Moral and Ascriptive Responsibilities

This chapter sets out in more detail two concepts of responsibility, “moral” and “ascriptive”, as they are used in this book. Moral responsibility is concerned with a defendant’s eligibility for moral praise or blame in respect of her behaviour. Ascriptive responsibility, by contrast is concerned with the conditions of accountability. The latter is audience-relative: the former is not. Within the criminal law, denials of moral responsibility are accommodated through defences such as infancy and insanity, and by the requirement of voluntariness. Denials of ascription, by contrast, turn primarily upon doctrines of causation, omissions, and complicity. The chapter concludes with a critique of the so-called voluntary act requirement.

On the Moral Distinction between Intention and Advertence

This chapter discusses the moral implications of the distinction between intention and advertence. Excepting the special category of oblique intention, the criminal law broadly embraces the distinction outlined in the previous chapter, between intended actions and those merely foreseen. That embrace calls for normative defence. One way of defending it is to appeal to what can be called the standard view, that intended wrongdoing is, ceteris paribus, inherently more culpable than advertently risked wrongdoing. However, there are reasons to doubt the standard view. This chapter offers a different, albeit compatible, explanation. On the account presented here, the most systematic difference between intended and foreseen wrongdoing is not measured in degrees of culpability. Rather, it is worked out in terms of what actions may legitimately be invoked to justify pro tanto wrongdoing. In general, foreseen actions do not lend any favourable weight to the justification of intended ones, whereas intended actions can lend favourable weight to the justification of foreseen ones.

Complicity

This chapter addresses complicity liability. Complicity doctrine is notoriously difficult, both doctrinally and conceptually, in part because its underlying principles are themselves in tension. The pull of judgements about culpability must be reconciled with the demands of criminalization, and with the need protect the public. Frequently, the approach of the courts has been to focus on the defendant’s culpability. The better approach, it is argued, is to distinguish matters of culpability from those of ascriptive responsibility, and to focus also on the latter. Once this is done, it becomes easier to see the centrality of mens rea in ascribing responsibility for another’s acts. Quite apart from helping to show culpability, mens rea requirements can also mediate the constraints of criminalization, helping to balance the ex ante liberties of the accessory against the rights and interests of others; and ensuring those who do otherwise innocent actions have sufficient notice that their conduct is potentially criminal. The chapter closes by distinguishing between two major categories of participation: aiding and abetting, and joint criminal enterprise.

Moral Responsibility and Voluntariness

This chapter explores some of the ways in which moral responsibility for events can be negated through a lack of voluntariness. It looks at how such negations are best accommodated within the criminal law. The chapter begins by identifying two ways of thinking about voluntariness. Some writers see voluntariness as a counterpart to involuntariness, envisaging behaviour ‘done in the presence of open alternatives’. Others explain voluntary behaviour in terms of ‘volitional’ behaviour that is intentional under some description; behaviour, one might say, done willingly. The chapter goes on to consider the relationship between voluntariness and the varieties of actus reus elements, including omissions, situational liability, and possession.

Distinguishing Defences (from Offences, and from Each Other)

This chapter distinguishes substantive defences from offences, and distinguishes the major types of defences from each other. The substantive defences are united by the culpability principle. They all play a role in preventing convictions of blameless defendants who satisfy the actus reus and mens rea of a crime. Traditionally, theorists have divided the substantive defences into two categories: justifications and excuses. Excuses directly engage findings of culpability whereas justifications are primarily concerned with wrongdoing. However, there is another class of defences that deny culpability indirectly—those that deny moral responsibility. These can usefully be called ‘irresponsibility defences’ rather than excuses. Furthermore, for practical purposes, excuses can be subdivided into three subcategories: rationale-based excuses; hybrid and partial irresponsibility defences; and defensive mistakes. The chapter focuses mainly on the difference between rationale-based excuses and justifications, before turning to discuss the general distinction between defences and offences.

Unpacking Justifications

This chapter examines justifications. The common law knows a range of rationale-based defences according to which otherwise pro tanto wrongs may become permitted. By articulating justificatory defences like self-defence and necessity, the legal system adds the interstitial nuance that its prohibitions require. Unlike most other justifications, however, lesser-evils necessity is unconfined by reference to specific contexts, such as protecting oneself from attack or executing an arrest. Its field of application is amorphous and open-ended. The chapter then considers why necessity differs from those other, ‘primary’, justifications. It develops two theses: wrong-dependence and justification-dependence. In wrong-dependence, whether a person’s offence is justified depends on the type of (pro tanto) wrong that offence is. In justification-dependence, whether a person’s offence is wrong (simpliciter) depends on the type of justification that the person has. The chapter argues that cases of lesser-evils necessity are special, in that they are cases of a justified wrong. By contrast, primary justifications such as self-defence do not involve a wrong but only a pro tanto one. The importance of urgency requirements in rationale-based defences is also discussed.

Unpacking Excuses

This chapter focuses on excuses, which can be usefully subdivided into three categories: rationale-based excuses; hybrid and partial irresponsibility defences; and defensive mistakes. What unites these categories is that each involves some form of excusatory explanation. Broadly speaking, the domain of excusatory explanations ranges over all unjustified acts for which blame is defrayed rather than exempted. Whereas the rationale-based excuses were discussed in chapter 17, it is the second and third categories that are explored here. The chapter sketches various ways in which certain excuses can straddle the line between irresponsibility and rationale-based defences, before turning to discuss defensive mistakes. Regarding the latter, the chapter argues that appeals to the exculpatory power of such mistakes are distinct from appeals to the relevant substantive defence: mistaken self-defence, for example, is a claim of mistake and not a claim of self-defence. Neither are such mistakes analogous to mistakes that underpin a denial of the defendant’s mens rea. Defensive mistakes are a morally distinctive category, and the criminal law should require such mistakes to be reasonable if they are to exculpate.

Crime, Responsibility, Culpability, and Wrongdoing

This chapter provides a theoretical overview of criminal law, claiming that it has multiple functions. Among other things, the criminal law operates to prevent certain kinds of wrongs, and to punish them when they occur. Those functions are compatible; but they are often thought to be in tension. Whether preventive, interrogative, or punitive, all parts of the criminal justice system need justification. The chapter then briefly introduces at five foundational principles for criminal law: culpability, legitimate enactment, moral responsibility, wrongdoing, and ascriptive responsibility. Culpability is served by moral responsibility, and it is entwined with wrongdoing: but the latter principles, and the doctrines they govern, are independently significant. The principle of ascriptive responsibility, on the other hand, is related more closely to wrongdoing and legitimate enactment than to culpability per se. Its primary function is to moderate the state’s generic prohibition by identifying those defendants who fall within its scope. As such, it is primarily a criminalization principle.

Causation

This chapter focuses on causation. Causation doctrines govern the connection between a person’s behaviour and the consequence elements, if any, of an offence. They articulate the paradigm route by which responsibility for those consequences can be ascribed to the person. The chapter provides an account of causation in the criminal law that points toward some natural-world property that it (in part) rests upon, and which shows how that property is capable of bearing the moral freight that causation doctrines must carry. The account seeks to reconcile the tension between pre- and post-legal notions of causation, finding a place for the law’s morally sensitive causation doctrines. In so doing, it helps to explain what criminal and tortious causation must have in common, and where space exists for their causal doctrines to diverge. Finally, the chapter sets out three major threads of causation: direct causation, indirect causation, and causation via omissions or other non-interventions.

(Non-volitional) Action

This chapter considers the action-event distinction. In particular, it pursues another way of thinking about the relationship between volitional action and non-volitional ‘action’. Rather than analysing what divides them, it looks at what they have in common: what separates the both of them from mere events. Doing so has the virtue of focusing attention more directly on what—besides non-involuntariness—underpins moral responsibility for a piece of behaviour and its consequences. Plausibly, one shared feature is that the agent’s behaviour involves the exercise of certain capacities that sub-serve intentional action: capacities that are normally exercised when one acts intentionally. It is the exercise of those capacities that changes behaviour from event to action, even when the behaviour is not volitional. The chapter also discusses causal accounts of agency.