Crim Law and Philos DOI 10.1007/s11572-017-9446-5 ORIGINAL PAPER
Aspiration, Execution, and Controversy: Reply to My Critics Douglas Husak1
Ó Springer Science+Business Media B.V. 2017
Abstract I respond to Michael Zimmerman and Gideon Yaffe, both of whom have written thoughtful and constructive criticisms of my ‘‘Ignorance of Law’’. Zimmerman believes I do not go far enough in exculpating morally ignorant wrongdoers; he accuses me of lacking the courage of my convictions in allowing exceptions for reckless wrongdoers (who I allege to have a lesser degree of blameworthiness than those who are knowledgeable) and for willfully ignorant wrongdoers (who I allege to be as blameworthy as those who are knowledgeable). Yaffe, by contrast, thinks I rely on a defective foundation of moral blameworthiness. He proposes an alternative account he alleges to conform more closely to common sense. In responding to both critics, I emphasize that our points of agreement may be more significant than our disagreements. Keywords Ignorance of law Exculpation Overcriminalization Desert Recklessness Wilful ignorance Reason responsiveness I had several aspirations, both large and small, when writing Ignorance of Law. At the most general level, I hoped to call attention to the injustice of the rules and doctrines that govern defendants who breach penal laws without realizing they have done so. Most schoolchildren can recite the (oversimplified) adage that Anglo-American criminal justice does not recognize ignorance of law as an excuse from liability. I contend that this position needs fundamental rethinking. Neither of my critics questions the legitimacy or importance of this initial objective. Almost no sophisticated commentator is prepared to defend conventional wisdom about the blame deserved by defendants who are unaware they have broken the law. Nearly all legal philosophers concur that the state punishes such persons far too readily and that this area of the penal justice system is ripe for a major overhaul. More specifically—and far more tenuously—I also aspired to solve this normative problem. I suggested how to reshape the rules of the criminal law to better conform to & Douglas Husak
[email protected] 1
Distinguished Professor of Philosophy, Rutgers University, New Brunswick, NJ, USA
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principles of retributive desert when defendants are prosecuted despite their ignorance of the law they have breached. I tried not to place too much reliance on intuitions in this endeavor. Instead, I defended the relevant part of a theory of blameworthiness and responsibility. I looked partly to the law itself for ideas about the direction that reform should take. The long-standing commitment to mens rea expresses the unwillingness of our criminal justice system to punish persons who are not blameworthy for their conduct. But mens rea, as traditionally construed, holds defendants to be blameless only when they have made material mistakes of fact, not when they have made comparable mistakes of law. I argued that this narrow but familiar interpretation of mens rea should be broadened to include both kinds of mistakes. Hence the penal law would treat ignorance of law and ignorance of fact symmetrically. To this end, I proposed to replicate the culpability structure that pertains to mistake of fact in the rules and doctrines that pertain to mistake of law. With this simplifying reform in place, the penal law would no longer need to struggle with the tricky question of whether a given mistake should be categorized as factual or legal. If this approach were implemented, I concluded that persons would almost never deserve to be held blameworthy and criminally responsible unless they were aware of or reckless about both the non-moral as well as the moral facts that apply to their conduct. Those who believe that penal liability should sometimes be imposed on persons who are ignorant of law must defend a kind of strict liability and hold that the rules and doctrines of the criminal law should infringe or compromise on principles of desert—a result our penal justice system should make strenuous efforts to avoid even though it may occasionally be desirable. If the rules and doctrines of the criminal law necessarily fall short of our moral ideals, it is important to know where and why this failure occurs. Needless to say, my attempt to articulate and apply a theory of blameworthiness, responsibility and/or desert did not garner uniform assent from philosophers of criminal law. Although both of my critics more or less concur about the existence of a normative problem in existing law, they disagree vehemently about how to fix it. Anyone could have anticipated this reaction; I knew my particular attempt to execute my aspiration would be highly controversial. As I stressed on numerous occasions throughout Ignorance of Law, few normative issues are more unsettled than the basis or foundation of moral and penal responsibility. Every conceivable position on the spectrum is represented by able philosophers: no one is responsible for anything (abolitionism), everyone is responsible for everything (explosionism), and just about everything in-between. Since the best and brightest contemporary moral and legal philosophers disagree so profoundly about my underlying normative foundation, they are bound to be skeptical of the edifice I construct upon it. Still, I argued that on either of the two most plausible theories of responsibility and blameworthiness philosophers tend to defend, the criminal law should be far more charitable to defendants who violate criminal laws while ignorant they have done so. My execution of this aspiration coheres with earlier projects I have undertaken. In Overcriminalization, I argued that our system of criminal justice punishes too many persons with too much severity.1 Almost all of my efforts were devoted to narrowing the reach of the substantive criminal law—with drug offenses as the primary culprit. Clearly, however, the penal law might further the objective of punishing fewer persons with less severity just as effectively by enlarging the scope of defenses as by contracting the scope of offenses. The defense of ignorance of law is the most promising place to begin. Despite this parallel, my thoughts on this latter topic turn out to be more speculative than on any project I have undertaken. In my earlier work, I tended to emulate the methodology I attribute to 1
Douglas Husak: Overcriminalization (Oxford: Oxford University Press, 2008).
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Joel Feinberg. As he cautioned, philosophers who expend a great deal of effort with the most basic theoretical issues seldom seem able to make progress with the practical concerns that lie above the foundation. Thus Feinberg devotes most of his energy at what has been described as middle-level theory.2 Even though I usually heed his cautionary remarks, I rashly decided to make an exception when writing Ignorance of Law. Unless we rely solely on intuitions, disputes about the responsibility of legally ignorant defendants are almost always due to disagreements about the general theory of blameworthiness on which they rest. Little headway can be made without addressing foundational issues. Those philosophers who resist the specter of hard determinism and hold that some persons are blameworthy for some of their acts tend to locate responsibility in a defect of agency or will. I do so as well. My own embellishment of this view, roughly and subject to qualification, is that persons are not fully subject to blame unless they engage in conduct that is wrongful according to their own lights. The paradigm of fully blameworthy behavior involves a kind of irrationality in which persons are aware of their failure to conform to the moral reasons they recognize apply to their behavior. I acknowledge that the state may sometimes have pragmatic grounds to retreat from this purely subjectivist vision of criminal responsibility. Moreover, retreat from this subjectivist vision may also be needed for what I regard as principled reasons. Two such grounds in particular attract the attention of one of my critics. I hold that agents are blameworthy even though they have not unequivocally engaged in wrongdoing by their own lights when their ignorance is willful. Roughly, I hold persons to be fully blameworthy when they are ignorant they are acting wrongly because they have deliberately refrained from taking advantage of an easy opportunity to gain awareness in order to try to preserve an excuse they realize would be lost were they to become knowledgeable. I also hold that agents are blameworthy even though they are not unequivocally engaging in wrongdoing by their own lights when they make reckless mistakes about the wrongfulness of their conduct. Agents who consciously disregard a substantial risk that they might be acting impermissibly are blameworthy, albeit to a lesser extent than those who realize full well that their conduct is wrongful. Any student of criminal law will be familiar with these principled positions in the domain of mistakes of fact, and I extend conventional wisdom about these topics to the domain of ignorance of law. I am enormously grateful to Michael Zimmerman and Gideon Yaffe for responding to my views in Ignorance of Law. I cannot begin to respond to all of their worries—even if I knew how to do so. For example, I combine a purely objectivist account of first-order morality—of what is right and wrong—with a highly subjectivist account of blameworthiness—of what makes persons responsible for wrongdoing. Although I am not strongly wedded to any particular account, the purely objectivist view of first-order morality toward which I lean characterizes conduct as wrongful when the moral reasons against performing it are stronger than those in its favor. I continue to hope that my mixture is not toxic, although I might be too optimistic. Zimmerman believes my objectivist account is internally flawed; Yaffe contends that I cannot combine it with my particular account of blameworthiness. I am unconvinced, but will leave the fundamental issue about the nature of wrongdoing to those who specialize more narrowly in moral philosophy. In any event, despite the familiar tendency of we philosophers to stress our disagreements, it is often more important to emphasize the major points on which we agree. I believe both of my critics concurs in concluding that I have made important progress on the topic, even if they 2
See the description of methodology in Joel Feinberg: Harm to Others (New York: Oxford University Press, 1984, pp. 16–19).
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think my views are vulnerable to serious criticisms. The topic of overcriminalization is now the subject of countless articles and reviews. I can only hope that Ignorance of Law gains a comparable reception and that my efforts stimulate further work on the topic of whether and to what extent persons deserve liability and punishment for breaching penal laws without realizing they have done so. I remain convinced that our existing rules and doctrines about ignorance of law are unjust and in need of radical reform. I begin with Michael Zimmerman. He is among the small number of legal philosophers who accepts the general theory of responsibility that underlies my position—which is no surprise, inasmuch as his work has been enormously influential in my thinking about the blameworthiness of wrongdoers who are ignorant of the norms they violate. We agree, he correctly notes, with the principle that ‘‘no rational person can be faulted for failing to respond to a reason he is unaware applies to his conduct’’ (8). This is an extremely important concession that few philosophers would be prepared to make. To mark his awareness of how unusual this principle is, he indicates that ‘‘many would find [it] shocking’’ (4)—even though he himself believes it to be true. The majority of moral and legal commentators presuppose (explicitly or implicitly) that wrongdoers often are blameworthy for committing wrongs they had no inking they had committed. Thus it is important to emphasize that the agreements between Zimmerman and me are far more significant than our disagreements. In light of this fact, our disputes may seem like little more than in-house quibbles. Many philosophers who read our exchange may think we are obsessed with minor details but have missed the big picture. Despite our fundamental similarities, Zimmerman is among what must be a tiny handful of theorists who believe I am insufficiently generous in exempting legally ignorant defendants from blame. He points out, correctly, that I depart from my own foundational principle about blameworthiness in two places, and chides me for the apparent inconsistency. Thus he adopts what might seem to be a ‘‘purist’’ position about blameworthiness that is uncompromisingly subjectivist. My own instincts are to bend or qualify this vision in a few places. In particular, Zimmerman would grant a complete excuse to persons who do not believe they are violating a norm but suspect and thus are reckless about whether they are doing so. Moreover, unless their culpability can be established indirectly by means of tracing, he would not blame persons who are willfully ignorant about their transgressions. Although Zimmerman has shaken my confidence about both of these matters, I remain inclined to disagree on both fronts. The former wrongdoer, I believe, is somewhat but not fully blameworthy, whereas the latter wrongdoer is just as blameworthy as the person who is aware of his violation. Before addressing his two specific reservations, however, it may be worth mentioning that Zimmerman too recognizes what I regard as an exception (but he may construe as a qualification or amendment) to his general insistence that blameworthiness for an act requires knowledge of its wrongfulness. He is willing to impose blame when the person who is unaware his act is wrongful is culpable for his lack of awareness. Culpability for one’s ignorance can be derived from a strategy of tracing—that is, from a prior culpable act or omission X to which one’s current ignorance about the wrongfulness of Ø is due. Pursuant to such a strategy, a person may be blameworthy for his ignorant violation of Ø after all. I am skeptical of and ultimately reject tracing strategies—another controversial issue about which reasonable minds disagree. But that is not my present point. Instead, I stress that we appear to recognize different exceptions to the general rule that requires knowledge of the wrongfulness of Ø as a necessary condition of moral blameworthiness for
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it. He accepts tracing; I accept recklessness and willful ignorance. Zimmerman is not quite the ‘‘purist’’ about the foregoing principle as his current paper might suggest.3 In what follows, however, I will focus on the two specific objections from the title of his paper—those that involve exceptions (or, perhaps, qualifications or amendments) to my (that is, to our) foundational principle about blameworthiness. First, I continue to believe that a wrongdoer who consciously (that is, knowingly) disregards a substantial risk that she might be acting impermissibly deserves some quantum of blame, albeit less than that of a person who understands perfectly that her action is wrong. Second, a person who deliberately avoids learning the moral status of her behavior in order to preserve a possible excuse from blame and liability is just as blameworthy as a person who knows she is acting wrongfully. Unlike Zimmerman, therefore, I openly extend our general principle that blameworthiness requires a person to act wrongfully according to her own lights. These two deviations from my foundational principle are difficult to defend, as Zimmerman so ably demonstrates. First, let me describe what I take to be the state of recklessness with respect to the wrongfulness of behavior. I construe it as a state in which I find myself fairly often, and my example of battery recycling is designed as an illustration. The batteries in my flashlight burned out on a camping trip I took at the time I was writing Ignorance of Law. I had no idea whether these batteries pose a sufficiently significant threat to the environment to require recycling, or whether they could be thrown out along with my ordinary garbage. Depending on how this example is embellished, orthodox thinkers about the rules and doctrines pertaining to ignorance would struggle to categorize the proposition of which I am uncertain as factual or moral. Actually, I think I was ignorant of multiple propositions, some of which are moral and others of which are factual. More importantly, however, I do not understand why this classificatory exercise is worth performing; my position of symmetry holds that the same principles governing blameworthiness and responsibility apply indifferently to each kind of mistake. At any rate, at the moment I had to make my decision to throw my old batteries into the garbage or go to the trouble of recycling them, I was painfully aware I was unsure which action was right (and my uncertainty persists to this day). Suppose the act I actually performed—throwing my batteries into the garbage—was the wrong option; it was not the act I ought to have performed had I objectively weighed the balance of reasons correctly. Why should I conclude that I am not blameworthy to any degree in this situation? If I am not blameworthy to any extent whatever, my quantum of blameworthiness (which is zero) would be equal to that of the camper who has no clue he is behaving wrongfully and is quite sure his action is permissible. I simply do not see why I should believe this equation holds—regardless of how the proposition(s) of which I was unsure is categorized. By contrast, I think Zimmerman holds that the state of recklessness about wrongdoing as I have just described it is inconsistent with the logic of belief. When a camper throws away his old batteries in a state of uncertainty about whether they should be recycled, he allegedly attaches some degree of credence to propositions such as ‘‘if not recycled, these batteries will substantially harm the environment.’’ Depending on what credence he assigns to this proposition, we can in principle determine whether the camper either ‘‘flat-out’’ 3
To be sure, Zimmerman scores points by stressing that ‘‘almost everyone’’ accounts for ‘‘an agent’s being (indirectly) morally responsible for something on the basis of that agent’s being (directly) morally responsible for something else’’ (13). In cases in which we (knowingly) kill by flipping a switch, for example, responsibility for throwing a switch becomes responsibility for the deaths that result. I make no effort to reconcile my general theory of blameworthiness with a sensible position on the problem of resultant moral luck..
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believes or does not believe he is acting wrongfully (18). For any moral proposition, persons either believe it or they do not. Zimmerman alleges (mostly in correspondence) that when I am uncertain of the truth of the relevant proposition, I will invariably lean morally towards one of my options and away from the other(s)—unless I am sure that all of them are of equal merit. If this allegation is correct, Zimmerman concludes I will believe that I ought to choose that option and ought not to choose any of the others, in the relevant sense of ‘‘ought’’ (which he calls the prospective sense). If I choose the option I do not believe to be wrong, I am not to blame at all. But if I lean toward the belief that my action is wrong yet perform it anyway, I am fully blameworthy. No logical space remains for an intermediate position. If I have characterized his view correctly, my disagreement with Zimmerman involves a dispute about the nature of mental states such as belief—as they pertain (I assume) both to propositions of morality and to matters of fact. This disagreement has ramifications that extend far beyond the issue of whether and to what extent morally ignorant wrongdoers are blameworthy. Elsewhere I have commented on whether the beliefs needed for culpability may be dispositional rather than occurrent, and how culpability is affected by temporary periods of distraction and forgetfulness.4 Here, as elsewhere, attention to these matters is crucial if long-standing questions in the philosophy of criminal law (e.g., the nature of recklessness) are to be resolved. I have no confidence in how these questions should be answered, but belief-like states that fall short of (what Zimmerman calls) ‘‘flat-out belief’’ seem relatively common to me.5 In any event, I do not find that Zimmerman’s position about belief accurately depicts my own phenomenology in my battery example (or in quite a few others). I do not regard myself as ‘‘inevitably leaning’’ morally toward one alternative or the other. I am genuinely unsure whether my alternatives have equal merit, and am also unsure which alternative is morally preferable. When I peer inward, I cannot report that I think the probability is 51 or 45% that I am acting wrongly. Perhaps if I reflected longer and more deeply than many of us are inclined to do in a particular circumstance, we could identify some rough level of credence we attach to any given proposition. But in ordinary life, it often strikes me as highly artificial to require the uncertain agent to specify the precise degree of credence he attaches to a moral or factual proposition in order to determine whether or not he believes it to be true. Perhaps I need to better situate my position in a larger context. It is plausible that some blameworthy individuals who commit a given wrongful action Ø are more blameworthy than others who commit that same wrongful action. Blameworthiness comes in degrees; it is a scalar rather than a binary property. The criminal law, as it has always been construed, incorporates this supposition. Persons who commit murder, for example, are more blameworthy for their wrongful action than persons who commit manslaughter, even though they commit the same wrongful action of homicide: killing another human being. The perpetrator of manslaughter acts with a lesser degree of culpability: he consciously disregards a substantial and unjustifiable risk of death, whereas the murderer kills knowingly or purposely. The failure to know that death will result—but the knowing creation of a substantial risk that death will result—makes the perpetrator of manslaughter less 4
See ‘‘Distraction and Negligence,’’ in Lucia Zedner and Julian Roberts, eds.: Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford University Press, 2012), p. 81; and ‘‘Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting,’’ 5 Criminal Law and Philosophy (2011, p. 199).
5
See Robert J. Matthews: ‘‘Beliefs and Belief’s Penumbra,’’ in Nikolaj Nottelmann, ed.: New Essays on Belief (Palgrave MacMillan, 2013, p. 100).
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blameworthy than someone who commits murder. Of course, homicide requires the defendant to cause an outcome. In principle, however, degrees of blameworthiness can also be distinguished for ‘‘non-result’’ crimes. To do so, I simply incorporate conventional wisdom about recklessness that penal theorists have accumulated for some time from the domain of fact into the domain of law. Thus someone who knows that enslaving another human being is wrong but does so anyway is more blameworthy than someone who merely knows there is a substantial risk that enslaving another human being is wrong. I had hoped that the same considerations that account for these comparative judgments in the context of fact would also account for these comparative judgments in the context of morality. In other words, the same factors that explain why wrongdoers are more blameworthy when they know the non-moral facts that make their action wrong relative to those who merely create the risk that their action is wrong will also explain why wrongdoers are more blameworthy when they know the moral facts that make their action wrong relative to those who merely create the risk that their action is wrong. Imagine the state of affairs in which recklessness were not a mode of culpability less than knowledge. Suppose Zeke works in a high-crime neighborhood and buys used merchandise from customers. He is aware of the substantial risk that many of the goods he purchases have been stolen. Or suppose Beth is helping to cast adult films. She thinks it is not unlikely that some of the actresses she hires are under the age at which they are capable of conveying effective consent. However, neither is sure they are committing a wrong. But suppose their suspicious are confirmed and a given act they perform is wrong. If so, I take both to be reckless: they consciously disregard a substantial risk their conduct may be wrong (and they are not willfully blind, a matter to which I will return). If knowledge of wrongdoing were needed to hold wrongdoers culpable to any degree, both Zeke and Beth would be entirely blameless. On my view, by contrast, both are somewhat blameworthy, but not as much as agents who know their conduct is wrongful. That is, to purchase goods one knows to be stolen, or to cast performers one knows to be under the age at which persons are competent to give effective consent, renders wrongdoers more blameworthy than Zeke or Beth respectively. This conclusion, it is important to note, preserves the thesis that culpability is a subjective state with respect to wrongfulness. Thus I stress again that Zimmerman and I agree on the most important point: blameworthiness is subjective. We differ, however, in exactly what subjective states make wrongdoers blameworthy. Knowledge or ‘‘flat-out’’ belief in wrongdoing may be the most culpable state, but it is not the only culpable state. Next, I make what I am inclined to recognize as an exception to my general account of full blameworthiness when persons are willfully ignorant that their behavior is wrongful. For such an exception to be plausible, I think willful ignorance must be characterized in a special way (which Zimmerman may be correct to treat as a stipulation): the willfully ignorant individual must scheme. That is, he must possess a particular motivation for remaining morally ignorant when he suspects the truth and would ordinarily resort to readily-available means to discover it. Without this motivation, the individual in question would be merely reckless—a degree of blameworthiness I have said to be less than that of the wrongdoer who acts knowingly. The particular motivation the schemer must possess to be fully blameworthy is a desire to remain ignorant in order to preserve an excuse he fears he would lose were he to gain knowledge. Admittedly, the person who is willfully ignorant of his wrongdoing does not know his action is wrong, and thus does not satisfy the general subjectivist principle Zimmerman and I hold to be the foundation of blameworthiness. Still, I allow an exception to prevent scheming wrongdoers from ‘‘gaming’’ the moral system.
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Maybe I can (uncharacteristically) resort to the kind of science-fiction examples of which some philosophers are fond to further illustrate my position. Suppose a brain surgeon wants to immunize himself from blame for committing dastardly acts. He implants an electrode that somehow induces moral amnesia at the moment he engages in wrongful conduct. His sole motivation for implanting this electrode is to create an excuse he knows he would lack otherwise. At the moment he acts, I stipulate that he is not subjectively aware his acts are wrongful. Has he identified a clever way to game the moral system and get away with his awful behavior? I doubt that even Zimmerman would pronounce this schemer to be blameless for the wrongful acts he performs. Perhaps he would resort to tracing: the surgeon’s wrongful and blameworthy act of implanting the electrode that induces moral amnesia somehow translates into blameworthiness for the subsequent dastardly acts he performs. Is my conception of willful ignorance that depends on a devious motivation for remaining ignorant a disguised version of tracing? I doubt it. I hesitate to say that this scheming scientist is fully blameworthy simply because he is culpable for his ignorance. The nature and degree of his blameworthiness seems greater than this facile description would suggest; his ignorance is deliberate and caused by a devious motivation—factors that differentiate him from the garden-variety culpably ignorant offender. Although I acknowledge the need to be clear about the rationale for attributing full blame to the willfully ignorant wrongdoer, the important substantive point is that the schemer is fully blameworthy. Zimmerman is unmoved. He asks (short of tracing) ‘‘what could possibly account’’ for my conclusion that the willfully ignorant offender is ‘‘culpable to the same degree as a witting offender would have been?’’ (22) ‘‘The answer,’’ he says, ‘‘is, of course, nothing’’ (22). He encourages me to ‘‘have the courage of [my] estimable convictions and join [him] in declaring [such persons] inculpable’’ (23). Since Zimmerman has been such a major influence on my thinking, this dismissive reaction gets my attention. Nonetheless, I hope the observations I hazard in the previous paragraph are a bit better than his bleak remark would suggest. One of the persistent worries about our view that mistake should exculpate so broadly is that ignorance should not be incentivized. I tend to believe this worry is generally overblown. But it is trenchant when offenders deliberately cultivate ignorance for the purpose of preserving an excuse they fear they would forfeit otherwise. Nearly every legal and moral philosopher of whom I am aware allows such persons to be fully blameworthy when their ignorance involves a matter of fact—as when a driver deliberately places his hands over his eyes or ears when the trunk of a car is opened to reveal a human corpse or a stash of automatic weapons. Unless this exception is unwarranted in the domain of fact, I simply propose to extend its rationale to the domain of law. I am curious whether other moral and legal philosophers will join me in creating an exception to my general views about exculpation in order not to fall prey to scheming wrongdoers who seek to game the moral system with impunity. Gideon Yaffe’s criticisms go more to the core; like the majority of moral and legal philosophers, he rejects the underlying theory of moral responsibility I (largely) share with Zimmerman. He says we agree (although I hope I use less cryptic terminology) that persons are blameworthy for wrongful behavior that ‘‘manifests problematic modes of transaction with reasons’’ (8). But we disagree, he continues, about what makes such modes of reasoning problematic. In my terminology, we concur that what I call a defect in reason-responsiveness is what makes a person responsible for his conduct. But the issue between us is in exactly what this defect consists. His own account—that the individual is insensitive to the reasons that actually exist—assures that he is acting wrongly. My point is that someone who is aware he is acting wrongly but goes ahead anyway exhibits a different
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kind of defect in reason-responsiveness than the person who does not realize this—and that this defect either is necessary for or at least increases his blameworthiness. As Yaffe accurately summarizes my position in a slogan, ‘‘for Husak fully culpable wrongdoing is objectively wrongful behavior that manifests subjectively wrongful deliberative tendencies’’ (8, italics in original). By contrast, Yaffe holds an agent to be fully culpable for wrongdoing that manifests a mode of transaction with moral reasons that deviates from accuracy, which involves either ‘‘(a) a failure to recognize the reason-giving force of a fact that does give reason, or (b) a failure to grant as much reason-giving force to a fact as it actually provides, or (c) a failure to respond in one’s choices in a way that aligns with the reason-giving force that the facts actually provide’’ (8). He stresses how ignorance of moral and non-moral facts have different effects on practical reasoning, and says this difference is crucial for attributions of moral blameworthiness. My subjectivist alternative, he charges, is inconsistent with ‘‘common sense’’ (2) and is ‘‘radically at odds with commonplace dictates of moral thought’’ (3). At the end of the day, Yaffe (mostly in correspondence) even comes to doubt that I am entitled to describe my alternative as a version of a reasonresponsiveness theory at all. Maybe Yaffe is right about the discrepancy between my own position and conventional wisdom; perhaps ‘‘common sense’’ follows Anglo-American law in differentiating the exculpatory significance of mistake of non-moral fact from that of mistake of moral fact. As I continually emphasize, however, philosophers are all over the place in their views about the conditions under which persons are fully blameworthy for their misdeeds. And so are ‘‘the folk,’’ whose intuitions I regularly solicit from the undergraduates who populate my courses at Rutgers. In my experience, whether non-philosophers accept my position or that of Yaffe (or some third alternative) depends mostly on the examples presented to them. I believe it is crucial to offer a pair of examples that are comparative: the basic question is whether the morally ignorant offender is less blameworthy than the person who commits the same action Ø while fully aware it is wrong. Moreover, I encourage respondents not to address the issue in the abstract, but to reflect on their own experience in the real-world, either as a perpetrator or as an observer to wrongdoing. Whenever an individual who is ignorant of a rule is confronted by an authority for doing something wrong, I all but guarantee she will plead mistake as a defense. And she is likely to be granted partial or complete exculpation relative to the offender who simply hoped to avoid detection. These responses, I think, are pretty close to universal. If I have presented an accurate formulation of the fundamental question to be addressed, I am confident that intuitions favor my position. In addition, notice that Yaffe’s alternative holds the ancient slave-owner to be fully culpable for wrongfully owning slaves. The ancient Hittite’s response to moral reasons is every bit as problematic as that of a contemporary slave-owner who is blind to the injustice of slavery. More to the point, the ancient Hittite’s response is every bit as problematic as that of a slave-owner from any era who recognizes the injustice of his acts but enslaves persons anyway because he prefers not to do the hard work on his plantation. Most of my undergraduates resist these results. Of course, clever students attempt to contrast the blameworthiness of the ancient and contemporary slave-owner who does not recognize the injustice of slavery by pointing out that the latter, unlike the former, has easy access to moral truths and thus should have known his conduct is wrongful. But few philosophers, and presumably not Yaffe, are likely to go down this path. No moral or legal philosopher holds that negligence (what S should have known but did not) is equal in culpability to genuine knowledge (what S actually knew). In fact, quite a few moral and legal philosophers argue that negligence is not a culpable state at all. And the ancient Hittite is
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less than negligent; why would a reasonable person in his situation should have known what he did not? To hold him to be blameworthy seems to me to be an instance of strict liability—which Yaffe sensibly opposes.6 Moreover, Yaffe appears to sympathize with the camper who discards used batteries in the garbage, not knowing whether or not they wrongfully damage the environment. But if the actual reasons tilt against his disposal, the unknowing camper would seem to be fully blameworthy—just as much so as the camper who understands perfectly well that his behavior is wrongful but goes ahead anyway, hoping he will not get caught. I strongly doubt these views embody common sense. Perhaps Yaffe bites (what seems to me to be) the bullet about these sorts of examples, or has a novel solution for how to deal with them. Any such solution, of course, would supplement or modify his foregoing criteria of culpability and (presumably) move them in the direction I favor. Admittedly, I am certain Yaffe could produce several examples (some of which are contained in my book) about which folk intuitions are quite different. Few concur with my judgment about the blamelessness of the imaginary Carlos, who does not recognize the force of moral reasons not to kill. Fortunately, few of us are likely to encounter or even to understand how any sane adult could have these bizarre beliefs— unless he has some peculiar ‘‘cultural defense’’ or is a genuine psychopath, in which case judgments about his blameworthiness again diverge sharply. In any event, Yaffe is correct to insist that the determination of who is correct and who is incorrect about these judgments ultimately depends on philosophical argument. As he further admits, however, no argument is likely to prove decisive. Yaffe is also right to point out that the inaccurate deliberator, who fails to recognize or attach the correct weight to moral reasons, is aptly criticized by an intelligible standard. After all, she gets it wrong objectively. But the fundamental question, it seems to me, is whether the standard of evaluation to which Yaffe appeals (viz., accuracy) is appropriate for impositions of moral responsibility. I certainly do not believe slave-owners (whether ancient or contemporary) represent the model of reasoning to which we should all aspire. We should aim for accuracy; it is the ideal for which each of us should strive. But how can we so strive? As many epistemologists (to whom he refers) have noted, the injunction to ‘‘get it right’’ is unhelpful; the best any of us can do in a given situation at a particular time is to recognize and respond to the strengths of the reasons we believe to exist. None of us— and certainly not the law—should demand that a rational agent must attach more or less weight to a reason than she believes that reason to possess. Maybe the consideration ‘‘don’t eat beef’’ is stronger than the consideration ‘‘eat whatever food you prefer.’’ But if I don’t believe the former reason is stronger than the latter, there is a perfectly respectable sense in which I would be acting irrationally to attach more weight to it. When we do the best we can do with the reasons we have, I am inclined to hold us to be morally blameless. Again, the inaccurate deliberator is obviously inferior by a standard of evaluation, but what is at issue is whether her inferiority by that standard manifests moral blameworthiness. How do we decide whether the inferiority of an agent’s reasoning manifests moral blameworthiness as opposed to some other defect: stupidity, lack of imagination, deficient socialization, gullibility, indoctrination, or some other shortcoming? Here Yaffe makes an intriguing suggestion. To understand what is valuable about the particular modes of reasonresponsiveness we take to make a person deserving of moral blame, we must make a commitment to what is morally important about such modes. His candidate for the answer to this question is as follows: ‘‘Say (as I suspect to be the case) that the reason that modes of transaction with reasons are morally significant is because they are a constitutive 6
See Gideon Yaffe: ‘‘Mens Rea by the Numbers,’’ Criminal Law & Philosophy (forthcoming, 2018).
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ingredient in the relations between people thanks to which people are in communities and not just in groups. They are an essential ingredient in the ties that bind’’ (10, emphasis in original). He continues: ‘‘[This] account would seem to imply that objective standards are those that matter, for someone who falsely believes, for instance, that his fun outweighs harm to others does not engage in the kind of reciprocal and mutually-respectful relations that constitute moral communities of respect and equality’’ (10). As Yaffe would admit, the foregoing suggestion needs a lot more work if it is to succeed in contrasting moral from non-moral assessment. The determination of whether beef-eaters are blameworthy would seem to have little to do with communal bonds. But at least he offers the start of a hypothesis, and I am somewhat embarrassed to admit that I have no rival candidate to propose about what is valuable about our practices of holding persons to be blameworthy. I profess to skepticism, however, about whether such a question needs to be answered. Do we really understand what is distinctive about morality or moral evaluation by attending to its social function? Must we locate the special quality of moral evaluation in a theory of intrinsic value? It is clear that we cannot live side-by-side with individuals who consistently take their own interests to outweigh competing moral considerations. If these individuals persist in harming us, we may have little recourse but to isolate them for our own protection. But why think that this isolation must convey a judgment of moral blameworthiness? The ancient slave-owning Hittite can hardly be said to participate in ‘‘relations that constitute moral communities of respect and equality,’’ but his blameworthiness is precisely what is at issue and should not be presupposed. Yaffe raises a few additional issues I believe to merit a brief comment. He purports to find ‘‘a puzzle’’ (3) in my position that persons who do not recognize the wrongfulness of their deeds are ‘‘owed a reward’’ or are ‘‘owed a break’’ (2). I believe that this way of conceptualizing my position—or any position about blameworthiness—has helped to lead us astray. Admittedly, nearly all of the commentary about the phenomenon of ignorance of law adopts this perspective and asks whether and under what conditions such a mistake should mitigate or reduce blameworthiness. But it can be more perspicuous, I submit, to inquire whether and under what conditions knowledge of wrongdoing should aggravate or increase blameworthiness. In other words, instead of asking why ignorance might take wrongdoers off the hook, we might investigate why knowledge might place them on the hook. Formally, these inquiries are equivalent. But much of the animating insight of my project consists in trying to discover why persons who know full well their conduct is wrongful but go ahead anyway seem so much more blameworthy than those who are ignorant that their conduct is wrongful at all. And they are more blameworthy, are they not? Take any individual who satisfies any or all of Yaffe’s disjunctive criteria for culpability. Her deliberations and ensuing behavior are wildly inaccurate according to objective moral standards. Now add an additional fact about her: she is aware her actions do not conform to what she realizes to be morally right. Expressed colloquially, she knows better than to have done what she did. Again, the camper who discards a battery she knows causes a substantial amount of harm to the environment but hopes not to be detected is worse than her partner who does not even suspect that batteries can cause substantial environmental harm. We judge her more negatively (according to the dimension I believe to matter morally) when we learn she is willing to do something she understands to be wrong. I again emphasize that the fundamental issue is comparative. I see absolutely nothing in Yaffe’s criteria that would enable us to contrast the blameworthiness of these two wrongdoers. I am happy to borrow some of Yaffe’s (somewhat cumbersome) terminology to express this point. The knowing wrongdoer ‘‘manifests a more problematic mode of transaction with reasons’’ than that of
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the unknowing wrongdoer. Third parties would and should react to these problematic modes of reasoning very differently: we would tend to educate the latter but blame the former. Since Yaffe uses a homey analogy (that of the cat who does not chase a mouse) to illustrate his challenge to my thesis that treats mistake of law and fact symmetrically, let me propose one of my own. A father observes his son Billy taking a toy from his sibling Tammy, who begins to cry. The father calmly intervenes. ‘‘Don’t you know it is wrong to take toys from your sister? How would you like it if Tammy did that to you?’’ Billy sheepishly desists and all seems well. The next day, however, Billy takes the toy again. The father gives the same speech, expressing more irritation. Billy now responds: ‘‘I know it’s wrong to take Tammy’s toys. It makes her cry. That’s why I do it!’’ In the latter case, Billy manifests a different defect in reasoning, a defect that is a much better candidate for moral blameworthiness. To be sure, my analogy has limitations. Children, I concede, lack the capacities for responsibility. But so do cats. Even if my comparative point in the foregoing paragraph is correct and the blameworthiness of knowing wrongdoers is greater than that of unknowing wrongdoers, it does not follow that the latter is not blameworthy at all. It is true that my preferred theory of responsibility would exempt her from blame altogether. In Ignorance of Law, however, I admitted that quality of will theories (an instance of which I take Yaffe to hold) would not support this radical conclusion. I admit to having no decisive objection to this class of theories. But the most plausible version of a quality of will theory would still recognize the contrast on which I insist; it would differentiate between the blameworthiness of persons who are ignorant of their wrongdoing and that of persons who are fully cognizant of it. In my judgment, a more negative inference is clearly warranted about the quality of a person’s will when we learn that she knew better than to act as she did. A basic issue, then, is not whether, but how much of a differentiation in blame is deserved by the knowing relative to the unknowing offender. But I simply cannot accept that their blameworthiness is equal, either on the basis of ‘‘common sense’’ or philosophical argument. Thus I hold that my account has to be preferable to Yaffe’s if the criterion of success is its ability to account for intuitions that nearly everyone (and, I suspect, Yaffe himself) wants to acknowledge: that unsuspecting wrongdoers like the Hittite are less blameworthy (and perhaps not blameworthy at all) relative to the slave-owner who knows slavery is wrong but owns slaves anyway. And, contrary to Yaffe’s allegation, I contend that the defect exhibited by the blameworthy agent is aptly described as a defect in reason-responsiveness. The more important point, however, is not what this account should be called, but whether it captures a better normative position on the kind of blameworthiness that renders wrongdoers eligible for full moral and legal responsibility. I would be delighted if Ignorance of Law had an effect similar to Overcriminalization. I am grateful to Zimmerman and Yaffe for their constructive suggestions. I hope this brief exchange leads other capable legal philosophers to think carefully about whether and to what extent a mistake about wrongdoing should preclude or reduce the blameworthiness of the offender.
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