This paper tries to explain against the backdrop of the history of German criminal theory why and in which way the fault elements are seen differently in Germany and in Anglo-American countries. It shows how Feuerbach’s psychological model of guilt convinced Feuerbach’s German contemporaries in the 19th century that the suppression of the actual will to violate a criminal prohibition must be the reason for punishment. For such deterrence theory, direct intention is the central criterion of imputation. There is no (...) room for extensions like indirect intention. The resulting gap was filled by representatives of the will theory who created dolus eventualis as a criterion of imputation. The paper then concentrates on the gradual change which dolus eventualis has undergone due to the development of a ‘normative’ concept of guilt, i.e. a perception of guilt as a failure to live up to certain expected standards. It is outlined how the normative concept of guilt has facilitated Welzel’s decision to transplant dolus from the guilt level to the level of definitional elements. Transferring dolus to the definitional level led to a further change from a primarily voluntative to a cognitive content of the notion. It became appropriate to view dolus eventualis as acceptance of the prohibited state of affairs. For reasons of clarification the terms dolus eventualis and recklessness are compared in an annex to the paper. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as a (...) concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

On the surface, it seems intuitively plausible that if an agent luckily manages to perform a desired action (e.g., rolling a six with a fair die or winning the lottery), the performance of which is not the result of any relevant skill on her part, we should not say that she performed the action intentionally. This intuition suggests that our concept of intentional action is sensitive to considerations of skill, luck, and causal control. Indeed, some philosophers have claimed that in (...) order for an action to be performed intentionally it must be performed with a relevant amount of skill or control - i.e., an intentional action cannot simply be the result of luck. On this view, skill and control are necessary conditions of our everyday concept of intentional action. In this essay, I discuss empirical evidence that challenges this claim. After briefly setting the stage, I examine Al Mele and Paul Moser's thorough analysis of intentional action - paying particular attention to some of the interesting scenarios they offer in support of their position. Next, I discuss the results of some simple psychological experiments that show that people's judgments concerning whether actions are intentional can often be affected by the moral features of these actions - features that may trump considerations of skill, luck, and control. Finally, I conclude that if this is correct, philosophers who claim that skill and control are necessary conditions of the folk concept of intentional action appear to be mistaken. One can test attempted philosophical analyses of intentional action partly by ascertaining whether what these analyses entail about particular actions is in line with what the majority of non-specialists would say about these actions if there is a widely shared concept of intentional action, such judgments provide evidence about what the concept is, and a philosophical analysis of intentional action that is wholly unconstrained by that concept runs the risk of having nothing more than a philosophical fiction as its subject matter. (Mele, 2001, p. 27). (shrink)

In this paper, I first review some of the recent empirical work on the biasing effect that moral considerations have on folk ascriptions of intentional action. Then, I use Mark Alicke's affective model of blame attribution to explain this biasing effect. Finally, I discuss the relevance of this research - both philosophical and psychological - to the problem of the partiality of jury deliberation. After all, if the immorality of an action does affect folk ascriptions of intentionality, and all serious (...) criminal offenses - e.g., murder and rape - are immoral in addition to being illegal, then a juror's ability to determine the relevant mens rea (i.e., guilty mind) of a defendant in an unbiased way may be seriously undermined. (shrink)

One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy Arpaly to criminal (...) negligence. Although not interested in legal issues herself, Arpaly has a well-developed theory of moral agency that explains moral concern in terms of responsiveness to moral reasons. Introducing her work to the ongoing scholarly debate will be helpful for two reasons. First, while a definition of negligence in terms of moral concern is recognized as one proposed solution to the negligence–blameworthiness problem, authors promoting it have yet to give a systematic account of moral concern and its relation to blame. Borrowing Arpaly's account will help clarify the idea of moral concern so that both proponents and critics of a concern approach to negligence can have a better-defined debate. Second, her theory of blameworthiness is especially suited to defending the blameworthiness of negligent actions, because it does not have recourse to a special quality of choice or self-control that must be active to render conduct blameworthy. To make this second advantage clear, the article argues that reliance on choice or self-control problematizes blameworthiness for negligence. Those who wish to defend blameworthiness for negligent acts should base their work on an account of moral agency that does not rely on either choice or self-control to explain when an action is blameworthy. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

We seem to be responsible for our beliefs in a distinctively epistemic way. We often hold each other to account for the beliefs that we hold. We do this by criticising other believers as ‘gullible’ or ‘biased’, and by trying to persuade others to revise their beliefs. But responsibility for belief looks hard to understand because we seem to lack control over our beliefs. In this paper, I argue that we can make progress in our understanding of responsibility for belief (...) by thinking about it in parallel with another kind of responsibility: legal responsibility for criminal negligence. Specifically, I argue that that a popular account of responsibility for belief, which grounds it in belief’s reasons-responsiveness, faces a problem analogous to one faced by H.L.A. Hart’s influential capacity-based account of culpability. This points towards a more promising account of responsibility of belief, though, if we draw on accounts of negligence that improve on Hart’s. Broadly speaking, the account of negligence that improves on Hart’s account grounds culpability in a concern for others’ interests, whereas my account of epistemic responsibility grounds responsibility for belief in a concern for the truth. (shrink)

After briefly sketching an historical account of criminal law that emphasizes its longstanding reach into social, commercial and personal life outside the core areas of criminal offenses, this paper explores why criminal law theory has never succeeded in limiting the content of criminal codes to offenses that fit the criteria of dominant theories, particularly versions of the harm principle. Early American writers on criminal law endorsed no such limiting principles to criminal law, and early American criminal law consequently was substantively (...) broad. But even with the rise of theories in the mid-nineteenth century that sought to limit criminal law’s reach, codified offenses continued to widely and deeply regulate social life and exceed the limits of those normative arguments. This essay suggests that this practical failure of criminal law theory occurred because it was never adopted by an institutional actor that could limit offense definitions in accord with normative commitments. Legislatures are institutionally unsuited to having their policy actions limited by principled arguments, and courts passed on the opportunity to incorporate a limiting principle for criminal law once they began, in the Lochner era, actively regulating legislative decisions through Constitutional law. The one avenue through which criminal law theory has had some success in affecting criminal codes is through the influence of specialized bodies that influence legislation, especially the American Law Institute advocacy of the Model Penal Code. But the institutional structure of American criminal law policymaking permits an unusually small role for such specialized bodies, and without such an institutional mechanism, criminal law theory is likely to continue to have little effect on actual criminal codes. (shrink)