Abstract
This is a review of the challenging book in which Larry Alexander and Kimberly Ferzan propose sweeping revisions to the structure of substantive criminal law.
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Notes
The book’s title page lists Alexander and Ferzan as authors but also acknowledges “contributions by Stephen Morse.” Purely for concision, and with no intention of disparaging Professor Morse’s contributions, I will refer to the book’s authors simply as “Alexander and Ferzan.”
Numbers in parentheses refer to pages in Alexander et al. (2009).
For example, George Fletcher tells us that he will use the term culpability “to refer to accountability”—yet immediately adds that “there is an important difference between the two concepts.” (2000, p. 459).
Note, however, that Michael Moore, though acknowledging that “culpability” often refers to an actor’s overall moral blameworthiness, uses the term in a narrower sense that, like Alexander and Ferzan’s concept, “focuses on the mental states of the actor at the time of the wrongful act.” (1997, p. 404).
Propositions (C) and (D) will be examined later.
Summarizing their discussion, Alexander and Ferzan state that “[r]esults do not matter for blameworthiness or punishment. The law seeks to influence the reasons for which a person acts, but it cannot influence the results of these actions” (p. 195).
They find fault with allowing results to influence culpability because it means “detaching moral desert from what is fully within the actor’s control” (p. 184).
See Zimmerman (2002, pp. 553, 563).
Observe that the statements just quoted speak of volitions as the theoretically proper basis of liability, whereas their earlier chapter on the irrelevance of results had labeled choice as the “necessary (and sufficient) desert basis” (p. 172). Because “volitions,” if they exist at all, are elusive entities—so much so that “it may be too much to ask that an ordinary citizen apply the concept of a volition” (p. 233)—making volitions the basis of liability will likely seem more difficult than basing liability on choices. Moreover, volitions are supposed to issue in bodily movements much more directly, immediately, and frequently than choices or decisions do, so that punishing for overt acts rather than the volitions that produce them will preclude prosecution of only “a tiny group of culpable offenders” (p. 233).
Note that if choice or decision, rather than volition, were the basis of criminal liability, there might be cases where a conviction could be obtained even though the criminal had yet to put his choice into operation. Think, for example, of a would-be criminal who makes his decision to kill known to friends. Or suppose an appalled daughter gives the police her father’s diary, containing incriminating material like that in the diary of Sirhan Sirhan, the assassin of Robert Kennedy. (In his diary, Sirhan had written: “My determination to eliminate RFK is becoming more and more of an unshakable obsession. RFK must die. RFK must be killed. Robert F. Kennedy must be assassinated… Robert F. Kennedy must be assassinated before 5 June 68”).
Honore (1999, p. 29).
The point was made long ago by H. L. A. Hart:
Only a theory that mental operations like attending to, or thinking about, or examining a situation are somehow ‘either there or not there,’ and so utterly outside our control, can lead to the theory that we are never responsible if we fail to think or remember. And this theory of the uncontrollable character of mental operations would, of course, be fatal to responsibility for even the most cold-blooded, deliberate action … [T]he cold-blooded murderer might say ‘I just decided to kill; I couldn’t help deciding.’ (1968, p. 151).
“Negligence consists in taking a risk of harm with such a degree of probability as to be socially unacceptable.” (Williams 1983, p. 89).
This is the doctrine sometimes colorfully labeled “depraved heart murder.”
Alexander and Ferzan contrast spelunkers who purposely kill one of their party so that the others may survive with “those who impose high risks of death on others for the mere thrill of it but who do not have others’ death as their conscious purpose” (p. 40). But this is obviously not a case where recklessness versus purpose is the only difference between the wrongdoers.
The authors assert: “we have only one crime—manifesting insufficient concern for others’ legally protected interests” (p. 246).
The authors themselves should endorse this sentiment, in light of their own willingness to count “the rule of law” as a protected interest which disobedience “undermines,” (pp. 312–313).
In a situation where the rule arguably shouldn’t apply, but following it does not create more harm than ignoring it, it is hard to see why we should nevertheless permit disobedience—at the risk of “undermining the rule of law.”
And note that “awareness” here includes risks of whose precise nature Harry is aware only “preconsciously,” provided that he is consciously aware that his behavior creates risks of some sort (pp. 51–58).
Here is what the authors say about such a case: “Our analysis seems to commit us to the claim that because the purpose of Frankie’s trip is illicit, all risks she adverts to are themselves illicit. This is exactly right.” (p. 50).
For details, see Forsyth (1971).
That, at least, is their official position. Yet they contend that an actor “who lights the fuse in order to burn down another’s property or blow up an inhabited building is culpable at the moment he lights it because, even if he changes his mind, he may not be able to snuff out the fuse” – he might “black out, or be prevented by another,” for example (p. 199 n. 2). Since they suggest no reason to suppose the actor is aware of such possibilities, they appear to be conceding that he might be culpable despite believing he hasn’t yet unleashed a risk beyond his ability to control.
Aristotle, for example, believed that “arguments should be based upon and appeal to endoxa – opinions that are held or have been held, either by most people or by notable people worth attending to.” (Ackrill 1981, p. 111).
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Dolinko, D. Review of “Crime and Culpability: A Theory of Criminal Law”. Criminal Law, Philosophy 6, 93–102 (2012). https://doi.org/10.1007/s11572-011-9133-x
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DOI: https://doi.org/10.1007/s11572-011-9133-x