Character, choice and moral agency: The relevance of character to our moral culpability judgments

Social Philosophy and Policy

Volumn 7, Issue 2, 1990, Pages 59-83

  Arenella, Peter ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 84972438169     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052500000765     Document Type: Article

References (38)

1. See generally Michael Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984), pp. 233–243.
2. See H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1978), pp. 37–39.
3. Finally, some utilitarian theorists have also offered nonconsequentalist justifications for accepting this side–constraint so that it operates to limit the pursuit of any utilitarian goal. Punishment and Responsibility, p. 80.
4. See Louis M. Seidman, “Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control,” Yale Law Journal, vol. 94, no. 2 (December 1984), pp. 315–349.
5. See Schulhofer, “Just Punishment In An Imperfect World,” Michigan Law Review, vol. 87, no. 6 (May 1989), pp. 1263–1293, at p. 1271.
6. Hart, Punishment and Responsibility
7. Moore, Law and Psychiatry: Rethinking the Relationship
8. Hyman Gross, A Theory of Criminal Justice (New York: Oxford University Press, 1979)
9. Sanford H. Kadish, “Excusing Crime,” in Blame and Punishment (New York: MacMillan, 1987), pp. 81–106
10. Joshua Dressler, Understanding Criminal Law (New York: Matthew Bender, 1987)
11. Joshua Dressler, “Reflections on Excusing Wrongdoers: Moral Theory, New Excuses, and The Model Penal Code,” Rutgers Law Journal, vol. 19, no. 3 (Spring 1988), pp. 671–716.
12. Moore, “Choice, Character, and Excuse.” I shall use Moore's work throughout this essay to illustrate both the strengths and weaknesses of the rational choice model for two reasons. First, he is a retributivist who believes his model demonstrates the actor's moral culpability for engaging in criminal conduct. Second, his work, in my judgment, offers the most articulate, detailed and subtle account of the rational choice model in the legal literature.
13. While the “choosing self” might include some of the emotions and desires that motivate these choices, the salient moral characteristic of the choosing self remains this capacity for rational and voluntary choice. Choice, Character, and Excuse, text accompanying notes 33–35
14. see also text accompanying notes 41–46 below.
15. Stephen Morse, “Psychology, Determinism, and Legal Responsibility,” ed. Gary B. Melton, Nebraska Symposium on Motivation 1985: Volume 33 (Lincoln: University of Nebraska Press, 1986), pp. 35–85, at p. 60.
16. See American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments), Part I §§ 1.01-2.13 (A.L.I. Institute: Philadelphia, 1985), pp. 225–226.
17. Glanville Williams, Criminal Law: The General Part, (London: Stevens and Sons, 2d ed. 1961), pp. 122–23.
18. See H.L.A. Hart, “Negligence, Mens Rea and Criminal Responsibility,” in Punishment and Responsibility, pp. 136–57.
19. Moore, Law and Psychiatry: Rethinking the Relationship, p. 83.
20. Moors, “Choice, Character, and Excuse,” text accompanying note 92.
21. See Model Penal Code and Commentaries, p. 226, § 2.02(3) which creates a presumption that some consciousness of wrongdoing is required for any crime where the legislature has not explicitly placed a mental state requirement in its definition of the offense.
22. See People v. Goetz, 497 N.E.2d 41 (N.Y. Ct. of Appeals 1986).
23. Full excuses such as duress require the defendant to show not only that he was coerced to commit the crime but that “a person of reasonable firmness in his situation would have been unable to resist.” Model Penal Code and Commentaries, § 2.09( 1), p. 367.
24. Thus, if a person of reasonable firmness would have realized that the person making the threat lacked the ability or will to carry it out, the defense is not available even if the actual defendant made a negligent assessment of these facts because he was so intimidated by the threat, Model Penal Code and Commentaries, p. 374, n. 50.
25. Even the partial excuse of provocation that reduces an intentional killing from murder to voluntary manslaughter requires proof that a “reasonable person” would have lost his normal self-control capacities if subjected to the provocation that prompted the defendant to kill. See Arenella, “The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage,” 77 Columbia Law Review, vol. 77, no. 6 (October 1977), pp. 827–65, at pp. 850–52.
26. See Model Penal Code and Commentaries, § 2.09(1), at p. 367.
27. Moore does offer an alternative “failed justification” account for duress excuses that I shall examine in the last section of this essay. See text accompanying notes 39–40 below.
28. Dressler, “Reflections on Excusing Wrongdoers,” pp. 695–98
29. Moore, Law and Psychiatry: Rethinking the Relationship, pp. 110–11
30. Gross, A Theory of Criminal Justice, pp. 76–77.
31. Moore, “Choice, Character, and Excuse,” text accompanying notes 93–95.
32. To be fair to Moore, he makes these negligence arguments in reply to character theorists such as Nicola Lacey who argue that we should only impose legal blame for criminal acts that do reflect some morally objectionable character trait. See generally Nicola Lacey, State Punishment (London: Routledge, 1988)
33. Michael Bayles, “Character, Purpose, and Criminal Responsibility,” Law and Philosophy, vol. 1, no. 1 (April 1982).
34. Moore, “Choice, Character, and Excuse,” text accompanying notes 37–38.
35. Moore, Law and Psychiatry: Rethinking the Relationship, p. 88 [“characters are themselves constructs created by generalizing about what one does when one's choices are unconstrained.”]
36. Dressler “Reflections on Excusing Wrongdoers,” p. 701.
37. See Richard Brandt, “Traits of Character: A Conceptual Analysis,” American Philosophical Quarterly, vol. 7, no. 1 (January 1970), pp. 23–37.
38. Moore, “Choice, Character, and Excuse,” text at notes 33–34.