., Debra T. Landis, Annotation, Propriety and Construction of "Totality of Conditions" Analysis in Federal Courts Consideration of Eighth Amendment Challenge & Prison Conditions, 85 A.L.R. FED. 750 (1987) (providing an overview of prison conditions generally and the threat of physical and sexual assault).
228. M'Naughten's Case, 8 Eng. Rep. 718 (1843) (concluding that insane delusion was a basis for excuse in the murder of the private secretary to Sir Robert Peel); Shorter v. People, 2 N.Y. 193, 197 (1849) (stating that defendant is justified in taking life of another if he reasonably believed the victim was about to kill her). See LAFAVE & SCOTT, supra note 24, § 5.7(b), at 456 (discussing reasonably mistaken self-defense).
229. Incidentally, in some cases, there may be no explicit threat at all, only a well-grounded fear on the part of the witness. This raises the question as to whether the intimidated witness can raise a duress claim where no threat has been made. Arguably, there are situations where a witness might reasonably be in fear without having received an explicit threat, as where the witness must testify against an underworld figure connected with the intimidation, abduction or murder of other witnesses.
230. These requirements were outlined in a case permitting two female inmates to plead necessity to a threat of battery and/or sexual assault by other female inmates. The escapees were faced with the alternative, "fuck or fight," and chose to flee instead. People v. Lovercamp, 43 Cal.App.3d 823, 825 (1974).
231. A Learned Hand opinion is the classic statement on this. United States v. Carroll Towing Co., 159 F. 2d 169 (2d Cir. 1947).
232. See J.J.C. SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST (1973) (providing an excellent overview of the debate on utilitarianism).
233. Perhaps three developments are most significant in recounting the development of utilitarianism from its inception with Bentham. First, modern utilitarians have tended to move from act to rule-based models. Second, they have moved away from hedonistic forms of utilitarianism to intuitionistic and preference-based models. Third, a point which is related to the second development, they have moved away from reductionistic, quanitificational models of utility. We see the first and third developments already in Mill's utilitarianism. See MOORE, supra note 139; Mill, Utilitarianism, in UTILITARIANISM, LIBERTY AND REPRESENTATIVE GOVERNMENT 7 (1910) (arguing that there are differing levels of the quality of pleasure, and that pleasure is not all quantitatively reducible to basic units); J.O. Urmson, The Interpretation of the Moral Philosophy of J.S. Mill, 3 PHIL. Q. 33 (1953) (arguing that Mill is best understood as a rule utilitarian). The move to an intuitionistic form of utilitarianism is evident in G.E. Moore. Finally, modern preference utilitarianism is evident in the law and economics movement. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 6 (2d ed. 1977) (discussing the notion of utility as maximizing satisfaction of preferences).
234. Perhaps three developments are most significant in recounting the development of utilitarianism from its inception with Bentham. First, modern utilitarians have tended to move from act to rule-based models. Second, they have moved away from hedonistic forms of utilitarianism to intuitionistic and preference-based models. Third, a point which is related to the second development, they have moved away from reductionistic, quanitificational models of utility. We see the first and third developments already in Mill's utilitarianism. See MOORE, supra note 139; Mill, Utilitarianism, in UTILITARIANISM, LIBERTY AND REPRESENTATIVE GOVERNMENT 7 (1910) (arguing that there are differing levels of the quality of pleasure, and that pleasure is not all quantitatively reducible to basic units); J.O. Urmson, The Interpretation of the Moral Philosophy of J.S. Mill, 3 PHIL. Q. 33 (1953) (arguing that Mill is best understood as a rule utilitarian). The move to an intuitionistic form of utilitarianism is evident in G.E. Moore. Finally, modern preference utilitarianism is evident in the law and economics movement. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 6 (2d ed. 1977) (discussing the notion of utility as maximizing satisfaction of preferences).
235. Perhaps three developments are most significant in recounting the development of utilitarianism from its inception with Bentham. First, modern utilitarians have tended to move from act to rule-based models. Second, they have moved away from hedonistic forms of utilitarianism to intuitionistic and preference-based models. Third, a point which is related to the second development, they have moved away from reductionistic, quanitificational models of utility. We see the first and third developments already in Mill's utilitarianism. See MOORE, supra note 139; Mill, Utilitarianism, in UTILITARIANISM, LIBERTY AND REPRESENTATIVE GOVERNMENT 7 (1910) (arguing that there are differing levels of the quality of pleasure, and that pleasure is not all quantitatively reducible to basic units); J.O. Urmson, The Interpretation of the Moral Philosophy of J.S. Mill, 3 PHIL. Q. 33 (1953) (arguing that Mill is best understood as a rule utilitarian). The move to an intuitionistic form of utilitarianism is evident in G.E. Moore. Finally, modern preference utilitarianism is evident in the law and economics movement. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 6 (2d ed. 1977) (discussing the notion of utility as maximizing satisfaction of preferences).
236. BENTHAM, supra note 132, at 38-41 (discussing the way in which utility is to be calculated according to several dimensions, including its intensity, duration, certainty, fecundity (to produce other pleasure). Bentham's thought is pervaded by the quest for a quasi-mathematical rigor. Id.
237. See Isaiah Berlin, John Stuart Mill and the Ends of Life, in FOUR ESSAYS ON LIBERTY 173-206 (1969) (discussing the relationship between moral pluralism and toleration in Mill's thought, and in liberal thought generally); JOHN GRAY, ISAIAH BERLIN 38-75 (1996) (discussing Berlin's pluralism); JOSEPH RAZ, THE MORALITY OF FREEDOM 395-407 (1986) (attempting to reconcile a soft liberal perfectionism with value pluralism). Moral pluralism contrasts with moral relativism in that the pluralist is still a moral realist - i.e. the pluralist believes that moral values are real, not simply social constructions. Yet, for the pluralist, there are a diverse number of moral goods irreducible to some common denominator. Thus, moral goods cannot be ordered or prioritized in any rational way. See GRAY, supra 141-68 (discussing this aspect of pluralism as it relates to justifying liberalism's commitment to freedom).
238. See Isaiah Berlin, John Stuart Mill and the Ends of Life, in FOUR ESSAYS ON LIBERTY 173-206 (1969) (discussing the relationship between moral pluralism and toleration in Mill's thought, and in liberal thought generally); JOHN GRAY, ISAIAH BERLIN 38-75 (1996) (discussing Berlin's pluralism); JOSEPH RAZ, THE MORALITY OF FREEDOM 395-407 (1986) (attempting to reconcile a soft liberal perfectionism with value pluralism). Moral pluralism contrasts with moral relativism in that the pluralist is still a moral realist - i.e. the pluralist believes that moral values are real, not simply social constructions. Yet, for the pluralist, there are a diverse number of moral goods irreducible to some common denominator. Thus, moral goods cannot be ordered or prioritized in any rational way. See GRAY, supra 141-68 (discussing this aspect of pluralism as it relates to justifying liberalism's commitment to freedom).
239. See Isaiah Berlin, John Stuart Mill and the Ends of Life, in FOUR ESSAYS ON LIBERTY 173-206 (1969) (discussing the relationship between moral pluralism and toleration in Mill's thought, and in liberal thought generally); JOHN GRAY, ISAIAH BERLIN 38-75 (1996) (discussing Berlin's pluralism); JOSEPH RAZ, THE MORALITY OF FREEDOM 395-407 (1986) (attempting to reconcile a soft liberal perfectionism with value pluralism). Moral pluralism contrasts with moral relativism in that the pluralist is still a moral realist - i.e. the pluralist believes that moral values are real, not simply social constructions. Yet, for the pluralist, there are a diverse number of moral goods irreducible to some common denominator. Thus, moral goods cannot be ordered or prioritized in any rational way. See GRAY, supra 141-68 (discussing this aspect of pluralism as it relates to justifying liberalism's commitment to freedom).
240. It follows from a commitment to pluralism that the utilitarian quest to define and reduce all ethical values to pleasure is illusory. Consequently, different value options cannot be quantified or measured against one another. Thus, all moral pluralists reject the classical utilitarian reduction of all good to pleasure. John Stuart Mill rejected both the classical utilitarian reduction and the pluralist approach. He is not a pluralist because he still believes that different goods can be rationally ordered. See MILL, ON LIBERTY, at CH. II (arguing that those who have experienced two kinds of values can best judge which is qualitatively better). See e.g., J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG 125-29 (1977) (discussing the impracticality of quantifying happiness); BERNARD WILLIAMS, MORALITY: AN INTRODUCTION TO ETHICS 92-100 (1972) (discussing a number of problems related to difficulties in quantifying happiness).
241. It follows from a commitment to pluralism that the utilitarian quest to define and reduce all ethical values to pleasure is illusory. Consequently, different value options cannot be quantified or measured against one another. Thus, all moral pluralists reject the classical utilitarian reduction of all good to pleasure. John Stuart Mill rejected both the classical utilitarian reduction and the pluralist approach. He is not a pluralist because he still believes that different goods can be rationally ordered. See MILL, ON LIBERTY, at CH. II (arguing that those who have experienced two kinds of values can best judge which is qualitatively better). See e.g., J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG 125-29 (1977) (discussing the impracticality of quantifying happiness); BERNARD WILLIAMS, MORALITY: AN INTRODUCTION TO ETHICS 92-100 (1972) (discussing a number of problems related to difficulties in quantifying happiness).
242. It follows from a commitment to pluralism that the utilitarian quest to define and reduce all ethical values to pleasure is illusory. Consequently, different value options cannot be quantified or measured against one another. Thus, all moral pluralists reject the classical utilitarian reduction of all good to pleasure. John Stuart Mill rejected both the classical utilitarian reduction and the pluralist approach. He is not a pluralist because he still believes that different goods can be rationally ordered. See MILL, ON LIBERTY, at CH. II (arguing that those who have experienced two kinds of values can best judge which is qualitatively better). See e.g., J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG 125-29 (1977) (discussing the impracticality of quantifying happiness); BERNARD WILLIAMS, MORALITY: AN INTRODUCTION TO ETHICS 92-100 (1972) (discussing a number of problems related to difficulties in quantifying happiness).
243. See SMART, supra note 163, at 62-67 (discussing utilitarianism and calculating future consequences and the difficulties with this).
244. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (2d ed. 1977).
245. Compare BENTHAM, supra note 132, at CH. IV, with MILTON FRIEDMAN, CAPITALISM AND FREEDOM CH. X (1982).
246. See KANT, supra note 149; LEWIS, supra note 149.
247. See TED HONDERICH, PUNISHMENT: THE SUPPOSED JUSTIFICATION 35-47 (1969) (providing an overview of criticisms of retributivism).
248. I leave open the possibility that there might exist important nonconsequentialist arguments for punishment.
249. The various versions of the theory hold that utilitarianism justifies the violation of the rights of some if doing so can so increase the net utility of others that, on balance, total utility is increased. As Rawls has put the problem, the utilitarian places the good over the right, thus violating principles of justice. See RAWLS, supra note 9, at 27-33 (discussing the contrast between utilitarian thought and the idea of justice as fairness). As Rawls notes, in this respect utilitarianism is not an individualistic theory because utility is inter-subjective. Id. at 29.
250. KANT, supra note 131. For a utilitarian response to the requirement that we never treat others as ends, see P. Nowell-Smith, Utilitarianism and Treating Others as Ends, 1 NOUS 81 (1967).
251. For a classic statement of the retributivist objection to the utilitarian theory of punishment, see H.J. McCloskey, Utilitarian and Retributive Punishment, in UTILITARIANISM WITH CRITICAL ESSAYS, supra note 149 at 361-75 (rejecting utilitarian attempts to rehabilitate their position against the claim that it leads to unjust punishment).
252. See supra Part II.A.
253. See supra Part I.