Professional Documents
Culture Documents
DOI:10.1093/acprof:oso/9780199559152.003.0009
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As the cartoon illustrates, responsibility has several usages in idiomatic English. One can
have certain responsibilities, in the sense that one has certain obligations; one can be
responsible in the sense that one generally takes care of his obligations; one can be a
responsible adult, in the sense that one has the capacities (rationality and autonomy) to be
held responsible for failure in doing what one is obligated to do.11 The sense pertinent
here is none of these, however. The relevant sense is that of being responsible for some
harm or some other unhappy state of affairs.
Even restricted to responsibility for some harm, there are some further distinctions to be
drawn. We might say, the storm was responsible for the loss of life, and we might say,
the ship owner was held responsible in tort damages for the loss of life.12 Putting aside
primitive animism, storms are not morally responsible for anything; all that is meant here
is that the storm was a cause (or the cause) of the loss of life. Likewise, the ship owner's
responsibility is better phrased as legal liability. A liability is (in Hohfeld's well-known logic)
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6 CONCLUSION
The law of torts and of crimes, together with the morality of blaming behind both, thus
makes a lot of assumptions about what is true in psychology. They assume that persons
act because of representational states that really exist and that exhibit Intentionality, that
those states are of three distinct kinds, that those kinds are related to one another in the
distinctive pattern of practical rationality charted earlier, that intentions are a part of that
schema, that there is a difference in kind between intentions (or intentions cum desires)
and beliefs, that intentions can be causally efficacious, that some form of privileged access
exists with respect to an intention by its holder, that there is a fact of the matter about
what someone intends on a particular occasion, and that this can be formulated with
sufficient precision to allow the two comparisons responsibility assessments require in
order to grade culpability by intentions. A tall order, to be sure, but a lot we care about
besides using intentions to mark most serious culpability goes by the board if
psychology/neuroscience cannot deliver on such an order.
Notes:
(1) Oliver Wendell Holmes, Jr, The Common Law (Boston: Little, Brown, 1881), 7.
(2) Morissette v United States, 342 US 246 (1952).
(3) I explore the doctrine of double effect in MS Moore, Patrolling the Borders of
Consequentialist Justifications: The Scope of Agent-Relative Restrictions (2008) 27 Law
and Philosophy 3596, reprinted as ch 3 of MS Moore, Causation and Responsibility
(Oxford: Oxford University Press, 2009); see also L Alexander and MS Moore,
Deontological Ethics (2007) Stanford Encyclopedia of Philosophy,
http://plato.stanford.edu.
(4) I explore this thesis at length in MS Moore, Act and Crime: The Philosophy of Action
and its Implications for Criminal Law (Oxford: Clarendon, 1993), ch 6.
(5) On the general idea of a normative power, see J Raz, Practical Reason (Oxford:
Oxford University Press, 1976).
(6) See C Fried, Contract as Promise (Cambridge, MA: Harvard University Press, 1982).
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(75) See generally Dressler, Understanding Criminal Law, 1412. The common law holds
the offender to the greater degree of the crime he in fact did; the Model Penal Code (s
2.04(2)) holds the offender to the lesser degree of the crime he thought he was doing.
(76) See generally Dressler, Understanding Criminal Law, 47989.
(77) Director of Public Prosecutions v Smith [19603] All ER 161.
(78) The assault/battery interchange is most forthrightly acknowledged by the
Restatement of Torts (Second), 13, 18, 21.
(79) State v Hatley, 72 NM 377, 384 P. 2d 252 (1963).
(80) I ignore the utilitarian rationalizations sometimes produced in defence of these
doctrines.
(81) United States v International Minerals and Chemical Corp, 402 US 558, 563 (1971).
(82) The Model Penal Code sees with admirable clarity this fact: the doctrine that
ignorance of the law does not excuse is not really about excuses at all; it is about what
mental states are required for guilt. The Code also sees that for guilt the accused need
hold the correct interpretation of the laws no more than he need have knowledge of such
laws existence. Model Penal Code, 2.02(7).
(83) People v Marrero, 69 NY 2d 382, 507 NE 3d 1068 (1987).
(84) Larry Alexander has a go at disentangling some of these issues in his Inculpatory
and Exclupatory Mistakes and the Fact/Law Distinction (1993) 12 Law and Philosophy
3370.
(85) For the neuroscientific challenges to the folk psychology, see S Morse, Determinism
and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience
(2008) 9 Minnesota Journal of Law, Science, and Technology 135. For the challenges
from within philosophy, see J Greenwood (ed), The Future of Folk Psychology
(Cambridge: Cambridge University Press, 1991).
(86) J Fodor, The Language of Thought (Cambridge, MA: MIT Press, 1975); Fodor,
Psychosemantics: The Problem of Meaning in the Philosophy of Mind (Cambridge, MA:
MIT Press, 1987).
(87) See the citations in Moore, Law and Psychiatry, 25265.
(88) See generally W Prosser, Transferred Intent (1967) 45 Texas Law Review 65062.
(89) See eg Dressler, Understanding Criminal Law, 109.
(90) The facts of Vosburg v Putney, 78 Wis 84, 47 NW 99 (1890); 80 Wis 523, 50 NW 403
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