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Distinctive duress

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Abstract

Duress is a defense in both law and morality. The bank teller who provides an armed robber with the bank vault combination, the innocent suspect who fabricates a story after hours of interrogation, the Good Samaritan who breaks into a private cabin in the woods to save a stranded hiker, and the father who drives at high speed to rush his injured child to the hospital—in deciding how to respond to agents like these, we should take into account that they have acted under duress. In this paper, I offer a new duress defense, which I call “distinctive duress.” The distinctive-duress defense is neither ordinary justification nor ordinary excuse. Rather, it is a defense available to agents who act wrongly because they are appropriately insensitive to certain reasons. In the distinctive-duress cases, an agent’s normative sensitivities are rightly directed elsewhere, leading them awry.

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Notes

  1. For more on the nature and metaphysics of the capacities at issue, see the compatibilist, reasons-responsiveness literature, especially Fischer and Ravizza (1998), Vargas (2013), and Wallace (1994).

  2. For the most part, reasons-responsiveness theorists have not taken up the question of the patterns in reasons-responsiveness we might find in agents’ moral psychologies. The notable exception is John Martin Fischer and Mark Ravizza, who argue that an agent’s reasons-receptivity must display an “understandable” pattern of perception of reasons (1998, p. 75). Thus, Fischer and Ravizza leave it open for the agent to be more perceptive of some reasons than others (within the limits of understandability). However, Fischer and Ravizza’s understandability-pattern requirement is better understood as an evidentiary condition on imputing reasons-receptivity than a metaphysical condition on possessing reasons-receptivity, and so, even for them, the question of patterns in reasons-responsiveness is not directly at issue.

  3. Here, I mean to apply the armchair claim that finite beings’ powers are finite to the moral psychology claim that volitional power is one sort of agential power possessed by finite beings. I do not mean to rely upon any particular contemporary empirical psychological results, e.g., the literature on willpower as a depletable resource.

  4. For two recent arguments that a good friend’s view of things is colored by her friendship, see Keller (2004) and Stroud (2006).

  5. That these roles are marked by dispositions that in part come before moral deliberation is one way to make good Bernard Williams’s famous “one thought too many” objection in his (1981).

  6. For a thorough discussion of these agential roles for the emotions, see Tappolet (2016).

  7. A classic text here is Tversky and Kahneman (1974).

  8. What is central to my broader argument about duress is the proposition that good agency will, in some predictable pattern of cases, lead agents to make normative mistakes. Contoured normative sensitivity is but one of several plausible ways to make good that proposition. For example, Gideon Rosen (2014) offers a similar account of duress stemming from the connection between morally acceptable agency and making normative mistakes. Rosen claims that the level of moral commitment we require of each other (basic moral decency) is less than perfect moral commitment (full moral decency). Because we do not expect each other to be perfectly committed to morality, an agent might have an acceptable moral commitment and yet do wrong. I claim that it is a good-making feature of good agency that leads to distinctive-duress cases; Rosen claims only that it is a to-be-tolerated feature of good-enough agency that leads to duress cases.

  9. From conversation, some think that agent-relative reasons license Abra’s behavior. I have two responses to this thought. First, notice that there are many other families on the queue. Even if Abra has agent-relative reasons heightening the import of her children’s interests, those heightened interests can still be outweighed, and this is plausibly such a case. (I urge this point later in considering whether Abra is entitled to a justification defense.) Second, because I proceeded from a model of good normative psychology, rather than by casuistry, those who see Abra’s case as one of justified, agent-relative behavior can construct their own examples. As I explained, exactly which cases will be cases in the shadows will be controversial; that there will be cases in the shadows should not be.

  10. I urge those readers who do not my share my intuition about this case to recall what I have about Abra’s case—that the existence of cases in the shadows should not be controversial even if the classification of particular cases is.

  11. For examples of philosophers and lawyers discussing duress as instantiating one, the other, or both of these ordinary defenses, see Baker (1974, 1985), Brink and Nelkin (2013), Dressler (1999, 2009), Elliott (1991), Rich (2019), and Uniacke (1989).

  12. Even supposing it to be true that no new theoretical machinery is needed to account for duress, there is still good reason to recognize a duress defense. Our ordinarily deployed legal and moral rules are general, and duress can help us pick out an important class of exceptions to those rules. For instance, if our legal rules take simple forms like “it is a crime to intentionally kill another,” then duress can help us pick out important exceptions to those rules without unduly complicating the primary statement of the rules.

  13. For a rich discussion about the limits and proper understanding of self-defense, see Thomson (1991) and Alexander (1993).

  14. The analysis of Abra’s case that follows apply mutatis mutandis to Absalom’s case.

  15. For an argument that duress should be thought of as akin to agent-relative justification, see Alexander and Ferzan (2009).

  16. As a referee notes, this is surely how Abra should reason. For her to reference her role as a mother in her own reasoning would be one thought too many.

  17. Brink and Nelkin (2013) offer a clear statement of this two-component view of moral responsibility in their account of the fair opportunity to avoid wrongdoing. Although much remains to be said about what counts as sufficient normative capacities and sufficient opportunities, the fair-opportunity view is an attractive view of moral responsibility.

  18. The capacities-and-opportunities account of excuse is common in the moral responsibility literature and in the criminal law literature, as is explained by Brink and Nelkin (2013). However, there are rich alternatives, especially Duff (2007) and Gardner (2007).

  19. R. Jay Wallace’s account of moral responsibility has this reasonable expectation at its core. For Wallace, an agent can reasonably be expected to respond to the normative reasons so long as the agent has the requisite capacities and the requisite opportunity to act on those capacities. In the cases in the shadows, those capacities and opportunities are not sufficient for the reasonable expectation; we might then choose reasonable expectation as the guiding notion of excuse. I thank a referee for pushing the force of this reasonable-expectation account of excuse.

  20. For forceful presentations of this worry about condescension and insult, see Duff (2015) and Gardner (2007, especially “The Gist of Excuses”).

  21. I am thinking here of the attributability sense of responsibility picked out by Watson (1996).

  22. For some philosophers, an agent is entitled to an excuse when his behavior, though wrongdoing, does not manifest ill will. For an example of an account of duress given that understanding of excuse, see Richards (1987). Accounts of culpability dependent upon the manifestation of ill will struggle to appropriately handle cases of negligence and cases of out-of-character wrongdoing. For skepticism about the ill-will condition especially as it bears on duress, see Baron (2014) and Gardner (2007, p. 577). Here, I focus on reasonable expectations and fair opportunities. However, those who favor a manifestation account could either expand the number of co-occurring properties in excuse or replace the reasonable-expectation property with the manifestation property, the rest of the argument proceeding accordingly, mutatis mutandis.

  23. For similar arguments seeing duress as grounded in how good agency and acting in accord with moral reasons can come apart, see Carr (1991), Duff (2015), Gardner (2009), and Gorr (2000). For each of these philosophers, as for me, duress cases involve non-justified action that can be explained by reference to non-culpable features of the actor’s agency. For example, for Antony Duff and John Gardner, duress is a defense where, while the action is not justified, it is the product of a non-pathological, reasonable emotion. My account is distinct from these other accounts in the role played by contoured normative capacities. The contoured capacities provide a distinctive explanation for why the agent would not be at fault, one that connects quasi-justification and quasi-excuse in a principled manner.

  24. The Model Penal Code is a text originally prepared in 1962 by the American Law Institute and revised several times since then. Although the Model Penal Code is not binding law, it is widely regarded both as capturing important elements of American criminal law and as providing a productive guide for modernizing aspects of American criminal law.

  25. The Model Penal Code’s duress provision is plausibly consistent with seeing agents under duress as lacking a fair opportunity to exercise their competence. Insofar as Section 2.09(1) is read in this fashion, it should be revised to accommodate the distinctive-duress defense.

  26. For similar skepticism, see Dressler (1999, 2009) as well as cases like United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984). Notice that both Abra and Absalom are reacting to pressures brought about by human agency.

  27. For even more strident challenges to the divide between justification and excuse, see Duff (2009, ch. 11) and Rivera-López (2006).

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Acknowledgements

This paper was sparked by a rich discussion with Sam Rickless about the relationship between responsibility for wrongdoing and blameworthiness. Thanks also to audiences at the University of California, San Diego, at the Annual Conference of the Long Island Philosophical Society, at the Annual Congress of the Canadian Philosophical Association, and at the Rocky Mountain Ethics Congress for valuable feedback. Thanks in addition to Amy Berg, Brian Berkey, Cameron Boult, David Brink, Julianne Chung, Stephen Galoob, Robert Gruber, Carlos Pereira Di Salvo, Shawn Wang, Stephen White, and an anonymous referee for helpful discussions about these arguments.

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Agule, C.K. Distinctive duress. Philos Stud 177, 1007–1026 (2020). https://doi.org/10.1007/s11098-018-01227-3

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