9/19
Class ending early! Good natured fake groans….
Voluntary act requirement: laws are mainly not about mental state, about physical state: the action.
How to define an act?
Philosophers: a bodily movement.
Voluntary act? Volitional body movement.
Is that how we should simply understand “act” in criminal law?
Marmor: No.
Consider: Crimes of Omission (failure to file a tax return…)
We need to explain Crimes of Omission in any good account of Voluntary Acts…
Strange case of Mr. Newton, who shot a policeman while unconscious….acquitted! M: unlikely...perhaps he forgot b/c of PTSD, but that’s different. Compare similar: truck driver who had sneezing fit and caused a serious accident: acquitted. Father throws baby out window: acquitted b/c of his brain tumor.
(Instinctive/habitual reactions, otoh, count as Voluntary Acts. )
Why discuss such bizarre cases? This issue is at the *heart* of criminal law--all of it!
M: here’s how to think about it.
What you do--conduct
Who you are--character
What happens to you--luck
The first one counts, the second not officially, the third not at all, when setting the criteria/scope of criminal law. (For the most part, but obviously there’s slippage.)
Criminal law, then, considers conduct.
Why?
M: it’s about choice? To an important extent, but not exclusively.
What else? M: some aspects of character reflect choice.
M: also, pure basis in choice can hardly explain a) strict liability crimes; and b) negligence.
M: another principle: PAP (in reading) Principle of Alternate Possibilities; i.e. we can only punish if you could have done otherwise. That might be the intuition under the VAR. But Harry Frankel showed that making a choice might be same as not having a choice (in certain circumstances), because rejected choice was illusory in any case.
Yaffe’s suggested solution: VAR is not about Actus Reus--it’s about the *correspondence* between AR and Mens Rea.
e.g., they might not correspond in time. A forms intention to kill B in 2000; then, he forgets. However, in 2013, he runs him over with a car: by accident! MR and AR don’t match anymore. He would be guilty of manslaughter, not murder. The intention is missing in a special sense: not that he doesn’t have it, but that it doesn’t correspond anymore.
Actions are intentional only to the extent that the intention *guides* the action. It tracks through the action all the way.
Saturday, September 21, 2013
Thursday, September 5, 2013
Phil 135 lecture 9/4: Paternalism
9/4
Justification(s) of Paternalism: which comes under the larger question of, What kinds of things may the law, morally, regulate?
The law curtails our freedom of action in many ways besides just criminal punishment. E.g. licenses and regulations, which are by definition types of limitation or restriction.
What underlying principle can justify this kind of action?
J.S. Mill identified “the harm principle.” Actions that might cause harm to others deserve to be regulated or restricted. Next question: what is “harm”? Defined by Mill as “a setback to someone’s interest or well-being.” This is a legitimate area for legal regulation.
Note: not everything we dislike counts as “harm”! If I want the moon to be green but it’s not, that doesn’t count as harm; or say I’m homophobic, and there are homosexuals around: that’s not a harm, because my life isn’t truly affected or set back.
We regulate many non-harms (e.g. by zoning laws). What if we go to a restaurant and a couple is having sex on a table? You aren’t harmed per se, but it may constitute an offense. You will be offended, and perhaps reasonably so, given normal expectations for dining out. Very difficult to regulate so many subjective areas, so we handle it by regulating the places where things may be permitted: zones of conduct.
What about harm to self? Do we have a right to legislate against that? If we do, we are by definition engaging in Paternalism. Seat-belt laws are a good example. Paternalism not confined to the legal realm: parents are paternalistic; teachers can be; friends too.
You can be paternalistic towards yourself: go on a diet, put a timer lock on your fridge! We can have multiple parties involved, some indirectly: Father A tells older son B “Don’t smoke in the house, you’re a bad example for your little brother [C]!”
A common example: regulating prescriptions. “A” state tells “B” pharmacist not to dispense w/o prescription to protect “C” patient/consumer.
These examples are a can of worms! Why make a law about seat belts, for example? Why not just inform people that they save lives? Well, most people would ignore. But by what right does the state interfere with that impulse?
Hold that question: but for now, consider what other mechanisms state can use to accomplish paternalism? Answer: Default Rules. By default, you’re in Social Security, so you will have some savings in your old age, whether you want that or not. Industry does this too with pensions, but they give you the option to opt out. But the default is to be enrolled and have money deducted.
Libertarianism is the opposite of Paternalism.
Direct Paternalism examples:
recreational drug laws
regulation of minors’ activities
truancy laws
mandatory healthcare requirement [which suggests that Paternalism and Consequentialism are closely linked]
gambling laws
Indirect Paternalism examples:
doctor assisted suicide regulations
teacher licensing [most forms of licensing???]
mandatory curriculum
censorship of songs, movies
safety regulations for employers
Marmor: why go through these example? Because they’re problematic!
For each paternalistic law, we can find other rationales. E.g. seat belts: we don’t care about the driver, we care about social costs of accidents! That’s our justification!
Healthcare law: paternalistic, but truer justification is social justice: making young people subsidize the older, which is also reciprocal justice.
Hence, paternalistic justifications are unconvincing; they lose credibility--even when they’re legitimate. That’s a problem for society, as is wrong understanding. [“In order for the state to be well-governed, we first need to call everything by its right name” Confucius]
We still don’t have a justification of paternalism!
Justification(s) of Paternalism: which comes under the larger question of, What kinds of things may the law, morally, regulate?
The law curtails our freedom of action in many ways besides just criminal punishment. E.g. licenses and regulations, which are by definition types of limitation or restriction.
What underlying principle can justify this kind of action?
J.S. Mill identified “the harm principle.” Actions that might cause harm to others deserve to be regulated or restricted. Next question: what is “harm”? Defined by Mill as “a setback to someone’s interest or well-being.” This is a legitimate area for legal regulation.
Note: not everything we dislike counts as “harm”! If I want the moon to be green but it’s not, that doesn’t count as harm; or say I’m homophobic, and there are homosexuals around: that’s not a harm, because my life isn’t truly affected or set back.
We regulate many non-harms (e.g. by zoning laws). What if we go to a restaurant and a couple is having sex on a table? You aren’t harmed per se, but it may constitute an offense. You will be offended, and perhaps reasonably so, given normal expectations for dining out. Very difficult to regulate so many subjective areas, so we handle it by regulating the places where things may be permitted: zones of conduct.
What about harm to self? Do we have a right to legislate against that? If we do, we are by definition engaging in Paternalism. Seat-belt laws are a good example. Paternalism not confined to the legal realm: parents are paternalistic; teachers can be; friends too.
You can be paternalistic towards yourself: go on a diet, put a timer lock on your fridge! We can have multiple parties involved, some indirectly: Father A tells older son B “Don’t smoke in the house, you’re a bad example for your little brother [C]!”
A common example: regulating prescriptions. “A” state tells “B” pharmacist not to dispense w/o prescription to protect “C” patient/consumer.
These examples are a can of worms! Why make a law about seat belts, for example? Why not just inform people that they save lives? Well, most people would ignore. But by what right does the state interfere with that impulse?
Hold that question: but for now, consider what other mechanisms state can use to accomplish paternalism? Answer: Default Rules. By default, you’re in Social Security, so you will have some savings in your old age, whether you want that or not. Industry does this too with pensions, but they give you the option to opt out. But the default is to be enrolled and have money deducted.
Libertarianism is the opposite of Paternalism.
Direct Paternalism examples:
recreational drug laws
regulation of minors’ activities
truancy laws
mandatory healthcare requirement [which suggests that Paternalism and Consequentialism are closely linked]
gambling laws
Indirect Paternalism examples:
doctor assisted suicide regulations
teacher licensing [most forms of licensing???]
mandatory curriculum
censorship of songs, movies
safety regulations for employers
Marmor: why go through these example? Because they’re problematic!
For each paternalistic law, we can find other rationales. E.g. seat belts: we don’t care about the driver, we care about social costs of accidents! That’s our justification!
Healthcare law: paternalistic, but truer justification is social justice: making young people subsidize the older, which is also reciprocal justice.
Hence, paternalistic justifications are unconvincing; they lose credibility--even when they’re legitimate. That’s a problem for society, as is wrong understanding. [“In order for the state to be well-governed, we first need to call everything by its right name” Confucius]
We still don’t have a justification of paternalism!
Wednesday, September 4, 2013
Sept. 2: third Phil 135 lecture
9/2
recap of two types of justification and their problems
recap of “fair play” theory and its problems
Another alternative: a view that sees punishment as *communicating* serious condemnation of criminal conduct. (viz. Anthony Dunn (sp?)) Explains the typically public nature of punishment. But how can we explain move from a) censure to b) causing suffering? AM says we can’t: logically independent. (No room from pragmatic accounts here, it seems: reinforcement, effectiveness.)
Cites H.L.A. Hart 1930 article which suggests a way to combine Cons. and Retrib.: if they answer two different questions, we can. We should separate 2 questions when trying any justification: 1) general justifying aim, i.e. what justifies the main purpose of a practice? But then, others: 2) the q. of distribution: i.e. how do we/can we implement it? e.g. who can we punish and how much? (Can separate other questions this way too: Why private property? How and who gets it?)
So, Cons. answers 1) and Retrib answers 2) e.g. we punish to deter, which the state does most efficiently (1); but we only punish proportionally (2).
Retrib’s restraints are deontological: what we ought to do (independently of consequences). Hart prefers to emphasize the notion of fairness in Retrib (not vengeance). Not same as “fair play” theory, which is a poor explanation of criminal motives. But what’s the content of this “fairness”? We can tap into elaborate theories of fairness from other sources: e.g. the “gotcha” principle: if we say X is required, and you plan for that, we can’t change in midstream. (Notions of promising and implied promising: if law is to guide, it has to be predictable and consistent.)
But can general notions of fairness inform us about proportionality? To some extent: we are steered by it in our calculations of choice (e.g. to kill the person we robbed, if the punishment of theft is death, as in England 18th c.) We can calculate “roughly same wrong” to equal “roughly same punishment.” But we have trouble calculating “how much punishment?” goes with “This kind of crime.” Which is why we have so much variation...even if we followed logic, there’s no clear logic to follow!
Next time: justifying legal regulation per se. Paternalism and others.
recap of two types of justification and their problems
recap of “fair play” theory and its problems
Another alternative: a view that sees punishment as *communicating* serious condemnation of criminal conduct. (viz. Anthony Dunn (sp?)) Explains the typically public nature of punishment. But how can we explain move from a) censure to b) causing suffering? AM says we can’t: logically independent. (No room from pragmatic accounts here, it seems: reinforcement, effectiveness.)
Cites H.L.A. Hart 1930 article which suggests a way to combine Cons. and Retrib.: if they answer two different questions, we can. We should separate 2 questions when trying any justification: 1) general justifying aim, i.e. what justifies the main purpose of a practice? But then, others: 2) the q. of distribution: i.e. how do we/can we implement it? e.g. who can we punish and how much? (Can separate other questions this way too: Why private property? How and who gets it?)
So, Cons. answers 1) and Retrib answers 2) e.g. we punish to deter, which the state does most efficiently (1); but we only punish proportionally (2).
Retrib’s restraints are deontological: what we ought to do (independently of consequences). Hart prefers to emphasize the notion of fairness in Retrib (not vengeance). Not same as “fair play” theory, which is a poor explanation of criminal motives. But what’s the content of this “fairness”? We can tap into elaborate theories of fairness from other sources: e.g. the “gotcha” principle: if we say X is required, and you plan for that, we can’t change in midstream. (Notions of promising and implied promising: if law is to guide, it has to be predictable and consistent.)
But can general notions of fairness inform us about proportionality? To some extent: we are steered by it in our calculations of choice (e.g. to kill the person we robbed, if the punishment of theft is death, as in England 18th c.) We can calculate “roughly same wrong” to equal “roughly same punishment.” But we have trouble calculating “how much punishment?” goes with “This kind of crime.” Which is why we have so much variation...even if we followed logic, there’s no clear logic to follow!
Next time: justifying legal regulation per se. Paternalism and others.
Friday, August 30, 2013
8/29: Second philosophy 135 lecture
135/8/29 Second philosophy lecture
Consequentialism is an instrumental philosophy: means/ends
Punishment is a means to the end of deterrence: its effectiveness is an empirical question.
Raises two kinds of moral concerns:
1) general concern with *any* consequentialist philosophy
2) specific concern in connection to punishment:
a) justifies too much/problem of scale: could justify punishing the innocent, for example, say by framing someone. Suggests a general problem w/ this philosophy.
b) Problem of cost/benefit calculation. How much punishment is justified? It depends!
The opposite of Kantian morality: uses people as a means only (i.e. to “greater good”)
If you think of punishment in purely instrumental terms, you quickly come to a point where you do violate a person’s humanity. Manning a very strong example: excessive, *used* as a warning, a deterrent. Not a person, a sign.
Alternatives?
Retributivism
1) we deserve to suffer: a moral judgment
2) The state is justified in securing suffering for wrongdoers
Not a means/end system: it’s based on an intuition, a widely shared premise, that leads to a deduction. [Religion! And behaviorist psychologists?] But why nominate the state as the punisher? Differs from Cons. b/c punishment has to be proportional.
How is it justified? What principle? Incorporates equality--but that’s not its premise.
Notion of “desert” could be valuable in itself: we are ends. [But not to suffer! So this doesn’t get you very far.] Or it could have an instrumental value, which brings back Consequentialism by the back door.
People suspect Retributivism because it resembles primitive notions of revenge.
Student: “What’s morally wrong with vengeance?” M: “Good question!” Suggests that we have a moral qualm with the *joy* factor in revenge [unless we’re Nietzschean…]
[I could imagine a behaviorist trying to give an empirical foundation to the retributivist intuition: we all deserve to suffer (broadly defined): it’s the premise for human learning.]
Even more difficult, though, is the jump to the state as actor. With so many problems, alternatives proposed:
1) Fair Play theory: violating the law gives an unfair advantage. Punishment is a return to equilibrium.
Not consequentialist, not retributivist, but still mysterious: misconceives the nature of a criminal offense. Rape is not “an unfair advantage”: it’s a moral crime.
Consequentialism is an instrumental philosophy: means/ends
Punishment is a means to the end of deterrence: its effectiveness is an empirical question.
Raises two kinds of moral concerns:
1) general concern with *any* consequentialist philosophy
2) specific concern in connection to punishment:
a) justifies too much/problem of scale: could justify punishing the innocent, for example, say by framing someone. Suggests a general problem w/ this philosophy.
b) Problem of cost/benefit calculation. How much punishment is justified? It depends!
The opposite of Kantian morality: uses people as a means only (i.e. to “greater good”)
If you think of punishment in purely instrumental terms, you quickly come to a point where you do violate a person’s humanity. Manning a very strong example: excessive, *used* as a warning, a deterrent. Not a person, a sign.
Alternatives?
Retributivism
1) we deserve to suffer: a moral judgment
2) The state is justified in securing suffering for wrongdoers
Not a means/end system: it’s based on an intuition, a widely shared premise, that leads to a deduction. [Religion! And behaviorist psychologists?] But why nominate the state as the punisher? Differs from Cons. b/c punishment has to be proportional.
How is it justified? What principle? Incorporates equality--but that’s not its premise.
Notion of “desert” could be valuable in itself: we are ends. [But not to suffer! So this doesn’t get you very far.] Or it could have an instrumental value, which brings back Consequentialism by the back door.
People suspect Retributivism because it resembles primitive notions of revenge.
Student: “What’s morally wrong with vengeance?” M: “Good question!” Suggests that we have a moral qualm with the *joy* factor in revenge [unless we’re Nietzschean…]
[I could imagine a behaviorist trying to give an empirical foundation to the retributivist intuition: we all deserve to suffer (broadly defined): it’s the premise for human learning.]
Even more difficult, though, is the jump to the state as actor. With so many problems, alternatives proposed:
1) Fair Play theory: violating the law gives an unfair advantage. Punishment is a return to equilibrium.
Not consequentialist, not retributivist, but still mysterious: misconceives the nature of a criminal offense. Rape is not “an unfair advantage”: it’s a moral crime.
Thursday, August 22, 2013
Introduction
This post is a placeholder: we will add blog entries consisting of brief class notes from the lectures in Phil 135.
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