Harmful thoughts: Essays on law, self, and morality

Harmful Thoughts: Essays on Law, Self, and Morality

Volumn , Issue , 2009, Pages 1-309

  Dan Cohen, Meir ^a  

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References (331)

1. The well-known text is by Giovanni Pico della Mirandola, Oration on the Dignity of Man, trans. A. Robert Caponigri (Washington, D.C.: Regency Gateway, 1956).
2. But since the essays can also profitably be read separately and out of order, I leave intact a few minor redundancies in the argument, especially between chapters 1 and 8.
3. See Erving Goffman, "Role Distance," in Encounters: Two Studies in the Sociology of Interaction (Indianapolis: Bobbs-Merrill, 1961), 83.
4. See Ferdinand Tönnies, Community and Society, trans. and ed. C. P. Loomis (East Lansing: Michigan State University Press, 1957).
5. This expression is borrowed from Jean-Paul Sartre, Being and Nothingness, trans. Hazel E. Barnes (New York: Simon and Schuster, 1966), 86.
6. Ronald M. Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).
7. See Ronald M. Dworkin, "Law as Interpretation," in The Politics of Interpretation, ed. W. J. T. Mitchell (Chicago: University of Chicago Press, 1983), 287.
8. See Jürgen Habermas, Communication and the Evolution of Society, trans. Thomas McCarthy (Boston: Beacon Press, 1979), chap. 1, and The Theory of Communicative Action, trans. Thomas McCarthy (Boston: Beacon Press, 1981), chap. 3.
9. See Ronald M. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), chap. 4; Dworkin, Law's Empire.
10. Dworkin, Law's Empire, 46-49.
11. John R. Searle, Expression and Meaning (New York: Cambridge University Press, 1979), 4-5.
12. Such problems are discussed, for example, in Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton:Princeton University Press, 1949), chap. 6.
13. For a similar conception of the state and its relation to the self see Peter Gabel, "The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves," Texas Law Review 62 (1984): 1563, at 1563.
14. There is of course considerable literature warning against the fallacy and the danger of conceiving of the state in excessively communal terms. A well-known example is Robert Nisbet, The Quest for Community (New York: Oxford University Press, 1953).
15. See Owen M. Fiss, "The Supreme Court, 1978 Term-Foreword:The Forms of Justice," Harvard Law Review 93 (1979): 1.
16. Stanley Fish, "Still Wrong after All These Years," Law and Philosophy 6 (1987): 401, at 412.
17. Wojciech Sadurski, "It All Comes Out in the End: Judicial Rhetoric and the Strategy of Reassurance," Oxford Journal of Legal Studies 7 (1987): 258.
18. Vincent Blasi, "The Pathological Perspective and the First Amendment," Columbia Law Review 85 (1985): 449 (arguing that courts should interpret the First Amendment to provide maximum protection when intolerance of unorthodox ideas is prevalent and government is likely to stifle dissent).
19. George C. Christie, "Why the First Amendment Should Not Be Interpreted from the Pathological Perspective: A Response to Professor Blasi," Duke Law Journal 1986:683 (advocating that judges should consider legal argument, rather than a theory of societal good, in deciding cases);
20. Vincent Blasi, "The Role of Strategic Reasoning in Constitutional Interpretation: In Defense of the Pathological Perspective," Duke Law Journal 1986:696 (advocating the use of strategic reasoning to safeguard "core" constitutional commitments in First Amendment cases).
21. For a compelling expression of a vision of law and of the judicial role that accentuates their coerciveness see Robert M. Cover, "The Supreme Court, 1982-Foreword: Nomos and Narrative," Harvard Law Review 97 (1983): 4, and "Violence and the Word," Yale Law Journal 95 (1986): 1601.
22. Such a temptation is one of the themes in Peter Gabel and Duncan Kennedy, "Roll Over, Beethoven," Stanford Law Review 36 (1984): 1.
23. See Dworkin, Law's Empire, 228-38.
24. Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (Cambridge: Harvard University Press, 1945), 6.
25. For a similar view see Alf Ross, Directives and Norms (London: Routledge and Kegan Paul, 1968), 91, and On Law and Justice (Berkeley and Los Angeles:University of California Press, 1959), 33.
26. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 39.
27. See Joseph Raz, Practical Reason and Norms (London: Hutchinson, 1975), 50;
28. Ross, Directives and Norms, 107;
29. Georg H. Von Wright, Norm and Action (New York: Humanities, 1963), 70-92.
30. Compare Raz, Practical Reason and Norms, 105, 148;
31. Ross, Directives and Norms, 113.
32. But compare Hart, The Concept of Law, 21-22, noting the ambiguity of the statement that a law is "addressed" to someone.
33. On practical conflict, see Hans Kelsen, Pure Theory of Law (Berkeley and Los Angeles University of California Press, 1967), 25-26;
34. Von Wright, Norm and Action, 144-52.
35. James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan, 1883), 2:107.
36. See Model Penal Code sec. 2.09 comment (Tent. Draft No. 10, 1960);
37. George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), sec. 10.3;
38. Wayne R. LaFave and Austin W. Scott Jr., Handbook on Criminal Law (St. Paul: West, 1972), sec. 49.
39. See infra 71-73.
40. See infra 48-52.
41. Professor Niklas Luhmann believes that, in general, some mode of selective communication is essential to modern societies: "Under conditions [of size and complexity] that exclude the actual interaction between all members of the society, the communication system needs selective intensifiers." Niklas Luhmann, "Differentiation of Society," Canadian Journal of Sociology 2 (1977): 29, at 33.
42. For a discussion of specific strategies, see infra 48, 52-54, 57-62.
43. See Michel Foucault, The History of Sexuality, trans. Robert Hurley (New York: Pantheon, 1978).
44. For an excellent exposition of the view that radically distinguishes the methodology and expectations of the natural sciences from those of the human sciences, as well as for a discussion of the role of interpretation in the latter, see Charles Taylor, "Interpretation and the Sciences of Man," Review of Metaphysics 25 (1971): 3
45. "Understanding in Human Science," Review of Metaphysics 34 (1980): 25.
46. See generally George P. Fletcher, "The Individualization of Excusing Conditions," Southern California Law Review 47 (1974): 25.
47. See infra 62-67.
48. Kadish and Kadish, Discretion to Disobey, 125.
49. Compare Fletcher, Rethinking Criminal Law, sec. 7.5.1, arguing that vagueness of justification and excuse defenses is acceptable on the ground that actors rarely plan the conduct that gives rise to such defenses.
50. This aspect of the strategy of selective transmission is most pronounced when the criminal code delegates the definition of defenses entirely to the courts. See, e.g., N.J. Stat. Ann. sec. 2C:3-2 (West 1982);
51. New Jersey Criminal Law Revision Commission, Final Report: The New Jersey Penal Code (1971), 2:80.
52. See Note, "Intolerable Conditions as a Defense to Prison Escapes," UCLA Law Review 26 (1979): 1126, at 1126-28.
53. See, e.g., People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (1974);
54. Johnson v. State, 379 A.2d 1129 (Del. 1977);
55. State v. Boleyn, 328 So. 2d 95 (La. 1976); People v. Hocquard, 64 Mich. App.
56. 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (1974).
57. 52 Ill. 2d 231, 287 N.E.2d 670 (1972).
58. See, e.g., D'Aquino v. United States, 192 F.2d 338, 357-65 (9th Cir. 1951) (treason);
59. Ross v. State, 169 Ind. 388, 82 N.E. 781 (1907) (arson);
60. Nall v. Commonwealth, 208 Ky. 700, 271 S.W. 1059 (1925) (burglary);
61. State v. St. Clair, 262 S.W.2d 25 (Mo. 1953) (robbery);
62. State v. Ellis, 232 Or. 70, 374 P.2d 461 (1962) (kidnapping).
63. Duress was, however, allowed as a defense to perjury in, for example, Hall v. State, 136 Fla. 644, 679-84, 187 So. 392, 407-9 (1939), and more recently in the English case of Regina v. Hudson, [1971] 2 All E.R. 244 (C.A.).
64. Commonwealth v. Chermansky, 430 Pa. 170, 174, 242 A.2d 237, 240 (1968). But compare Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), which declined to follow an act-at-yourperil rule.
65. Model Penal Code sec. 3.06 comment 15 (Tent. Draft No. 8, 1958).
66. 12 Cal. 3d 470, 526 P.2d 241, 116 Cal. Rptr. 233 (1974).
67. That society considers such an outcome beneficial is attested to by the considerable latitude given police in the use of deadly force against escaping felons and by the defense that ex hypothesi would have been available to Ceballos had he shot at the burglar himself.
68. Ceballos, 12 Cal. 3d at 477, 526 P.2d at 244, 116 Cal. Rptr. at 236.
69. "Almost the only knowledge of law possessed by many people is that ignorance of it is no excuse (ignorantia juris non excusat)." Glanville Williams, Textbook of Criminal Law (London: Stevens, 1978), 405.
70. International Minerals, 402 U.S. at 564-65;
71. United States v. Freed, 401 U.S. 601, 609 (1970);
72. Lambert v. California, 35 U.S. 225, 229 (1957);
73. Reyes v. United States, 258 F.2d 774, 784 (9th Cir. 1958).
74. Lambert, 355 U.S. at 229; Reyes, 258 F.2d at 784-85.
75. State v. Sawyer, 95 Conn. 34, 110 A. 461 (1920);
76. Long v. State, 44 Del. 262, 65 A.2d 489 (1949);
77. State v. Collins, 15 Del. 536, 41 A. 144 (1894).
78. Hargrove v. United States, 67 F.2d 820 (5th Cir. 1933);
79. Long, 44 Del. at 278-79, 65 A.2d at 497; Collins, 15 Del. at 539-40, 41 A. at 145.
80. For a detailed discussion of this distinction, see Glanville L. Williams, Criminal Law-the General Part, 2d ed. (London: Stevens, 1961), secs. 106-17.
81. Lambert v. California, 355 U.S. 225, 228-29 (1957);
82. compare Hayes v. United States, 258 F.2d 774, 784 (8th Cir. 1958) (distinguishing Lambert on the ground, inter alia, that failure to register while crossing the border is not a mere omission).
83. See Bentham, A Fragment on Government, 430.
84. The possibility of conflict is eliminated, of course, only with respect to conventional morality or to whatever other moral system the law embodies.
85. See Oliver Wendell Holmes, "The Path of the Law," in Collected Legal Papers (New York: Harcourt Brace, 1920), 167, at 169-79.
86. This analysis presupposes the view that the normativity of law does not depend on its coerciveness. For an example of this view, see Raz, Practical Reason and Norms, 157-61; compare Finnis, Natural Law, 346-47, on the controversy that evolved in the Wfteenth through seventeenth centuries around the "purely penal law theory" of the nature of the obligation imposed by criminal law.
87. The safe-side principle makes sense only when the agent is confronted with a single moral duty that constrains the pursuit of her self-interest. It is obviously of no help in resolving a conflict between competing moral duties. The criminal law, however, typically deals with the former situation.
88. On the broad implications of the distinction between ordinary and specialized language in the law, see Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977), 10-20 and passim.
89. 2 L.R.-Cr. Cas. Res. 154 (1875).
90. Offences Against the Person Act, 1861, 24 and 25 Vict., chap. 100, sec. 55.
91. See, e.g., Peter Brett, An Inquiry into Criminal Guilt (London:Sweet and Maxwell, 1963), 149;
92. J. Edwards, Mens Rea in Statutory Offences (London: Macmillan, 1955), 58-63;
93. Fletcher, Rethinking Criminal Law, sec. 9.3.3, pp. 723-27;
94. Wil1liams, Criminal Law-the General Part, sec. 69, pp. 185-99.
95. 2 L.R.-Cr. Cas. Res. at 174-75.
96. Williams, Criminal Law-the General Part, sec. 83, p. 241.
97. Graham Hughes, "Criminal Responsibility" (book review), Stanford Law Review 16 (1964): 470, 480-81.
98. 61 Cal. 2d 529, 393 P.2d 673, 39 Cal. Rptr. 361 (1964).
99. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
100. Giacco v. Pennsylvania, 38 U.S. 399, 402-3 (1966).
101. Winters v. New York, 333 U.S. 507, 517-20 (1948);
102. Fox v. Washington, 236 U.S. 273 (1915).
103. United States v. National Dairy Prods. Corp., 372 U.S. 29, 36-37 (1963);
104. Boyce Motor Lines v. United States, 342 U.S. 337, 342 (1952).
105. See Rose v. Locke, 423 U.S. 48, 54-55 (1975) (Brennan, J., dissenting); Franklin v. State, 257 So. 2d 21, 23 (Fla. 1971); "Void-for-Vagueness Doctrine," 73-74.
106. LaFave and Scott, Handbook on Criminal Law, sec. 11, p. 86 (footnotes omitted). For similar criticisms of the reliance on scienter to cure vagueness, see Boyce Motor Lines v. United States, 342 U.S. 337, 345 (1952) (Jackson, J., dissenting);
107. Rex Collings, "Unconstitutional Uncertainty-an Appraisal," Cornell Law Quarterly 40 (1955): 195, 227-31.
108. See, e.g., Boyce Motor Lines v. United States, 34 U.S. 337, 345 (1957) (Jackson, J., dissenting): "[T]he knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." 102. Rose v. Locke, 423 U.S. 48, 50 (1975).
109. Franklin v. State, 257 So. 2d 21 (Fla. 1971).
110. See Thomas Nagel, "Ruthlessness in Public Life," in Mortal Questions (New York: Cambridge University Press, 1979), 75;
111. Williams, "Moral Luck," 547;
112. Walzer, "Political Action: The Problem of Dirty Hands," in War and Moral Responsibility, ed. Marshall Cohen, Thomas Nagel, and Thomas Scanlon (Princeton: Princeton University Press, 1974), 62;
113. see also Hannah Arendt, "Truth and Politics," in Philosophy, Politics, and Society, ed. P. Laslett and W. Runcirnan, 3d ser. (New York:Barnes and Noble, 1967), 104;
114. Max Weber, "Politics as a Vocation," in From Max Weber: Essays in Sociology, ed. and trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 77. Dirty Hands is the title of Sartre's play that deals with this moral issue. See Jean-Paul Sartre, No Exit and Three Other Plays, trans. L. Abel (New York: Vintage, 1956).
115. Joseph Raz, "The Rule of Law and Its Virtue," in The Authority of Law (Oxford: Clarendon Press, 1979), 214. In the following discussion, I rely primarily on the excellent analysis in this essay. Other valuable philosophical treatments of the rule of law can be found in Finnis, Natural Law, 270-76;
116. Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964), 33-94;
117. J. R. Lucas, The Principles of Politics (Oxford: Clarendon Press, 1966), 106-17;
118. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 235-43.
119. See Raz, "Rule of Law," 226.
120. See Fuller, The Morality of Law, 33-41;.
121. Jeremy Bentham, "A General View of a Complete Code of Laws," in The Works of Jeremy Bentham, J. Bowring, ed. (Edinburgh:W. Tait, 1843), 3:155, 161.
122. Jeremy Bentham, "Rationale of Judicial Evidence," in Works, 6:191, 508.
123. In addition to insisting on the clarity and simplicity of all laws, Bentham argued for the publicity of legislative proceedings. See "An Essay on Political Tactics," in Works, 2:299, 310-17, and of judicial proceedings, see "Bentham's Draught for the Organization of Judicial Establishments," in Works, 4:305, 316-18.
124. Raz, "Rule of Law," 220.
125. For this group of arguments, see especially Friedrich A. von Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), 72-87;
126. Rawls, A Theory of Justice, 235-36;
127. Raz, "Rule of Law," 220-22.
128. Raz uses the image of entrapment in this context. See Raz, "Rule of Law," 222.
129. See Fletcher, Rethinking Criminal Law, sec. 10.3, pp. 811-12.
130. See Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (London: Hutchinson, 1948), 62-66, 99-95.
131. These duties include the moral duty to obey the law, whenever such a duty exists.
132. Compare Rawls, A Theory of Justice, 242, arguing that because the value of the rule of law is related to liberty, the rule of law can be curtailed, when necessary, on liberty's behalf.
133. Raz, "Rule of Law," 213-14.
134. See Fuller, The Morality of Law, passim 129.
135. Joseph Raz, "The Institutional Nature of Law," in The Authority of Law, 103, at 112.
136. See also Guido Calabresi and Philip Bobbitt, Tragic Choices (New York: Norton, 1978), 24-26, 78-79, 95, describing situations in which the value of honesty competes against and sometimes loses to other values in what the authors call "tragic" social contexts.
137. Walzer, "Political Action," 64, 65.
138. Obviously, many other pertinent and important issues are not even raised here. Prominent examples would be the complex and crucial role played by lawyers in regard to acoustic separation, and the relation of selective transmission to various theories of democracy.
139. John Austin, The Province of Jurisprudence Determined (New York: Noonday Press, 1954).
140. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 38.
141. Leslie Green, The Authority of the State (Oxford: Clarendon Press, 1988), 41-42. "Definition" may overstate what Green's formulation provides, but it is sufficient for my purpose that it focuses on some central characteristics of authority.
142. I do not consider the possible use by authority of noncoercive spurs or inducements, though I believe that some of my arguments would apply, with variable force, to such milder means as well.
143. See A. J. Simmons, "The Principle of Fair Play," Philosophy and Public Affairs 8 (1979): 333-37;
144. Rolf Sartorius, "Political Authority and Political Obligation," Virginia Law Review 67 (1981): 3.
145. For a view that the coerciveness of political regimes does not vitiate the consent necessary for political obligation, see Alan Wertheimer, "Political Coercion and Political Obligation," in Nomos 14: Coercion, ed. J. Roland Pennock and John Chapman (Chicago: Aldine, 1972), 213.
146. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 38-69.
147. Joseph Raz, "Legitimate Authority," in The Authority of Law (Oxford: Clarendon Press, 1979), 24-25.
148. See John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 334.
149. College Dictionary, rev. ed. (New York: Random House, 1988). The idea of "deference" has also been traditionally prominent in discussions of authority in political philosophy. See Friedman, "Concept of Authority," 64ff.
150. See e.g. A. J. Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), 163.
151. Raz connects the latter two: obeying the law is a matter of identification with one's society because it expresses trust in its institutions. See "Respect for Law," in The Authority of Law, 260-61.
152. For a similar point see Steven Lukes, "Perspectives on Authority," in Raz, Authority, 213-14.
153. Raz, The Authority of Law, 255.
154. The view of sanctions as having only an "ancillary" function in the law's guidance of behavior is emphasized by Hart in The Concept of Law, 38.
155. The concept of exclusionary reasons is elaborated in Joseph Raz, Practical Reason and Norms (London: Hutchinson, 1975).
156. Raz, The Authority of Law, 22-24.
157. Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (London: Hutchinson, 1948).
158. We often experience threats as a challenge or a dare. The present account helps make sense of this reaction.
159. Hans Kelsen, General Theory of Law and State (New York:Russell and Russell, 1961) and Pure Theory of Law, 2d ed. (Berkeley and Los Angeles: University of California Press, 1967).
160. Compare M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" Yale Law Journal 82 (1973): 950, which maintains that whether we recognize a general moral duty to obey the law makes little practical difference.
161. Raz, The Authority of Law, 25.
162. The best-known lines of attack are respectively represented by D. Kahneman, P. Slovic, and A. Tversky, eds., Judgment under Uncertainty (Cambridge: Cambridge University Press, 1982);
163. Herbert Simon, Models of Bounded Rationality (Cambridge: MIT Press, 1982).
164. A recent exception that takes a more normative view is Gerald Dworkin, "Is More Choice Better Than Less?" Midwest Studies in Philosophy 7 (1982): 47.
165. Bernard Williams, Ethics and the Limits of Philosophy (Cambridge:Harvard University Press, 1985), 57.
166. Compare Richard Arneson, "Freedom and Desire," Canadian Journal of Philosophy 15 (1985): 425, 440-41.
167. This of course is a feature of Kant's theory of moral autonomy as well: no one, not even the agent, can ever be sure that a moral action was autonomously motivated.
168. For choice as constitutive of autonomy in recent writing see e.g. R. S. Downie and Elizabeth Telfer, "Autonomy," Philosophy 46 (1971):293;
169. Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge:Cambridge University Press, 1988);
170. Thomas Hurka, "Why Value Autonomy?" Social Theory and Practice 13 (1987): 361.
171. Raz, The Morality of Freedom, 370.
172. The variation is meant to accommodate different views of the exact manner in which one's life is essential to one's identity, e.g., by forging a character that is a constituent of the self's identity.
173. On some of the complications that attend this view, and which cannot be considered here, see Bernard Williams, Problems of the Self (Cambridge: Cambridge University Press, 1973), essays 3 and 4; and Saul Kripke, Naming and Necessity (Oxford: Blackwell, 1980).
174. Examples of the general approach to autonomy I have in mind are Dworkin, Theory and Practice; and Robert Young, Personal Autonomy:Beyond Positive and Negative Liberty (London: Croom Helm, 1986).
175. On the problem of tie-breaking in the case of choosing, see Edna Ullmann-Margalit and Sidney Morgenbesser, "Picking and Choosing," Social Research 44 (1977): 757.
176. Compare Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969), li-lii, who overlooks this dificulty.
177. Even if successful in its own terms, the suggestion I explore would leave out some contested zones of morality, and correspondingly of criminality, such as those concerning the treatment of animals and the environment. I do not touch on these issues, but it should be noted that the harm principle does not directly engage them either.
178. Specifically at the hands of John Stuart Mill, in On Liberty, in Utilitarianism, Liberty, Representative Government (Everyman edition), 158.
179. The idea of human dignity plays a central role in German criminal jurisprudence, though not quite the same role I explore here. For a recent survey see Otto Lagodny, "Human Dignity and its Impact on German Substantive Criminal Law and Criminal Procedure," Israel Law Review 33 (1999): 575.
180. The most comprehensive exploration and critique of the principle is by Joel Feinberg, in his four-volume magnum opus, The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984-88).
181. James Fitzjames Stephens, Liberty, Equality, Fraternity, ed. R. J. White (Cambridge: Cambridge University Press, 1873, 1967).
182. "The Crisis of Overcriminalization," in Sanford H. Kadish, Blame and Punishment: Essays in the Criminal Law (New York: Macmillan, 1987), 21.
183. Bernard Harcourt, "The Collapse of the Harm Principle," Journal of Criminal Law and Criminology 90 (1999): 109.
184. 204 Cal. App. 2d 832; 23 Cal. Rptr. 92 (1962).
185. 326 S.E. 2d 410 (S.C. 1985). The eponymous defendant in this case is Brown; I refer to the case by the name of the second defendant (Braxton) to avoid confusion with the other case entitled State v. Brown I discuss next.
186. All the court says in explaining withholding the option of castration is that such punishment would be in violation of the state's constitutional prohibition against cruel and unusual punishment. No mention is made of the possible relevance of the defendants' preference in the matter.
187. 364 A.2d 27 (N.J. Super. Ct. Law Div. 1976), aff'd, 381 A.2d 1231 (N.J. Super. Ct. App. Div. 1977).
188. For a related discussion of puzzles to which victims' consent can give rise see Leo Katz, Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law (Chicago: University of Chicago Press, 1996), 145-57.
189. See, e.g., R. M. Hare, "What Is Wrong with Slavery," Philosophy and Public Affairs 8 (1979): 103.
190. Compare Don Herzog, Happy Slaves: A Critique of Consent Theory (Chicago: University of Chicago Press, 1989), preface, where the author raises some of these issues, but eschews the use of the kinds of thought experiments I indulge in favor of an historical study of the idea of consent in liberal theory.
191. The locus classicus of this discussion is in John Stuart Mill, On Liberty. For a critical commentary of Mill's argument, see Chin Liew Ten, Mill on Liberty (New York: Oxford University Press, 1980), 117-23.
192. There is a rapidly growing literature on dignity as a legal value. Some important essays are collected in Michael Meyer and W. A. Parent, eds., The Constitution of Rights: Human Dignity and American Values (Ithaca, N.Y.: Cornell University Press, 1992).
193. But the tradition has not gone unchallenged. On the independence of dignity from the value of choice, see Robert Goodin, "The Political Theories of Choice and Dignity," American Philosophical Quarterly 18 (1981): 91;
194. on the independence of dignity from consent, see R. George Wright, "Consenting Adults: The Problem of Enhancing Human Dignity Non-Coercively," Boston University Law Review 75 (1995): 1397.
195. Though the court recognizes that the participants' consent is a defense in the case of sports such as football, boxing, or wrestling, no convincing explanation is given as to what distinguishes these cases from the instant case.
196. The "our" here simply refers to those who subscribe to the morality of dignity to which I allude.
197. For a suggestion along similar lines see Thomas E. Hill Jr., "Basic Respect and Cultural Diversity," in Respect, Pluralism, and Justice:Kantian Perspectives (New York: Oxford University Press, 2000), 59.
198. E.g., People v. Chen, no.87-774 (N.Y. Sup. Ct. Dec. 2, 1988); cited in Doriane Lambelet Coleman, "Individualizing Justice through Multiculturalism: The Liberals' Dilemma," Columbia Law Review 96 (1996): 1093, at 1102-3.
199. And becomes highly charged. For one heated exchange see Coleman, "Individualizing Justice through Multiculturalism," at 1098
200. Leti Volpp, "Talking 'Culture': Gender, Race, Nation, and the Politics of Multiculturalism," Columbia Law Review 96 (1996): 1573, esp. at 1594-1600.
201. Herbert Morris, "Punishment for Thoughts," in On Guilt and Innocence (Berkeley and Los Angeles: University of California Press, 1976), 1-29.
202. For some further reflections on this theme see Douglas Husak, Philosophy of Criminal Law (Totowa, N.J.: Rowman and Littlefield, 1987), 97-99, 103-5.
203. For an explicit statement of this assumption, see, e.g., R. A. Duff, Criminal Attempts (Oxford: Clarendon Press, 1996), 313-14: "even practical thought [deliberation, intention-formation, choice] does not, by itself, impinge on the world: it must be translated into action; and we can say that it is by action (as distinct from mere thought) that agents impinge on or make a difference to the world." 4. See, for example, Joseph Tussman, Government and the Mind (New York: Oxford University Press, 1977), 88.
204. See e.g. Joel Feinberg, Harmless Wrongdoing (New York: Oxford University Press, 1988), 23-24;
205. Husak, Philosophy of Criminal Law, 105;
206. Duff, Criminal Attempts, 314.
207. See, e.g., Willard Van Orman Quine, Word and Object (Cambridge:MIT Press, 1960), chaps. 1-2.
208. Jeremy Bentham, The Principles of Morals and Legislation (New York: Hafner Press, 1948), 1.
209. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 42-45.
210. 352 U.S. 432 (1956).
211. 204 Cal. App. 2d 832; 23 Cal. Rptr. 92 (1962), discussed in chapter 5.
212. The example is discussed by George Pitcher in "The Misfortunes of the Dead," American Philosophical Quarterly 21 (1984): 183;
213. Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), 90-91.
214. Pitcher, "Misfortunes of the Dead," diagnoses the problem this case poses in similar terms. I propose a different solution from his, though the two, I think, are consistent. Mine, however, leads more directly to the claim I seek to establish concerning the extrapersonal effects of thoughts.
215. For a discussion of "vicarious harms" along such lines see Feinberg, Harm to Others, at 70-79.
216. Guy de Maupassant famously stated that the tower was his favorite lunch place in Paris, being the one place from which the tower could not be seen; he is also said to have left Paris permanently to avoid looking at the tower.
217. So I do not mean to raise the separate question whether there is a useful logical or ontological sense that would admit the "properties" ordinary speech implicitly excludes, or, for that matter, exclude "properties" that the latter takes for granted.
218. Cases of this kind are also sometimes discussed in connection with the concept of happiness. See, for example, Richard Kraut, "Two Conceptions of Happiness," Philosophical Review 88 (1979): 167-97.
219. These two categories are not exhaustive: physical objects, such as geographic locations, can also play the part of a relational term. They are however irrelevant to our present concerns.
220. Compare David Hume, "Of the Dignity and Meanness of Human Nature," in Political Essays, ed. Charles W. Hendel (Indianapolis: Bobbs-Merrill, 1953).
221. Hence, the examples recently adduced by Thomas Nagel to demonstrate the perils of excessive candor in social interactions fall outside the purview of my argument. See his "Concealment and Exposure," Philosophy and Public Affairs 27 (1998): 3, 10-17.
222. The main papers are Hilary Putnam, "The Meaning of 'Meaning,'" in Philosophical Papers (London: Cambridge University Press, 1975), 2:215;
223. Tyler Burge, "Individualism and the Mental," Midwest Studies in Philosophy 4 (1979): 73-121, and "Other Bodies," in Thought and Object, ed. Andrew Woodfield (New York: Oxford University Press, 1982), 97.
224. Consider Professor Packer's blunt move to short-circuit the whole issue: "Very simply, the law treats man's conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were." Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, Calif.: Stanford University Press, 1968), 74-75.
225. See, e.g., Michael S. Moore, "Choice, Character, and Excuse," Social Philosophy and Policy 7 (1990): 29;
226. Peter Arenella, "Character, Choice, and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments," Social Philosophy and Policy 7 (1990): 59.
227. Notable recent examples include Michael J. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982);
228. Roberto M. Unger, Passion (New York: Free Press, 1984). For a related criticism of legal scholarship for its failure to consider the lawcreating subject, see Pierre Schlag, "The Problem of the Subject," Texas Law Review 69 (1991): 1627.
229. H. L. A. Hart draws attention to the ambiguity of responsibility statements, although he construes it quite differently. See H. L. A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968), 186, 196-97.
230. A sense of responsibility that corresponds to what I call subjectresponsibility is suggested in Joel Feinberg, "Collective Responsibility," in Doing and Deserving (Princeton: Princeton University Press, 1970), 222, 250-51;
231. Eugene Schlossberger, "Why We Are Responsible for Our Emotions," Mind 95 (1986): 37.
232. An account of responsibility for emotions that is based on what I call object-responsibility may be found in Edward Sankowski, "Responsibility of Persons for Their Emotions," Canadian Journal of Philosophy 7 (1977): 829.
233. See, e.g., Richard Rorty, Contingency, Irony, and Solidarity (Cambridge:Cambridge University Press, 1989), esp. chap. 2.
234. René Descartes, Meditations on First Philosophy, in The Philosophical Writings of Descartes, trans. John Cottingham, Robert Stoothoff, and Dugald Murdoch (Cambridge: Cambridge University Press, 1984), 2:1.
235. Most prominently in Being and Nothingness.
236. See Henry G. Frankfurt, "Identification and Externality" and "Identification and Wholeheartedness," both in The Importance of What We Care About (Cambridge: Cambridge University Press, 1988), 58, 167.
237. Erving Goffman, Encounters (Indianapolis: Bobbs-Merrill, 1961), 85-152;
238. "The Underlife of a Public Institution: A Study of Ways of Making Out in a Mental Hospital," in Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Garden City, N.Y.:Anchor, 1961), 171, 318-20.
239. The primary modern text on the social origins of the self is George H. Mead, Mind, Self, and Society (Chicago: University of Chicago Press, 1934). For a more recent statement, see Peter L. Berger and Thomas Luckmann, The Social Construction of Reality (Garden City, N.Y.:Doubleday, 1966), 173-80.
240. Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), part 3, esp. 199-306.
241. The occurrence of such an aberrant reaction, however, may assume different significance over time. For example, if such "aberrations" recur, they may have to be incorporated into the ever revisable picture of the self and thus change its constitution.
242. Obviously, an experience of shame is not a sufficient condition for responsibility when the experience results from a factual mistake: as it turns out, it was not really me who overturned the vase; it was the wind, or someone else.
243. Here again, the simplest case is one that involves a factual mistake:I did not notice at Wrst that it was my hand that overturned the vase.
244. As in the corresponding situation mentioned in note 19 above, persistent failure to assume a responsible stance under similar circumstances will eventually be incorporated in the composition of the self and will suggest a revision of its boundaries.
245. See Aristotle, Nicomachean Ethics, book 3, chap. 5.
246. For an interpretation (or rather a reconstruction) of Aristotle's theory of moral responsibility that tries to avoid this problem, see T. H. Irwin, "Reason and Responsibility in Aristotle," in Essays on Aristotle's Ethics, ed. Amelie O. Rorty (Berkeley and Los Angeles: University of California Press, 1981), 117, 126-44.
247. This is in one sense Kant's own solution; roughly, we are responsible not because we "will our will" but because we are our will as noumenal selves. See Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (London: Hutchinson, 1948), 101-2;
248. see also Allen W. Wood, "Kant's Compatibilism," in Self and Nature in Kant's Philosophy, ed. Allen W. Wood (Ithaca, N.Y.: Cornell University Press, 1984), 73.
249. See, e.g., Alfred J. Ayer, "Freedom and Necessity," in Philosophical Essays (New York: St. Martin's Press, 1954), 271;
250. John V. Canfield, "The Compatibility of Free Will and Determinism," Philosophical Review 71 (1962): 352.
251. Charles Taylor, "Responsibility for Self," in Free Will, ed. Gary Watson (New York: Oxford University Press, 1982), 111, 112.
252. These "dimensions" should not be reified and rigidly separated. They are merely heuristic aids meant to facilitate a mental grip on the unitary category of the self. As explained below, the same phenomena can sometimes be explained by reference to different dimensions of the self.
253. This is not to say that people are responsible for all the effects traceable to their bodies. In part 3, I illustrate some of the ways in which one can try to avoid responsibility by distancing oneself from certain aspects of one's bodily existence.
254. See part 4.
255. See Rylands v. Fletcher, 3 L.R-E. & I. App. 330 (H.L. 1868).
256. See Page v. Hollingsworth, 7 Ind. 317 (1855).
257. For a succinct statement see Rudolph von Jhering, The Struggle for Law, 2d ed., trans. John J. Lalor (Chicago: Callaghan and Company, 1915), 59: "Property is but the periphery of my person extended to things." For a recent exposition of this perspective, see Margaret J. Radin, "Property and Personhood," Stanford Law Review 34 (1982):957, 959. I elaborate my own version of such a theory in chapter 9.
258. See Merleau-Ponty, Phenomenology of Perception, 143. In chapter 9 I propose a more elaborate picture, in which identification with the body and other objects is not based directly on the phenomenology described here, but is linguistically mediated by the use of the concept "I." 38. Although the common law does not generally recognize parents' vicarious liability, many jurisdictions have statutory provisions to this effect. For a survey, see Note, Emogene C. Wilhelm, "Vicarious Parental Liability in Connecticut: Is It Effective?" University of Bridgeport Law Review 7 (1986): 99, 121-24.
259. For one commentator's testimony of the difficulties encountered in this area, see George P. Fletcher, Rethinking Criminal Law (Boston:Little, Brown, 1978), sec. 8.5, p. 649: "Tort scholars have been puzzled for decades to explain the tort rule in employer liability cases." 40. For a comprehensive examination and rejection of the different arguments that might uphold the relevance of actual harm
260. see Stephen J. Schulhofer, "Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law," University of Pennsylvania Law Review 122 (1974): 1497.
261. See, e.g., Thomas Nagel, "Moral Luck," in Mortal Questions (New York: Cambridge University Press, 1979), 24;
262. Bernard Williams, "Moral Luck," in Moral Luck (Cambridge: Cambridge University Press, 1981), 20.
263. See Williams, "Moral Luck," 20-22.
264. See, e.g., Feinberg, "Collective Responsibility," 248-51;
265. Thomas R. Flynn, "Collective Responsibility and Obedience to the Law," Georgia Law Review 18 (1984): 845, 846-52;
266. Virginia Held, "Moral Responsibility and Collective Action," in Individual and Collective Responsibility, ed. Peter A. French (Cambridge, Mass.: Schenkman, 1972), 101, 108-9.
267. See, e.g., Feinberg, "Collective Responsibility," 233.
268. "From our attribution of an action, and moral responsibility, to a collectivity, it does not follow that the collectivity's members are morally responsible for the action of the collectivity." Held, "Moral Responsibility," 109 (footnote omitted).
269. See, e.g., John P. Hewitt, Self and Society: A Symbolic Interactionist Social Psychology (Boston: Allyn and Bacon, 1976), 91-95.
270. My discussion focuses on the social or cultural meaning of "American identity," not on the formal meaning, as with citizenship requirements.
271. See Stanley Bates, "My Lai and Vietnam: The Issues of Responsibility," in French, Individual and Collective Responsibility, 145, 155-57, 161-63.
272. "[I]t is of the very essence of our deep-rooted notions of criminal liability that guilt be personal and individual." Francis B. Sayre, "Criminal Responsibility for the Acts of Another," Harvard Law Review 43 (1943): 689, 717.
273. Wayne R. LaFave and Austin W. Scott Jr., Handbook of Criminal Law, 2d ed. (St. Paul: West, 1986), sec. 6.8, p. 588 (footnote omitted).
274. See, e.g., Phillip E. Johnson, "The Unnecessary Crime of Conspiracy," California Law Review 61 (1973): 1137.
275. People v. Kessler, 315 N.E.2d 29, 30-31 (Ill. 1974).
276. This does not amount to an endorsement of the decision or the doctrine. Responsibility, in the sense discussed here, is a necessary but not a sufficient ground for criminal liability; the latter also requires blame. The conclusion that the defendant is not responsible for an offense precludes liability, but Wnding responsibility does not by itself authorize criminal punishment. Further conditions of blameworthiness must be satisfied, but they fall outside my present topic.
277. 1 W.L.R. 317 (1955).
278. Criminal law theory casts this issue as a dispute over the adequate definition of "act"-that is, whether the definition should include a reference to the element of voluntariness. See, e.g., Herbert Morris, Freedom and Responsibility (Stanford, Calif.: Stanford University Press, 1961), 105-7.
279. There are in fact references in the decision to the impairment of Charlson's self-control as a result of the tumor. See Charlson, 1 W.L.R. at 320-22.
280. For data concerning the treatment of child molesters in a number of jurisdictions see Josephine Bulkley, ed., Innovations in the Prosecution of Child Sexual Abuse Cases (Washington, D.C.: American Bar Association, 1981), 9-134.
281. 2 All E.R. 801 (H.L. 1952).
282. Model Penal Code, sec. 210.3(1)(b) (Proposed Official Draft 1962).
283. Model Penal Code and Commentaries, part II, sec. 210.3, at 56 (Official Draft and Revised Comments 1980).
284. Royal Commission on Capital Punishment, 1949-1953, Report (London: Her Majesty's Stationery Office, 1953), 52-53.
285. Glanville L. Williams, Textbook of Criminal Law, 2d ed. (London: Stevens, 1983), 548.
286. Fletcher, Rethinking Criminal Law; the quotations are from sec. 4.2, pp. 247 and 249, and sec. 6.8, pp. 513-14.
287. The ordinary use of these terms only roughly approximates the conceptual distinction I want to make.
288. For the centrality of the notion of "coping" in Heidegger's conception of the self, see Hubert L. Dreyfus, Being-in-the-World (Cambridge: MIT Press, 1991), 67-75.
289. These two interpretations of duress are elaborated in Fletcher, Rethinking Criminal Law, secs. 10.3-10.3.4, pp. 798-810.
290. 378 A.2d 755 (N.J. 1977). Dr. Toscano, a chiropractor, was charged with aiding the preparation of a fraudulent insurance claim by making out a false medical report and was convicted of conspiring to obtain money by false pretenses. Toscano claimed that he had been under threats to his own and his wife's safety. The conviction was reversed on appeal.
291. Judge Bazelon has argued for an expanded insanity defense that extends to extreme social deprivation. See David L. Bazelon, "The Morality of the Criminal Law," Southern California Law Review 49 (1976): 385, 394-98;
292. see also Richard Delgado, "Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?" Law and Inequality Journal 3 (1985): 9, 12.
293. See Mark Kelman, "Interpretive Construction in the Substantive Criminal Law," Stanford Law Review 33 (1981): 591, 643-44.
294. Blackstone, for example, lists the execution of condemned criminals as the Wrst item in his discussion of justified homicide; self-defense appears later in that discussion. See William Blackstone, Commentaries on the Laws of England (London: T. Cadell, 1791), 4:178.
295. Compare Nagel, "Ruthlessness in Public Life," in Mortal Questions, 75;
296. Williams, "Politics and Moral Character," in Moral Luck, 54;
297. Michael Walzer, "Political Action: The Problem of Dirty Hands," in War and Moral Responsibility, ed. Marshall Cohen, Thomas Nagel, and Thomas Scanlon (Princeton: Princeton University Press, 1974), 62.
298. See generally LaFave and Scott, Handbook of Criminal Law, sec. 3.3, pp. 211-12.
299. For a Kantian interpretation of criminal law's main doctrines, see David Richards, "Human Rights and the Moral Foundations of Substantive Criminal Law," Georgia Law Review 13 (1979): 1395.
300. Throughout this essay I use intention broadly and interchangeably with mental state to include such things as beliefs, emotions, and desires.
301. John R. Searle, Speech Acts (Cambridge: Cambridge University Press, 1969), 60-65, and Expression and Meaning (Cambridge: Cambridge University Press, 1979), 4-5.
302. For the sake of this example I simply stipulate a majority rule for the jury's decision rather than a requirement of unanimity. Nothing substantive in my argument depends on this stipulation.
303. Harry G. Frankfurt, "Identification and Externality" and "Identification and Wholeheartedness," in The Importance of What We Care About (Cambridge: Cambridge University Press, 1977), 50 and 159.
304. I do not mean to suggest that these benefits provide the main reasons or explanations for the theater, but only that they can be usefully extrapolated from the theater example in order to illuminate the nature of official roles.
305. On the use by sociologists of the theater analogy to explore the nature of social roles, compare E. Burns, Theatricality: A Study of Convention in Theater and in Social Life (New York: Harper and Row, 1972).
306. A similarly scalar conception of self is argued for by Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), part 3.
307. G. C. MacCallum Jr., "Legislative Intent," Yale Law Journal 75 (1966): 745, 773.
308. See e.g. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
309. Compare the increased First Amendment protection given to abusive language directed to police officers as reflecting and encouraging an increased role distance in their case. See Lewis v. New Orleans, 408 U.S. 913 (1972).
310. Probably the best statement of this approach is in Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), chap. 7.
311. My discussion is limited to the ownership by an individual owner of physical objects. This leaves out, among many things, important forms of wealth such as ownership of stock, collective ownership of various kinds, etc. Though my discussion bears indirectly on these kinds of property, I do not deal with them here.
312. Exchange value, such as that of money, is obviously parasitic on such primary advantages as those I list. However, the concept of object value and the analysis based on it pertain to objects with such secondary value as well.
313. See Wesley Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal 23 (1913): 16;
314. A. M. Honoré, "Ownership," in Oxford Essays in Jurisprudence (Wrst series), ed. A. G. Guest (Oxford: Clarendon Press, 1961), 107;
315. Frank Snare, "The Concept of Property," American Philosophical Quarterly 9 (1972): 200;
316. Thomas Grey, "The Disintegration of Property," Nomos 22: Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1980), 69-85;
317. Stephen Munzer, A Theory of Property (Cambridge: Cambridge University Press, 1990), 22-23.
318. Wooley v. Maynard, 430 U.S. 705 (1976).
319. Immunity to such error is associated with the use of I "as subject," in Wittgenstein's terminology. See The Blue and Brown Books (New York: Oxford University Press, 1958), 66-67.
320. For a clear statement of the issues involved see Sydney Shoemaker, "Self-reference and Self-Awareness," Journal of Philosophy 65 (1968): 555.
321. Cf. Eddy Zemach, "The Reference of 'I,'" Philosophical Studies 23 (1972): 68. The problem of drawing the boundaries of the entity to which I refers is also raised in Michael Woods, "Reference and Self-Identification," Journal of Philosophy 65 (1968): 568.
322. These comments draw heavily on John R. Searle, The Construction of Social Reality (New York: Free Press, 1995);
323. see also Margaret Gilbert, On Social Facts (Princeton: Princeton University Press, 1992).
324. Cf. the view of self-ownership as stated in 1646 by the Leveller Richard Overton, in An Arrow against all Tyrants: "for every one as he is himselfe, so he hath a selfe propriety, else could he not be himselfe." (Cited in Day, "Locke on Property," at 219.)
325. See sources cited in note 22.
326. See for example Blackstone's classical definition of ownership as "the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." William Blackstone, Commentaries on the Laws of England, 11th ed. (London: T. Cadell, 1791), 2:2.
327. Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), part 3.
328. Breithaupt v. Abram, 352 U.S. 432 (1956).
329. Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), part 3.
330. Breithaupt v. Abram, 352 U.S. 432 (1956).
331. The most influential source of the modern secular conception of dignity is Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (London: Hutchinson, 1948), 96-97.