Criminals or Patients? Towards a Tragic Conception of Moral and Legal Responsibility

Criminal Law and Philosophy 4 (2):233-244 (2010)
There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal responsibility and directed more at empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us.
Keywords Responsibility  Criminal law  Tragedy  Kierkegaard  Imagination  Relations
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DOI 10.1007/s11572-010-9093-6
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John Gardner (2003). The Mark of Responsibility. Oxford Journal of Legal Studies 23 (2):157-171.

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