Responsibility and social/political choices about choice; or, one way to be a true non-voluntarist

Law and Philosophy

Volumn 25, Issue 4, 2006, Pages 453-488

  Leib, Ethan ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 33646894928     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-005-3220-x     Document Type: Review

References (73)

1. See, e.g., Samuel Scheffler, 'Responsibility, Reactive Attitudes, and Liberalism in Philosophy and Polities', in Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (New York: Oxford Unveristy Press 2001), p. 12. Scheffler is most interested in contemporary liberalism's denial of "pre-institutional desert".
2. The terminology is Scanlon's. See T.M. Scanlon, 'Responsibility', in What We Owe To Each Other (Cambridge: Belknap Press of Harvard University Press 1998), pp.248-294.
3. Many of these compatibilists are "pessimists", think that our practices of praise and blame are instituted for utilitarian reasons despite the truth of determinism. For ways around pessimism, see P.P. Strawson, 'Freedom and Resentment', in Gary Watson (ed., New York: Oxford University Press 1982), Free Will 59, 62, 76 (1962).
4. The term is Tony Honoré's. See, e.g., Tony Honoré, 'Responsibility and Luck: The Moral Basis of Strict Liability', Law Quarterly Review 104 (1988), p. 530.
5. "Agent-regret"is essentially the idea that we feel responsible for things we cause, even when we do them accidentally. See, e.g. Bernard Williams, 'Moral Luck', in Moral Luck (New York: Cambridge University Press 1981), pp. 20, 27-31 (1976). A voluntarist, of course, can simply say that our intuitions are wrong and that we ought to get over our agent-regret, for it is misleading us.
6. To attribute liability-responsibility to an agent, any combination of any number of these variables could suffice to serve as the ground of responsibility, depending on the domain in which and perspective from which we are interested in attributing responsibility. But I don't think any of the variables - or even the menu itself - can be said to have special purchase on the concept of responsibility in a more basic sense. We could well imagine societies that have different menus. The catalogue I offer here merely represents our current conventions and - I would argue (though won't here) - is contingent. For the purposes of this meditation, however, I shall assume that the concept of responsibility is constrained by the four variables enumerated in the text above. For more on the contingency of the concept, see generally Scheffler, 'Responsibility in a Global Age', in Scheffler, supra note 1, at 32. Cause and choice are the easiest to spot in our criminal law and tort law practices. Strict liability in tort apportions responsibility on the basis of cause; the criminal law's mens rea requirements apportion responsibility on the basis of choice (with a causation requirement appended, to be sure). Much of the time our legal doctrines require that an agent both choose and cause harm before responsibility in the liability sense attaches; but sometimes one without the other is sufficient. Occasionally, we hold individuals liable merely on the basis that they are responsible for their acts, without attendant attention to what they chose or what they caused, as when two or more agents shoot guns that cause harm, but we cannot trace which bullet was the 'true' cause.
7. See, e.g., People v. Russell, 693 N.E.2d 280 (N.Y. 1998);
8. Summers v. Tice, 199 P.2d 1 (1948). Finally, although we are generally averse to the idea of punishing people for their status, thoughts, or characters, how people identify themselves (with criminal enterprises, for example, for purposes of accomplice or conspiracy liability) and how others assess their character is often considered properly relevant to questions of responsibility.
9. See Meir Dan-Cohen, 'Responsibility and the Boundaries of Self, in Harmful Thoughts: Essays on Law, Self, and Morality (Princeton: Princeton University Press 2002), pp. 199, 200
10. (originally published at Harvard Law Review 105 (1992), p. 959).
11. Id.
12. Id.
13. Meir Dan-Cohen, 'Conceptions of Choice and Conceptions of Autonomy', Ethics 102 (1992), p. 221.
14. Scanlon, supra note 2.
15. Dan-Cohen offers a third argument from morality which I leave to one side here so as not to be weighed down by the technical nature of philosophical writings about Kantianism.
16. Dan-Cohen, supra note 10, at 232.
17. Dan-Cohen, supra note 7, at 202
18. (adopting a definition from Jean-Paul Sartre, Being and Nothingness 707 (Hazel E. Barnes trans., New York: Routledge 1956)).
19. Meir Dan-Cohen, 'Introduction', in Dan-Cohen, Supra note 7, at 4.
20. Id.
21. use the term "relational"in connection with responsibility more or less consistently with Chris Kutz. See Christopher Kutz, 'Responsibility', in Jules Coleman and Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and the Philosophy of Law (New York: Oxford University Press 2002), p. 548.
22. Another major "perspectival"account of responsibility can be found in Peter Cane, Responsibility in Law and Morality (Portland, OR: Hart Publishing 2002). Thanks to Mitchell Berman for leading me to Cane's work.
23. It is worth emphasizing that Dan-Cohen himself can be read to be seeking a "third variable,"extrinsic to choice and responsibility. He sees the self and its identifications as drawing the contours of responsibility. I do not evaluate this particular theory here. My emphasis is to show that he is willing to retain the connection of choice to responsibility.
24. Dan-Cohen, supra note 7, at 208. Notably, Dan-Cohen only sees the self with this kind of plasticity; I am arguing the concept of responsibility is similarly flexible.
25. As I explained above, in Conceptions Dan-Cohen is purporting to write specifically about the conception of choice relevant to an ideal of autonomy. But, for my purposes, the ideal of autonomy captures the core of the idea of responsibility: authorship of our own lives. Accordingly, without denying that there are many differences between autonomy and responsibility, I shall treat Dan-Cohen's piece as if it were investigating conceptions of choice as applied to responsibility for the reasons adumbrated in Part I.
26. The four criteria are adapted from Dan-Cohen, supra note 10, at 222
27. (citing David Gautier, Morals by Agreement (New York: New York Press 1986) (chapter 2);
28. and Jon Elster, 'Introduction', in Jon Elster (ed.), Rational Choice (New York: New York Press 1986): p. 1).
29. Although some may urge that my assimilation of the "rational choice"model with Scanlon's "Forfeiture View"is too facile, Dan-Cohen's first and fourth condition are virtually identical to Scanlon's depiction; they are close enough. Harry Frankfurt also urges against a form of this view when he rejects "the principle of alternate possibilities"- "that a person is morally responsible for what he has done only if he could have done otherwise."See Harry G. Frankfurt, 'Alternate Possibilities and Moral Responsibility', in The Importance of What We Care About (New York: Cambridge University Press 1988) (1969), p. 1 (arguing that whether an agent could have done otherwise is less relevant than whether he acts because he couldn't have acted otherwise; if he would have acted the same way whether coerced or not, he should still be held responsible despite there having been dramatic repercussions for acting any other way).
30. There is at least one irony here: "choosing"doesn't really need to be rational. When I order the fish over the chicken on a menu, it would be odd to call that choice necessarily rational, even if it satisfied the conditions of necessarily rational choice s choosing."
31. Dan-Cohen, supra note 10, at 223.
32. Id. at 224.
33. Id. at 225-226.
34. Id. at 227. Pardon the heterogexism here of course.
35. Id.
36. Id.
37. Id. at 240. Harry Frankfurt is the one most often associated with the 'second-order-identification-with-choices-as-truly-claiming-responsibility' view, though Ronald Dworkin's view bears a family resemblance.
38. See, e.g., Harry G. Frankfurt, Identification and Externality', in The Importance of What We Care About, supra note 21, at 58;
39. Harry G. Frankfurt, 'Identification and Wholeheartedness', in The Importance of What We Care About, supra note 21, at 159;
40. Ronald Dworkin, 'What is Equality? Part 2: Equality of Resources', Philosophy & Public Affairs 10 (1981): p. 283. It appears that choice matters for the identification folks, only it need not be rational choice. The question remains: Is this really a commitment to nonvoluntarism?
41. Dan-Cohen, supra note 10, at 228 (defining "willing"with "all contraries of the defining characteristics of [']choosing[']").
42. Id. at 240.
43. See Dan-Cohen, supra note 7, at 201.
44. Id. at 213.
45. Id.
46. In the criminal law context, Dan-Cohen thinks his analysis provides the following results: The guy with a brain tumor who hits his child is usually analyzed as being excused on the basis of a denial, "I didn't do it,"because we allow the involuntariness defense here. But Dan-Cohen would have the guy with the tumor say "I didn't do it,"because the action wasn't really his own: he doesn't identify with his actions - and we believe him that there is no congruence with his second-order volitions and his actions. However, when seemingly uncontrollable lust 'causes' a rape, any attempted distancing of identity would not and could not be admitted in the consideration of responsibility because "the sexual drive is commonly perceived as an important constituent in our picture of the self."Since our sex drives are part of the "widely shared image of the 'lived body,'"the proposition, "I am not responsible for my sex drive"will and should be rejected by society (assuming the rapist even deigns to offer such disidentification). Interestingly, Dan-Cohen thinks some child molesters may rightfully get the advantage of distancing by disidentification because society assumes that such forms of sexual desire are diseases. For more on these applications of denying responsibility, see Dan-Cohen, supra note 7, at 224-235 (discussing Regina v. Charlson, 1 W.L.R. 317 (1955) (guy with tumor hits his son and throws him out of a window);
47. and Bedder v. Director of Public Prosecutions, 2 All E.R. 801 (H.L. 1952) (impotent man kills a taunting prostitute)). The doctrines of complicity (accomplice liability and conspiracy), as Dan-Cohen notes, is a nice site in the law where second-order identifications seem to matter at least as much as committings "overt acts"and taking "substantial steps beyond mere preparation,"the actus reus associated with those crimes.
48. Dan-Cohen, supra note 7, at 201.
49. Id.
50. Michel de Montaigne, 'Of Friendship', in The Complete Essays of Montaigne (Donald Frame trans., Stanford: Stanford University Press 1958), p. 139.
51. For more on Montaigne's theory of friendship, see Ethan J. Leib, 'The Politics of Family and Friends in Aristotle and Montaigne', Interpretation: A Journal of Political Philosophy 31 (2004): p. 165.
52. Of course, Dan-Cohen allows lovers to provide reasons within a "willing"paradigm, only the reasons must be "willing"- related reasons. See Dan-Cohen, supra note 10 at 227. It is my contention here that "choosing"related reasons, comparative at their core, are reasonable to demand from our lovers.
53. See Jon Elster, Sour Grapes: Studies in the Subversion of Rationality (New York: Cambridge University Press 1983).
54. Richard A. Posner, Law, Pragmatism, and Democracy 6 (Cambridge: Harvard University Press 2003).
55. Those that reject "identification"views of responsibility generally find them unattractive precisely because they allow an agent to have too much control over her responsibilities. See, e.g., Jules Coleman & Arthur Ripstein, 'Mischief and Misfortune', McGill Law Journal 41 (1995): p. 91.
56. Dan-Cohen has a response to this basis for rejecting the view built into his concept of "modularity,"where any "assumption or denial of responsibility is shaped in anticipation of and in response to the ascription of responsibility by others."Dan-Cohen, supra note 7, at 210. He is convinced that since our identifications (and identities) are mediated by social conventions and public conceptions of the self, a principle of modularity suggests a high level of fit between identifications and appropriate responsibility-bases. This response, more than parrying the critique, reveals an insight into my conception of responsibility: social conventions are where the action is, not within the self and its identifications.
57. This general strategy is one taken, in the context of a discussion of contract law, by P. S. Atiyah, Promises, Morals, and Law (New York: Oxford University Press 1981), pp. 127-128, 193-194
58. and, in the context of a discussion of property law, by Guido Calabresi and A. Douglas Melamed, 'Property Rules, Liability Rules, and Inalienability: One View of the Cathedral', Harvard Law Review 85 (1972): p. 1089.
59. To be fair, Dan-Cohen has a view about how to make vicarious responsibility cohere with his identification account. See Dan-Cohen, supra note 7, at 218. But it is a very short story that mostly explains how parents get to claim responsibility for their children. He doesn't quite explain how brothers and sisters, for example, are held responsible for one another, or how children can be held responsible for their parents. My point, that our normative orientation to family can draw the lines of responsibility, at least provides a coherent account of vicarious responsibility in the moral and legal arenas.
60. Notice that though individual choice is disentangled from personal responsibility on this model, social choice and its procedural mechanisms still have an intrinsic connection to responsibility. I leave this interesting twist for another time.
61. For one argument in this vein, see Stephen R. Perry, 'Libertarianism, Entitlement, and Responsibility', Philosophy & Public Affairs 26 (1997): p. 351. But this is just a variation on the standard Coasian insight.
62. Consider J.J.C. Smart's comment: "the notion of the responsibility [for an outcome] is a piece of metaphysical nonsense."J. J. C. Smart, 'An Outline of a System of Utilitarian Ethics', in J. J. C. Smart and Bernard Williams (eds.), Utilitarianism: For and Against (New york: Cambridge University Press 1973), p. 54.
63. As I've suggested, it is certainly possible that Dan-Cohen could have found a way to build a non-voluntarist theory of responsibility using his third mediating variable - identification - without succumbing to the voluntarist seduction. It is not, however, my purpose here to reconstruct Dan-Cohen's theory of responsibility.
64. See Dan-Cohen, supra note 7, at 211.
65. Id. at 206.
66. Id. at 210.
67. See supra note 6 for how limited I think the constraints actually are. But remember that we are assuming for these purposes that the concept is limited by certain variables: choices, causes, acts, identifications, and characters.
68. Scanlon has offered us a meta-principle from moral philosophy to confer legitimacy on the products of our social/political procedures of responsibility ascription: if our social/political scheme for responsibility is in conformity with principles that no one could reasonably reject, it can be considered legitimate and can be the recipe for responsibility in any given issue-area. See Scanlon, supra note 2. Responsibility ascriptions on his view must take place against the background of principles that no one could reasonably reject. This means that the results produced by any procedure we use for social/political choice is constrained not by a connection to individual choice per se, but by moral requirements that the responsibility-bases not be reasonably rejectable. While this leads Scanlon away from the "Forfeiture View,"his alternative (the "Value of Choice View"), although arguably passing his selected test of reasonable rejectability, still tethers responsibility to a conception of choice. So a self-described non-voluntarist again panders to those who care about choice. (This is by now a familiar story.) In our post-metaphysical pluralist age - and all I mean by this is the simple claim that our institutions of justice and conceptions of responsibility ought to be Grafted without reliance on contested metaphysical notions but must be justified through some form of pluralist politics - Scanlon's optimism about a consensus and a mode of testing the reasonable rejectability of principles renders its framework indeterminate and unattractive. Moreover, since his meta-principle ultimately selects for endorsement some general connection of responsibility to individual choice, his credibility as a nonvoluntarist is impugned.
69. For what those deliberative referenda ought to look like, see Ethan J. Leib, Deliberative Democracy in America: A Proposal for a Popular Branch of Government (University Park, PA: Penn State Press 2004).
70. I thank Scott Shapiro for alerting me to the potential objection.
71. Michael Walzer, Spheres of Justice (New York: Basic Books 1983).
72. I am indebted to Charles Blattberg for putting the point this way. See Charles Blattberg, From Pluralist to Patriotic Politics: Putting Practice First (New York: Oxford University Press 2000), p. 43.
73. Dan-Cohen, supra note 7, at 208.