Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates.

Outcome and Other Luck

This chapter argues that the consequence elements of any crime form a constitutive part of the criminal wrong, in virtue of which criminal culpability is sensitive to outcome luck. Outcomes change what one is culpable for, and they rightly affect what one is convicted of. Yet it does not follow that they alter the degree of one’s culpability, or the quantum of punishment that one deserves. The dependence of outcomes on luck is compatible with moral responsibility, and indeed culpability, for such outcomes. However, because outcome luck occurs after the defendant behaves as she does, it cannot change the manner in which that behaviour reflects a moral vice on the defendant’s part. The chapter also considers challenges posed by other forms of luck. Characteristically, both the criminal law and ordinary blaming judgements accommodate circumstantial luck by means of justifications and excuses; not by irresponsibility defences. In so doing, they disavow the thought that circumstantial luck, too, can undermine moral responsibility.

Forensic Sleep Medicine

Patients with sleep disorders can exhibit behavior that includes violent acts. The behavior may occur during various sleep stages, ranges in complexity, and requires an analysis of consciousness. When the behavior harms another person and criminal charges follow, expert testimony will be required to explain the physiology of the disorder and impairments in consciousness that determine criminal culpability, that is, whether there was conscious intent behind the behavior. In this chapter, sleep-related conditions associated with violent behavior are discussed, along with guidelines for presenting scientific testimony in court. These disorders include rapid eye movement (REM) behavior disorder, somnambulism and other non-REM partial awakenings, and hypersomnolence. Feigned symptoms and malingering must be ruled out, and the clinical parameters for them are discussed. While the physiology of sleep disorders has widely been known, admissibility in court is not automatic. Standards for acceptable expert testimony are discussed.

Adaptive Transformations: Nineteenth-Century Stage Adaptations of Nineteenth-Century Novels

This study analyses nineteenth-century stage adaptations of Victorian novels. It argues that doing so, provides an important insight into the way that nineteenth-century society engaged with and responded to proto-feminism. A selection of nineteenth-century stage adaptations of three novels, which were both popular at the time and have subsequently become canonical, are analysed. The thesis focuses on how dramatists responded to the germinal proto-feminist elements in the novel when they transferred the plot of the original source to the stage. In Chapter One, the issue of female agency is looked at in the nineteenth century stage adaptations of Jane Eyre. Chapter Two focuses on the figure of the ‘fallen woman’ in the shape of Isabel Vane, Mrs Henry Wood’s central figure in East Lynne. Finally, in Chapter Three the complex issue of madness, criminal culpability and femininity is examined in the stage adaptations of Mary Braddon’s Lady Audley’s Secret. Despite the attention devoted to the novels by feminist critics, the study of these popular adaptations has received comparatively little attention. One of the plays examined in this thesis has never been examined at an academic level before (The Mystery of Audley Court by John Brougham 1866). Building on the pioneering work of Patsy Stoneman, this thesis contributes to the growing interest in popular plays. The argument of this thesis is that by studying popular adaptations it is possible from both a New Historicist and a proto-feminist perspective to identify how nineteenth-century society engaged with and responded to proto-feminism. The key findings of this thesis are to do with the amount of license that the dramatists gave themselves as they went about adapting the original source to the stage, for example, the characteristics of the main characters are altered, characters are omitted and new characters are created and inserted into the plot, themes are removed or highlighted and it is the argument of this thesis that those changes were made due to contemporaneous events.