The concept of causation is fundamental to ascribing moral and legal responsibility for events. Yet the precise relationship between causation and responsibility remains unclear. This book clarifies that relationship through an analysis of the best accounts of causation in metaphysics, and a critique of the confusion in legal doctrine.

Originally published: Oxford: Clarendon, 1997.

This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions are the "same" (...) for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them. (shrink)

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.

The Breivik case in Norway has motivated a reassessment of Norwegian insanity law by the Norwegian government. Because Norway since 2002 has utilized a “medical model” for legal insanity—a model according to which the legal excuse of insanity is identified with some medical concept such as psychosis—the Norwegian reexamination of its law is not without interest throughout the world. In this paper, I utilize the Anglo-American experience with different medical models for insanity to assess the current Norwegian law on insanity. (...) I defend a strong version of the medical model against standard criticisms advanced against it in the Anglo-American literature, and venture some suggested improvements in how that model was applied in the Breivik case. (shrink)

A perennial question of jurisprudence has been whether there is a relationship between law and morality. Those who believe that there is no such relationship are known as while those who hold that some such relationship exists are usually tagged with the label Unfortunately, the latter phrase has been used in quite divergent senses. Sometimes it is used to designate any objectivist position about morality; as often, it labels the view that human nature determines what is objectively good or right; (...) and perhaps as often, it labels the view that some natural facts other than facts about human nature determine what is objectively good or right; and sometimes the label presupposes some divine origins to both morality and human law. (shrink)

This book is a sophisticated, detailed, and original examination of the main ideas that have dominated Anglo-American legal philosophy since the Second World War. The author probes such themes as: whether there can be right answers to all disputed law cases; how laws and other rules impact on the practical rationality of actors subject to their authority; whether general principles justifying the law must themselves be thought of as part of the law binding on legal actors; and the possibility of (...) an interpretivist jurisprudence that is continuous with law practice in a given culture. (shrink)

This paper is intended to be a summary of the author's views on the relationship between law and morality worked out over the past three decades in jurisprudence. The paper preliminarily clarifies the matter by isolating some lines of cleavage separating different questions askable about this relationship. With this done, the author argues for two theses. One, that judges are obligated to use morality in their decisions in particular cases; and two, that the morality judges are obligated to use in (...) their judicial reasonings, is best seen as the natural lawyer sees it, namely, as being part of the law that obligates judges in their role as judges. The author not only believes these theses to be true; he also thinks that these theses are practically important, in that their acceptance by judges makes for better judging. (shrink)

Freud justified his extensive theorizing about dreams by the observation that they were “the royal road” to something much more general: namely, our unconscious mental life. The current preoccupation with the theory of excuse in criminal law scholarship can be given a similar justification, for the excuses are the royal road to theories of responsibility generally. The thought is that if we understand why we excuse in certain situations but not others, we will have also gained a much more general (...) insight into the nature of responsibility itself. Nowhere has this thought been more evident than in the century-old focus of criminal law theoreticians on the excuse of insanity, a focus that could not be justified by the importance of the excuse itself. In this paper I wish to isolate two theories of excuse, each of which instantiates its own distinctive theory of responsibility. One is what I shall call the choice theory of excuse, according to which one is excused for the doing of a wrongful action because and only because at the moment of such action's performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise. Such a choice theory of excuse instantiates a more general theory of responsibility, according to which we are responsible for wrongs we freely choose to do, and not responsible for wrongs we lacked the freedom to avoid doing. The second I shall call the character theory of excuse, according to which one is excused for the doing of a wrongful action because and only because such action is not determined by those enduring attributes of ourselves we call our characters. (shrink)

In various areas of Anglo-American law, legal liability turns on causation. In torts and contracts, we are each liable only for those harms we have caused by the actions that breach our legal duties. Such doctrines explicitly make causation an element of liability. In criminal law, sometimes the causal element for liability is equally explicit, as when a statute makes punishable any act that has “caused … abuse to the child….” More often, the causal element in criminal liability is more (...) implicit, as when criminal statutes prohibit killings, maimings, rapings, burnings, etc. Such causally complex action verbs are correctly applied only to defendants who have caused death, caused disfigurement, caused penetration, caused fire damage, etc. (shrink)

In this response to the review of Moore, Causation and Responsibility, by Larry Alexander and Kimberly Ferzan, previously published in this journal, two issues are discussed. The first is whether causation, counterfactual dependence, moral blame, and culpability, are all scalar properties or relations, that is, matters of more-or-less rather than either-or. The second issue discussed is whether deontological moral obligation is best described as a prohibition against using another as a means, or rather, as a prohibition on an agent strongly (...) causing a prohibited result that was not about to happen anyway while intending to do so. (shrink)

Neuroscience is commonly thought to challenge the basic way we think of ourselves in ordinary thought, morality, and the law. This paper: describes the legal institutions challenged in this way by neuroscience, including in that description both the political philosophy such institutions enshrine and the common sense psychology they presuppose; describes the three kinds of data produced by contemporary neuroscience that is thought to challenge these commonsense views of ourselves in morals and law; and distinguishes four major and several minor (...) kinds of challenges that that data can reasonably be interpreted to present. The major challenges are: first, the challenge of reductionism, that we are merely machines; second, the challenge of determinism, that we are caused to choose and act as we do by brain states that we do not control; third, the challenge of epiphenomenalism, that our choices do not cause our actions because our brains are the real cause of those actions; and fourth, the challenge of fallibilism, that we do not have direct access to those of our mental states that do cause our actions, nor are we infallible in such knowledge as we do have of them. (shrink)

In this reply, I seek to summarize fairly the criticisms advanced by each of my four critics, Jonathan Schaffer, Gideon Yaffe, John Gardner, and Carolina Sartorio. That there is so little overlap either in the aspects of the book on which they focus or in the arguments they advance about those issues has forced me to reply to each of them separately. Schaffer focuses much of his criticisms on my view that absences cannot serve as causal relata and argues that (...) this commits me to the view that double preventions (such as beheadings) cannot be causal of events such as deaths. I deny that double preventions such as beheadings are not causal, while admitting that other double preventions are not causal but denying that this latter conclusion is unwelcome in its implications. Yaffe criticizes my view that a person substantially causing some harm H is sufficient for that person having performed the activity of H-ing, whereas I affirm that causing H is sufficient for doing the action of H-ing even if it is not sufficient for intentionally H-ing (Yaffe's definition of ). Gardner takes issue with my for the relevance of causation to moral blame; he urges that we cannot infer that we are more guilty (when we cause a harm than when we don't) from either the psychological fact that we feel more guilty or from the moral fact that it is virtuous to feel such heightened guilt, because it is viciously circular: we feel such guilt only because we have already judged that we are more guilty, and it is virtuous to feel such guilt only because we in fact are more guilty. I deny such circularity exists. Sartorio takes issue with my thesis that in omissive overdetermination cases (where each omission is sufficient to fail to prevent some harm, meaning neither is necessary) neither omitter is morally responsible for the harm. I trade intuitions with Sartorio about a range of related cases that we each think bears on the issue. (shrink)

The concept of causation is fundamental to ascribing moral and legal responsibility for events. Yet the precise relationship between causation and responsibility remains unclear. This book clarifies that relationship through an analysis of the best accounts of causation in metaphysics, and a critique of the confusion in legal doctrine. The result is a powerful argument in favour of reforming the moral and legal understanding of how and why we attribute responsibility to agents.

Professor Michael S. Moore, Charles R. Walgreen, Jr. Chair and Co-Director, Program in Law and Philosophy at the University of Illinois College of Law, delivered Duke Law's Annual Brainerd Currie Memorial Lecture entitled "The Elusive Quest for a Constitutional Right to Liberty." One of the country's most prominent authorities on the intersection of law and philosophy, he has published eight books and some 60 major articles, which have appeared in the country's top law reviews and peer reviewed journals in philosophy (...) and psychiatry. He is the author of Placing Blame, a General Theory of the Criminal Law, widely regarded as the leading modern statement of the retributivist theory of punishment and of that theory's systematic application to criminal law doctrine. In Act and Crime: The Philosophy of Action and its Implications for Criminal Law, Moore provided a unified theory of action that underlies English and American criminal jurisprudence. Professor Moore has presented more than 150 lectures and papers in law, jurisprudence, political theory, legal philosophy, political science and economics, philosophy, psychology, and psychiatry. Sponsored by the Office of the Dean. (shrink)

Freud justified his extensive theorizing about dreams by the observation that they were “the royal road” to something much more general: namely, our unconscious mental life. The current preoccupation with the theory of excuse in criminal law scholarship can be given a similar justification, for the excuses are the royal road to theories of responsibility generally. The thought is that if we understand why we excuse in certain situations but not others, we will have also gained a much more general (...) insight into the nature of responsibility itself. Nowhere has this thought been more evident than in the century-old focus of criminal law theoreticians on the excuse of insanity, a focus that could not be justified by the importance of the excuse itself. In this paper I wish to isolate two theories of excuse, each of which instantiates its own distinctive theory of responsibility. One is what I shall call the choice theory of excuse, according to which one is excused for the doing of a wrongful action because and only because at the moment of such action's performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise. Such a choice theory of excuse instantiates a more general theory of responsibility, according to which we are responsible for wrongs we freely choose to do, and not responsible for wrongs we lacked the freedom to avoid doing. The second I shall call the character theory of excuse, according to which one is excused for the doing of a wrongful action because and only because such action is not determined by those enduring attributes of ourselves we call our characters. (shrink)

Radical psychiatrists and others assert that mental illness is a myth. The opening and closing portions of the paper deal with the impact such argument has had in law and psychiatry. The body of the paper discusses the five versions of the myth argument prevalent in radical psychiatry: (A) that there is no such thing as mental illness; (B) that those called ?mentally ill? are really as rational as everyone else, only with different aims; that the only reasons anyone ever (...) thought differently was (C) because of unsophisticated category mistakes or (D) because of an adherence to the epistemology of a sick society; and (E) that the phrase ?mental illness? is used to mask value judgments about others? behavior in pseudo?scientific respectability. Reasons are given for rejecting each of these versions of the argument that mental illness is a myth. (shrink)

Stephen Morse has long proclaimed there to be a “fundamental psycho-legal error” that is regularly made by legal and social/psychological/medical science academics alike. This is the error of thinking that causation of human choice by factors themselves outside the chooser’s control excuses that chooser from moral responsibility. In this paper, I examine Morse’s self-labelled “internalist” defense of his thesis that this is indeed an error, and finds such internalist defense incomplete; needed is the kind of externalist defense of Morse’s thesis (...) that can only be provided by a worked-out compatibilist moral philosophy. The body of the paper outlines the kinds of compatibilisms that are plausible, contrasting them with two less plausible attempts to salvage responsibility in the face of an advancing neuroscientific determinism. These two less plausible rescue attempts, libertarianism and fictionalism, each seek to salvage responsibility even while not disavowing the FPLE. (shrink)

September 11, 2001 brought to legal awareness an issue that has long puzzled metaphysicians. The general issue is that of event-identity, drawing the boundaries of events so that we can tell when there is one event and when there are two. The September 11th version of that issue is: how many occurrences of insured events were there on September 11, 2001 in New York? Was the collapse of the two World Trade Center Towers one event, despite the two separate airliners (...) crashing into each tower? Or were these two separate insured events? (shrink)

September 11, 2001 brought to legal awareness an issue that has long puzzled metaphysicians. The general issue is that of event-identity, drawing the boundaries of events so that we can tell when there is one event and when there are two. The September 11th version of that issue is: how many occurrences of insured events were there on September 11, 2001 in New York? Was the collapse of the two World Trade Center Towers one event, despite the two separate airliners (...) crashing into each tower? Or were these two separate insured events? (shrink)

In various areas of Anglo-American law, legal liability turns on causation. In torts and contracts, we are each liable only for those harms we have caused by the actions that breach our legal duties. Such doctrines explicitly make causation an element of liability. In criminal law, sometimes the causal element for liability is equally explicit, as when a statute makes punishable any act that has “ caused … abuse to the child….” More often, the causal element in criminal liability is (...) more implicit, as when criminal statutes prohibit killings, maimings, rapings, burnings, etc. Such causally complex action verbs are correctly applied only to defendants who have caused death, caused disfigurement, caused penetration, caused fire damage, etc. (shrink)

Yaffe's handling of two general questions is assessed in this review. The first question is why mere attempts (as opposed to successful wrongdoing) should be made punishable in a well-conceived criminal code. The second question is how attempt liability should be conceived in such a code. As to the first question, Yaffe's nonsubstantive mode of answering it (in terms of his ) is contrasted to answers based on some more substantive desert-bases; Yaffe's own more substantive kind of answer (in terms (...) of a desert-base of ) is examined in light of the implication that the traditional requirements of trying and intending are mere proxies for faulty reason recognition and response as the basis for blaming and punishing attempts. As to the second question, Yaffe's analysis of trying in terms of a is examined in some detail. Canvassed here are the subquestions of: (1) whether appropriate assessibility by certain norms of rationality can give the nature of intending and thus of trying; (2) whether the externally de dicto intent requirements of criminal law statutes can easily be interpreted and applied by standard, extensional methods; (3) whether the distinctions between various kinds of elements within the content of intentions, can be justified ontologically or only practically; (4) whether actors necessarily intend results of their actions that are to other results that clearly are intended, and if not, whether such actors are nonetheless just as blameworthy for those results as if they did intend them; and (5) whether intention with respect to circumstance-elements differ (in either their psychology or in their moral effect) from beliefs with respect to such circumstance-elements. (shrink)

In this reply, I seek to summarize fairly the criticisms advanced by each of my four critics, Jonathan Schaffer, Gideon Yaffe, John Gardner, and Carolina Sartorio. That there is so little overlap either in the aspects of the book on which they focus or in the arguments they advance about those issues has forced me to reply to each of them separately. Schaffer focuses much of his criticisms on my view that absences cannot serve as causal relata and argues that (...) this commits me to the view that double preventions cannot be causal of events such as deaths. I deny that double preventions such as beheadings are not causal, while admitting that other double preventions are not causal but denying that this latter conclusion is unwelcome in its implications. Yaffe criticizes my view that a person substantially causing some harm H is sufficient for that person having performed the activity of H-ing, whereas I affirm that causing H is sufficient for doing the action of H-ing even if it is not sufficient for intentionally H-ing. Gardner takes issue with my “experiential argument” for the relevance of causation to moral blame; he urges that we cannot infer that we are more guilty from either the psychological fact that we feel more guilty or from the moral fact that it is virtuous to feel such heightened guilt, because it is viciously circular: we feel such guilt only because we have already judged that we are more guilty, and it is virtuous to feel such guilt only because we in fact are more guilty. I deny such circularity exists. Sartorio takes issue with my thesis that in omissive overdetermination cases neither omitter is morally responsible for the harm. I trade intuitions with Sartorio about a range of related cases that we each think bears on the issue. (shrink)