In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may (...) be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law. (shrink)

Moral ignorance is always blameworthy, but “failing to realize” that P when you have sufficient evidence for P is sometimes exculpatory, according to Elizabeth Harman (2017). What explains this alleged puzzle? Harman (2017) leaves this an open question. In this article, a solution is offered.

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...) years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in (...) my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” ; “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration. (shrink)

Suppose you are at the gym trying to see some naked beauties by peeping through a hole in the wall. A policeman happens by, he asks you what you are doing, and you honestly tell him. He then arrests you for voyeurism. Are you guilty? We don’t know yet because there is one more fact to be considered: while you honestly thought that a locker room was on the other side of the wall, it was actually a squash court. Are (...) you guilty now? -/- Probably. You might argue that your scopophiliac ambition was impossible to satisfy given that you were peeping into a squash court, not a locker room. But this “Impossibility Defense” would fail because most jurisdictions follow the very influential Model Penal Code (MPC), which says that what is important about attempt is not the likelihood of success but rather what was going on in your head. You tried to peer into a locker room with the intention of seeing some nudity; that is enough for culpability. The fact that you were mistaken about the location does not exonerate you. -/- But now suppose that the particular jurisdiction you are in does not criminalize voyeurism. While most people think that voyeurism is just plain wrong, if not disgusting, the legislature just never got around to drafting a statute against it. Are you guilty now? The answer is no. But you might just be out of luck and convicted anyway. -/- The reason for this strange conclusion is that most jurisdictions have followed the Model Penal Code in yet another respect: along with the MPC’s “subjectivist” emphasis on what is in your head, they have followed the MPC’s lead in abolishing the Impossibility Defense entirely. As a result, people who believe that they are breaking laws when they really are not may still be subject to arrest, prosecution, and conviction respectively by police, prosecutors, and judges/juries merely if all three parties regard your conduct — especially your trying to violate a law that you mistakenly believed in — as morally reprehensible. The best, if not only, defense against this charge is the Impossibility Defense, but — again — most jurisdictions have decided to make this defense unavailable to defendants. -/- Depriving eligible defendants of the Impossibility Defense is unjust. It violates one of the most basic principles of criminal justice: the legality principle. The legality principle says that there cannot be just punishment without a crime, and there should not be a crime without an explicit law designating it as such. So you cannot be charged with, and convicted of, attempted voyeurism if voyeurism, reprehensible as it may be, was not explicitly prohibited at the time that you made the attempt. -/- If we believe in the legality principle, then we must restore the Impossibility Defense. Without the latter, too many defendants are being — and will continue to be — punished for attempts to perform acts that were not themselves illegal but which various parties in the criminal justice system (except the legislature) thought should be illegal based on their extralegal, moral prejudices. -/- In addition to the MPC, the principal obstacle to resurrecting the Impossibility Defense is a good deal of conceptual confusion that permeates relevant cases and scholarship. Too many courts and academics have conflated “factual impossibility” with “legal impossibility” and have fallaciously inferred “hybrid impossibility” from “hybrid mistakes” (that is, legal mistakes that derive from factual mistakes). One of the principal goals of this Article, then, is to clear up all of this confusion. I will explicate in the simplest possible terms (a) the difference between factual impossibility and legal impossibility, (b) why only legal impossibility qualifies as exculpatory, and (c) why hybrid impossibility simply does not exist. (shrink)

Moral responsibility theorists and legal theorists both worry about what negligence is, and how it might be a ground of blameworthiness. In this paper I argue that negligence suitably understood, can be an appropriate grounds for mens rea in rape cases. I am interested in cases where someone continues with sex in the mistaken belief that the other person consents. Such a mistaken belief is often unreasonable: a wilfully blind agent, one who deliberately ignores evidence that there is no consent, (...) is clearly not exculpated by his ignorance. However, there may be circumstances in which a man’s mistaken belief in consent is reasonable in the circumstances, then he is not culpable. Thus it is important to be clear about what we mean by a reasonable mistake. Many critics (e.g. Duff, Baron and others) have argued that it is not possible to make a reasonable mistake about consent, that any such mistake must involve culpable carelessness. Consent is so important that we should always double check. Not to do so is reckless, and in that case there is clearly culpability. In this paper I argue that it is possible to make a mistake that is reasonable, at least in one sense. Someone in the grip of sexist ideology might not understand how important consent is, and not through carelessness, but through sexist ideology that they have non-culpably and non-voluntarily absorbed. In that case it is not obvious that the man is culpable. I go on to argue that so far as the law is concerned, there is good reason to hold that even those who have ‘reasonable’ beliefs culpable. Having a reasonable belief in consent may be, but is not always exculpatory. We usually think a reasonable mistake does not count as negligence because a reasonable mistake is not failing to know something that you should have known. I argue that we should understand negligence—not knowing something you should have known—in a moralized sense, so that people who are ignorant through being ideologically blinded can be held to have the mens rea requisite for rape conviction. -/- . (shrink)

It is a recurring idea in the history of political philosophy that concepts and doctrines of private law are illuminative of public law and political philosophy. Central among these are contract and the trust. In this paper, I consider the prospects of a third: estoppel. The public law context in which estoppel is most commonly invoked is criminal law, and there especially in the service of understanding the defenses of entrapment and what I call officially induced mistake of law. My (...) question is how well it serves this role – how well the structure of the self-disentitlement that provides the rationales for the defences of entrapment and OIML on the non-exculpatory approach to each is articulated on the model of state estoppel, as I call it. I will argue that it fares well, and so that estoppel merits inclusion on the list of concepts and doctrines of private law that are illuminative of public law and political philosophy. In conclusion I will ask what the moral-expressive content of its deployment in that context is, and argue that, while the doctrines of contract and trust work as means to articulate claims about the basis and limit of political authority, the claim that some cases of state self-disentitlement can be modelled on estoppel represents a commitment to some core principles of the rule of law. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

Longtermists have recently argued that it is overwhelmingly important to do what we can to mitigate existential risks to humanity. I consider three mistakes that are often made in calculating the value of existential risk mitigation. I show how correcting these mistakes pushes the value of existential risk mitigation substantially below leading estimates, potentially low enough to threaten the normative case for existential risk mitigation. I use this discussion to draw four positive lessons for the study of existential (...) risk. -/- . (shrink)

Category mistakes are sentences such as 'Green ideas sleep furiously' or 'Saturday is in bed'. They strike us as highly infelicitous but it is hard to explain precisely why this is so. Ofra Magidor explores four approaches to category mistakes in philosophy of language and linguistics, and develops and defends an original, presuppositional account.

A critique of Elizabeth Anscombe's distinction between mistake in performance and mistake of judgement, as it appears in her monograph Intention.

This chapter focuses on one of the common fallacies in Western philosophy, 'legalistic mistake'. The use of “legal‐like” terms abounds outside the legal domain. But sometimes the users of these terms commit the fallacy Joel Feinberg called the legalistic mistake. On widening the use of such legal‐like terms, we must be cautious, for we might find ourselves guilty of making inferential mistakes or even proffering pure nonsense. The error, according to Feinberg, is committed by “one who, in stating a (...) moral question using a legal‐like term, uncritically imports the precision of that term in its strict legal sense, while excluding appeal to the kinds of criteria which alone can decide its use”. In “On Being 'Morally Speaking a Murderer’” Feinberg introduced the idea that, sometimes, using legal notions outside legal contexts may lead to a peculiar kind of fallacy he called the legalistic mistake. (shrink)

Category mistakes are sentences such as ‘Colourless green ideas sleep furiously’ or ‘The theory of relativity is eating breakfast’. Such sentences are highly anomalous, and this has led a large number of linguists and philosophers to conclude that they are meaningless (call this ‘the meaninglessness view’). In this paper I argue that the meaninglessness view is incorrect and category mistakes are meaningful. I provide four arguments against the meaninglessness view: in Sect. 2, an argument concerning compositionality with respect (...) to category mistakes; in Sect. 3 an argument concerning synonymy facts of category mistakes; in Sect. 4 concerning embeddings of category mistakes in propositional attitude ascriptions; and in Sect. 5 concerning the uses of category mistakes in metaphors. Having presented these arguments, in Sect. 6 I briefly discuss some of the positive motivations for accepting the meaninglessness view and argue that they are unconvincing. I conclude that the meaninglessness view ought to be rejected. (shrink)

Ever since the publication of Kripke’s Wittgenstein on Rules and Private Language, there’s been a raging debate in philosophy of language over whether meaning and thought are, in some sense, normative. Most participants in the normativity wars seem to agree that some uses of meaningful expressions are semantically correct while disagreeing over whether this entails anything normative. But what is it to say that a use of an expression is semantically correct? On the so-called orthodox construal, it is to say (...) that it doesn’t result in a factual mistake, that is, in saying or thinking something false. On an alternative construal it is instead to say that it doesn’t result in a distinctively linguistic mistake, that is, in misusing the expression. It is natural to think that these two construals of semantic correctness are simply about different things and not in competition with each other. However, this is not the common view. Instead, several philosophers who subscribe to the orthodox construal have argued that the alternative construal of correctness as use in accordance with meaning doesn’t make any sense, partly because there are no clear cases of linguistic mistakes (Whiting 2016, Wikforss 2001). In this paper I develop and defend the idea that there’s a distinctively linguistic notion of correctness as use in accordance with meaning and argue that there are clear cases of linguistic mistakes. (shrink)

This paper examines two mistakes regarding David Lewis’ Principal Principle that have appeared in the recent literature. These particular mistakes are worth looking at for several reasons: The thoughts that lead to these mistakes are natural ones, the principles that result from these mistakes are untenable, and these mistakes have led to significant misconceptions regarding the role of admissibility and time. After correcting these mistakes, the paper discusses the correct roles of time and admissibility. (...) With these results in hand, the paper concludes by showing that one way of formulating the chance–credence relation has a distinct advantage over its rivals. (shrink)

There are two ways interpreters have tended to understand the nature of the laws of Kant’s pure general logic. On the first, these laws are unconditional norms for how we ought to think, and will govern anything that counts as thinking. On the second, these laws are formal criteria for being a thought, and violating them makes a putative thought not a thought. These traditions are in tension, in so far as the first depends on the possibility of thoughts that (...) violate these laws, and the second makes violation impossible. In this essay I develop an interpretation of Kant’s pure general logic that overcomes this tension. It accounts for the possibility of logical mistakes, as the first tradition does, while still establishing the absolute impossibility of logical aliens, as the second tradition does. I then argue that the formalist insight that illogical exercises of the understanding are not alternative ways coherent thoughts could have been, but are mere confusions, is fundamental for achieving a proper understanding of the absolute normativity of the laws of pure general logic. (shrink)

This paper is an analysis of the concept "Mistake in Performance," a phrase first coined by Miss Elizabeth Anscombe in her monograph On Intention. The author shows that examples of a mistake in performance are nothing but cases of ordinary mistakes of judgment. The only difference between the two is that in cases of mistake in performance the agent acts on the basis of an erroneous judgment, that is, he fails to do what he intended to do.

This essay constitutes a response to Mikkel Bolt Rasmussen’s essay “A Note on Socially Engaged Art Criticism”. In particular, the essay focuses on the concept of an “exculpatory critique”. This term refers to a set of arguments in contemporary art criticism which contend that artistic practices that engage directly with processes of social or political change sacrifice their aesthetic validity while also providing an ideological justification for existing systems of domination. Kester seeks to demonstrate some of the shortcomings involved (...) in this critique by examining the underlying model of political transformation on which it is based and outlining an alternative account of art’s role in social action. (shrink)

Category mistakes are sentences such as ”The number two is blue’ or ”Green ideas sleep furiously’. Such sentences are highly infelicitous and thus a prominent view claims that they are meaningless. Category mistakes are also highly prevalent in figurative language. That is to say, it is very common for sentences which are used figuratively to be such that, if taken literally, they would constitute category mistakes. In this paper I argue that the view that category mistakes (...) are meaningless is inconsistent with many central and otherwise plausible theories of figurative language. Thus if the meaninglessness view is correct, the theories in question must each be rejected, and conversely, if any of the theories in question is correct, the meaninglessness view must be wrong. The debates concerning the semantics of figurative language and concerning the semantic status of category mistakes are closely connected. (shrink)

This chapter focuses on one of the common fallacies in Western philosophy called 'proximate causation'. One commits this variety of causal fallacy when one mistakes the relevance of proximate causation. One mistakes the relevance of proximate causation when one thinks the fact that something is a proximate cause makes it irrelevant to the story of how the event in question happened. Mistaking the relevance of proximate causation can also “go the other way”. That is, one can overinflate the (...) importance of something being a proximate cause. This is often done by those looking to avoid responsibility for their actions. Matters of causation are never simple. And sometimes whether something is a proximate cause is relevant to the issue at hand. But we must be careful to make sure that we do not mistake its relevance. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than (...) simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

A regulative norm for permissible defense distinguishes the conditions under which we will hold defenders to be innocent of any wrongdoing from those in which we hold them responsible for assault or manslaughter. The norm must strike a fair balance between defenders' security, on the one hand, and other agents’ legitimate claim to live without fear of suffering mistaken defensive harm, on the other. Since agents must make defensive decisions under high pressure and on only partial information, they will sometimes (...) make mistakes. We have reason to want a norm that considers a mistake permissible when it was highly likely on the evidence that defense was proportionate and necessary to avert a threat. However, adopting an evidentialist norm under non-ideal conditions is treacherous business. I briefly survey empirical data suggesting that the type and extent of bias prevalent in the US renders a straightforward evidentialist norm unjust, and thus since the legal practice in the US relies on such a norm, we must explore avenues for reform. Preferably this will take the form of adopting a modified evidential norm, and I explore some promising options. If this proves impossible, however, then we have to accept a strict regulative norm (which does not consider any mistakes permissible), as the sole just alternative. (shrink)

“Opt-out” organ procurement policies based on presumed consent are typically advertised as being superior to “opt-in” policies based on explicit consent at securing organs for transplantation. However, Michael Gill has argued that presumed consent policies are also better than opt-in policies at respecting patient autonomy. According to Gill’s Fewer Mistakes Argument, we ought to implement the procurement policy that results in the fewest frustrated wishes regarding organ donation. Given that the majority of Americans wish to donate their organs, it (...) is plausible that a presumed consent policy would result in fewer frustrated wishes compared to the current opt-in policy. It follows that we ought to implement a policy of presumed consent. In this paper, I first consider and find wanting an objection to the Fewer Mistakes Argument developed recently by Douglas MacKay. I also consider an objection put forth by James Taylor but argue that there is a methodological reason to prefer my own argument to Taylor’s. Finally, I argue for two theses: first, that Gill’s major argument in favor of the crucial premise of the Fewer Mistakes Argument is flawed, and second, that the major premise of the Fewer Mistakes Argument is false. (shrink)

Occurrences of sentences that are traditionally considered category mistakes, such as 'The red number is divisible by three', tend to elicit a sense of oddness in assessors. In attempting to explain this oddness, existing accounts in the philosophical literature commonly claim that occurrences of such sentences are associated with a defect or phenomenology unique to the class of category mistakes. It might be thought that recent work in experimental psycholinguistics—in particular, the recording of event-related brain potentials (patterns of (...) voltage variation in the brain)—holds the potential to shed new light on this debate. I review the relevant experimental results, before arguing that they present advocates of accounts of category mistakes with a dilemma: either the uniqueness claims should be rejected, or the experimental technique in question cannot be used to test existing accounts of category mistakes in the manner that philosophers might hope. (shrink)

John McDowell; X—Identity Mistakes: Plato and the Logical Atomists, Proceedings of the Aristotelian Society, Volume 70, Issue 1, 1 June 1970, Pages 181–196, htt.

Maher (1992b) advances an objection to dynamic Dutch-book arguments, partly inspired by the discussion in Levi (1987; in particular by Levi's case 2, p. 204). Informally, the objection is that the decision maker will "see the dutch book coming" and consequently refuse to bet, thus escaping the Dutch book. Maher makes this explicit by modeling the decision maker's choices as a sequential decision problem. On this basis he claims that there is a mistake in dynamic coherence arguments. There is really (...) no formal mistake in classical dynamic coherence arguments, but the discussions in Maher and Levi do suggest interesting ways in which the definition of dynamic coherence might be strengthened. Such a strengthened "sequentialized" notion of dynamic coherence is explored here. It so happens that even on the strengthened standards for a Dutch book, the classic dynamic coherence argument for conditioning still goes through. (shrink)

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily n...

We present the details of a methodology for quality assurance in large medical terminologies and describe three algorithms that can help terminology developers and users to identify potential mistakes. The methodology is based in part on linguistic criteria and in part on logical and ontological principles governing sound classifications. We conclude by outlining the results of applying the methodology in the form of a taxonomy different types of errors and potential errors detected in SNOMED-CT.

A suggestion famously made by Peter Winch and carried through to present discussions holds that what constitutes the social as a kind consists of something shared – rules or practices commonly learned, internalized, or otherwise acquired by all members belonging to a society. This essays argues against the explanatory efficacy of appeals to this shared something as constitutive of a social kind by examining a violation of social norms or rules, viz., mistakes. I argue that an asymmetric relation exists (...) between the notion of mistakes and that of the social. In particular, mistakes do not presuppose a concept of the social, but the concept of the social requires prior specification of a category of mistakes. But no such prior specification proves possible. The very notion of a mistake is so inchoate that it makes it impossible to provide the kind of regimentation required for a rule-governed domain. Thus, there may be recognized mistakes even in the absence of a unified system or common knowledge of norms.Later writers attempt to avoid Winch's over-strong assumption that something shared and internal constitutes the social but cannot. Extending recent work by Stephen Turner, I argue that ``the social'' is not a domain that is susceptible to lawlike treatment, but rather a heterogeneous, motley collection. For absent the assumption of a shared something, no social object exists to be explained. So, I conclude, we have at present no clear way of marking out the social as a coherent or unified domain of inquiry. (shrink)

This paper discusses mistakes that occur in improvised musical performance. I first develop a couple of distinctions that are useful to understand the varied nature of such mistakes. Particularly, I think that it is important to distinguish mistakes that depend upon formal features of the music, and mistakes that are such in virtue of a failure of the performer’s intentions. Within this latter category, I argue that it is useful to distinguish between two different layers of (...) performance intentions. Subsequently, I discuss the idea that, in improvised performance, mistakes are not merely tolerated but are, in some sense, valuable, showing how the distinction I develop can shed some light on these issues. (shrink)

Whether we understand it descriptively or normatively, the slogan that ignorance of the law is no excuse is false. Our legal system sometimes excuses those who are ignorant of the law on those grounds and should. Still, the slogan contains a grain of truth; mistakes of law excuse less readily than mistakes of fact, and ought to. This paper explains the asymmetry by identifying a principle of excuse of the form “If defendant D has a false belief that (...) p and _____, then D is excused”, which has the following feature: it is true frequently when p is a non-legal proposition, but it is false often when p is a proposition about the law. Under this principle of excuse, mistakes excuse by showing the agent to have acceptable commitments for recognizing, weighing, and responding to reasons. Many mistakes of fact show this; they show that the agent’s deliberation led to objectionable action because of faulty inputs and not to fault in the deliberation itself. Mistakes of law, by contrast, frequently indicate that the agent has faulty commitments when it comes to legal reasons; they therefore do not provide excuse under the proposed principle of excuse. It is argued that this explanation of the asymmetry between mistakes of fact and law takes us a great distance towards explaining the relevance of mental state to responsibility, an issue of great importance to moral philosophy. (shrink)

Most contemporary theories of action maintain that there are basic actions. A basic action is something that one does intentionally without doing anything else intentionally as means to that end. Most contemporary theories of action also maintain that there are non-basic actions that are mistakes in performance, where a mistake in performance is a case of mucking up what one meant to do, without the failure being the result of prevention or abnormal interference. But most contemporary theories of action (...) deny that there are basic mistakes in performance: stretches of activity that would be basic actions were they to succeed, but are in fact mistakes in performance. I argue that we have reason to think that there are basic mistakes in performance, and if there are, then we must give up a key commitment common to much contemporary action theory. The commitment is that every particular imperfect expression of the will is grounded in some particular perfect expression of the will. Giving up this commitment has important metaphysical consequences for how we think of the will as a power of agency, and implies that causal deviance perhaps isn’t the main problem that causal theorists of action ought to worry about. (shrink)

In a recent contribution to this journal, Arjaliès (J Bus Ethics 92:57—78, 2010) suggests that the emergence of socially responsible investment (SRI) in France can be best described as a social movement with a collective identity that aimed to challenge the dominant logic of the financial market. Such an account is at odds with a body of empirical studies that approaches SRI in the French context as a process of market creation led by loosely coordinated actors with contradictory and conflicting (...) interests and values, who have mainly complied with—rather than opposed—the existing dominant financial logic of the asset-management field. In this comment, we build on this prior research to contest Arjaliès' perspective on both theoretical and empirical grounds, with the aim of highlighting the shortcomings of conflating social movements and other forms of collective actions in understanding the building of new markets in organization theory and SRI studies. We contend that in mistaking for social movement forms of collective actions that underpin the emergence of markets, scholars of organization theory may confuse distinct mechanisms in their explanation of SRI emergence across countries, overlook the complex dynamics and interactions of markets and social movements, and, most importantly, fail to evaluate the real political significance of SRI as an empirical phenomenon. We propose that future research on SRI distinguishes carefully "social-movement research as a theoretical framework" from "social movement as an empirical phenomenon" in order to avoid such drawbacks while benefiting from recent advances in social-movement research. (shrink)

The final chapter of Elgin’s defends the claim that some mistakes mark significant epistemic achievements. Here, I extend Elgin’s analysis of the informativeness of mistakes for epistemic policing. I also examine the type of theory of competence that Elgin’s view requires, and suggest some directions in which this can be taken.

David Lewis's influential work on the epistemology and metaphysics of objective chance has convinced many philosophers of the central importance of the following two claims: First, it is a serious cost of reductionist positions about chance (such as that occupied by Lewis) that they are, apparently, forced to modify the Principal Principle--the central principle relating objective chance to rational subjective probability--in order to avoid contradiction. Second, it is a perhaps more serious cost of the rival non-reductionist position that, unlike reductionism, (...) it can give no coherent explanation for why the Principal Principle should hold. I argue that both of these claims are fundamentally mistaken. (shrink)

The issue of what distinguishes systems which have original intentionalityfrom those which do not has been brought into sharp focus by Saul Kripke inhis discussion of the sceptical paradox he attributes to Wittgenstein.In this paper I defend a sophisticated version of the dispositionalistaccount of meaning against the principal objection raised by Kripke in hisattack on dispositional views. I argue that the objection put by the sceptic,to the effect that the dispositionalist cannot give a satisfactory account ofnormativity and mistake, in fact (...) comprises a number of distinct lines ofargument, all of which can be satisfactorily answered by the dispositionalist. (shrink)

Aesthetic attraction and artful execution of the object, careful design and seemingly blatant falsification by the creator, voluntarily accepted counterfeit imitation and celebration of a melancholy-filled illusion – these, and many other, often contradictory, particularities can describe one of the most complex aesthetic phenomena, that of fake ruins. Questions of perfection and mistake, accurate planning and permissive randomness, genuineness and authenticity – or the convincing justification of aesthetic experience despite the complete lack of them – profound references to the nature (...) of decay, the transience of all human creation and nostalgia can all be found around this object of art. In this article I analyse the fakeness of fake ruins with regard to the multiple consequences that this type of fake can contribute to the better understanding of both their aesthetics and the concept of mistake. (shrink)

It is a matter of contention whether or not a general explanatory framework for the biological sciences would be of scientific value, or whether it is even achievable. In this paper we suggest that both are the case, and we outline proposals for a framework capable of generating new scientific questions. Starting with one clear characteristic of biological systems – that they all have the potential to make mistakes - we aim to describe the nature of this potential and (...) the common processes that lie behind it. Given that under most circumstances biological systems function effectively, an examination of different kinds of mistake-making provides pointers to mechanisms that must exist to make failure uncommon. This in turn informs a framework for systematic enquiry, which in this paper we apply to the haemostatic system, but which we believe could be applied to any system across biology. (shrink)

The issue of what distinguishes systems which have original intentionalityfrom those which do not has been brought into sharp focus by Saul Kripke inhis discussion of the sceptical paradox he attributes to Wittgenstein.In this paper I defend a sophisticated version of the dispositionalistaccount of meaning against the principal objection raised by Kripke in hisattack on dispositional views. I argue that the objection put by the sceptic,to the effect that the dispositionalist cannot give a satisfactory account ofnormativity and mistake, in fact (...) comprises a number of distinct lines ofargument, all of which can be satisfactorily answered by the dispositionalist.Two central problems raised by the sceptic consist in explaining (1) theextension of the term which a subject uses, and (2) the fact that the subjectintends to use the term with that extension, and is thus justified in her use.I adapt a suggestion of Blackburn's, that the extension of a word is fixed bya person's extended first-order dispositions to use it, and suggest that thereis no coherent possibility of a subject being disposed to makesystematic mistakes in connection with many ordinary words; the scepticalproblem does not apply in the same way throughout language. It is furtherargued that an account which appeals to a subject's second-orderdispositions to maintain a consistent pattern of extended first-orderdispositions to use words is able to provide a naturalistic basis to answerthe normative questions about justification of use. Three other variants ofthe mistake objection which are also revealed by a careful examination ofKripke's arguments are distinguished and it is shown that the dispositionalisthas adequate resources to meet them.The appeal to second-order dispositions provides a principled way ofdistinguishing between those systems (animal or machine) which have originalintentionality, and those which do not. (shrink)