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Published online by Cambridge University Press: 20 July 2015
There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures.
Many thanks to colleagues and children who offered friendly and helpful comments and suggestions, including John Kleinig, Hal Lewis, Stephen Morse, Jack Sammons, and Kate and Meredith Blumoff. I am grateful for the financial and collegial support of Mercer Law School and Interim Dean Michael Sabbath, respectively.
1. Grier, Peter & Chinni, Dante, “For Survivors, Execution Isn’t The End: ‘Closure’ Proves Elusive, Even After a Killer’s Death” The Christian Science Monitor (11 June 2001)Google Scholar, available at http://search.csmonitor.com/durable/2001/06/11/p1s2.htm
2. Smith, Adam, The Theory of Moral Sentiments (Amherst, NY: Prometheus Books, 2000) at 109 Google Scholar [hereinafter Smith, TMS].
3. Gen. 3:15-24. The conventional wisdom holds that there were at least two authors of the primeval stories, including “P,” the Priestly account which includes the first story of creation and was written circa 600 b.c.e. and “J,” the author who identifies God as revealed to Moses and wrote the second creation story several hundred years earlier. See, e.g., Friedman, Richard Elliott, Who Wrote the Bible?, 2d ed. (New York: HarperCollins, 1997)Google Scholar. Thus, in the pre-Creation 1 version, retribution is introduced in the chapter immediately following the creation of man and woman from dirt. Most commentators subscribe to the idea that the original Yahwistic J account begins at Gen. 2:4b and concludes at 11:9. See Fox, Everett, The Five Books of Moses (New York: Schocken Books, 1995)Google Scholar.
4. I’m thinking, of course, of Cain’s expulsion after slaying Abel. Obviously I could have added the Noahide Holocaust and the destruction of Sodom and Gomorrah. Gen 8:24-14; Gen.19:24-29, respectively. I have written about the former in “Genesis, Gender and Community” (1999) 9 S. Cal. Rev. L & Women’s Stud. 5. The short of Cain’s story is that, without apparent solicitation, Adam and Eve’s firstborn, Cain, offers God fruit—a gesture that embodies the first act of monotheistic worship in the history. Abel then joins the offering, bringing a choice yearling lamb. God “paid no heed” to Cain but attends to Abel and his offering. Cain, following God’s Edenic command to tend the soil, is distressed by the snub. Noticing Cain’s distressed appearance, God cryptically warns him to “do right” because “sin couches at the door,” and sin will try to master him. When Cain fails to heed the warning, God expels him from community and sends him “Nod”—Hebrew for “turmoil”—east of Eden, where he establishes a city. Gen. 4:1-12. Here retribution includes expulsion and the “mark” of his infamy (and God’s protection).
5. E.g., Gen.1:26-27. I do not mean to assign ongoing normative admiration to the retributive stories that begin Hebrew Scriptures. I cite them only to make the point that these ex Pressions have been a part of our shared theological narrative since its inception and, for that reason, we cannot show surprise that they have continued. I tend to agree with Hume that God’s reaction to the weak creatures we are that are we is overbearing and unjustifiable. In his essay, “Of the Immortality of the Soul,” Hume writes: “Punishment according to our conception, should bear some proportion to the offence. Why then eternal punishment for the temporary offences of so frail a creature as man?” In Copley, Stephen & Edgar, Andrew, eds., David Hume, Selected Essays (Oxford: Oxford University Press, 1996) 324 at 327.Google Scholar
6. This is, of course, a strong Humean position. See, e.g., Hume, David, Enquiries Concerning Human Understanding and Concerning the Principles of Morals, 3rd ed. by Selby-Bigge, L. A. & Nidditch, P. H. (Oxford: Clarendon Press, 1975) at 80–96.CrossRefGoogle Scholar
7. Reported by Grier & Chinni, supra note 1.
8. “Many Grieving Families Seek Comfort and Closure in the Execution of the Murderer. Do They Find It?” U.S. News & World Report (17June1996) at http://www.prodeathpenalty.com/vengeance.htm
9. Reported by Tan, Shannon, “A Hymn on His Lips, Veteran is Executed; Gulf soldier ignores his victim’s relatives as they watch him die” The Indianapolis Star (19 March 2003)Google Scholar at [email protected]. http://www.clarkprosecutor.org/html/death/US/jones837.htm
10. Reported by Grier & Chinni, supra note 1.
11. Kant, Immanuel, “Public Right” in The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. Hastie, W. (Clifton, NJ and Edinburgh: Augustus M. Kelley, 1974 ed.) 161 at 1965Google Scholar [hereinafter “Kant, , Public Right].CrossRefGoogle Scholar
12. Smith, , TMS, supra note 2 at 135.Google Scholar
13. The naturalist scene I have in mind is captured chillingly by London, Jack, White Fang (New York: Signet Classics, 1991) at 41–46 Google Scholar; the sense of global innate-ness comes first from Hume and then (mostly) from the work of Strawson, Peter, including “Freedom and Resentment” (1962 Proc. Brit. Academy Google Scholar) reprinted by Watson, Gary, ed., in Free Will (Oxford: Oxford University Press, 1982) at 59 Google Scholar, which is itself a combination of Humean epistemological skepticism and Smith’s account of the irregularity of the sentiments. Strawson acknowledges the debt to Hume in ibid. at 79 n.7; the reliance on Smith is implicit in Strawson’s discussion of “actions which confer benefits or inflict injuries” as invoking emotional reactions “over and above any conferred or inflicted by the mere manifestation of attitude and intention themselves.” Ibid. at 63. See infra text accompanying notes. author: please provide
14. See Kadish, Sanford H., “Forward: The Criminal Law and the Luck of the Draw” (1994) 84 J. Crim. L & Criminology 679 Google Scholar (arguing that the harm doctrine, whereby punishment varies based upon the chance that harm does or does not occur, is rationally indefensible); Moore, Michael S., “The Metaphysics of Causal Intervention” (2000) 88 Cal. L. Rev. 827Google Scholar (arguing that any desert-based attempt to justify legal causation is bound to fail).
15. Certainly aggravated rape and predatory sexual crimes against minors are also close to this end of the gauge. See, e.g., Model Penal Code §213.1 (1) (d) (i) (grading rape accompanied by “serious bodily injury” a first degree felony). Further references to the Model Penal Code will be in the form “M.P.C.” followed by the applicable section.
16. The “subjectivist” approach measures culpability based solely on the actor’s subjective intent. See, e.g., Dressler, Joshua, Understanding Criminal Law 3rd ed. (New York: Lexis Law Publishers Matthew Bender & Co., 2001) at 378-80Google Scholar (distinguishing between “subjectivist” and “objectivist” approaches to attempts). author: checked out on web, found diff. publisher for that edition.
17. See, e.g., Alexander, Larry, “Crime and Culpability” (1994) 5 J. Contemp. L. Issues 1 at 4Google Scholar. This point obtains whether one pursues a utilitarian or deontological agenda. Intent can be the basis for symmetrical punishment regardless of the moral theory one holds.
18. See, e.g., Bentham, Jeremy, An Introduction to the Principles of “Morals and Legislation, ed. by Burns, J. H. & Hart, H.L.A. (New York: Methuen & Co, 1982) at 158.Google Scholar This description assumes that due process is honorably satisfied, see Rawls, John, “Two Concepts of Rules” (1955) 644 Phil. Rev. 3 at 9Google Scholar (amending the utility principle to make clear that it’s not solely hedonic, thus providing utilitarian theory with a rationale that prevents punishing the innocent consistent with traditional understanding of due process).
19. See M. P. C. §5.01 (1) (1985).
20. Kant, , Public Right, supra note 11 at 197, 198, respectivelyGoogle Scholar.
21. I have developed this theme in the specific context of attempts in “A Jurisprudence for Punishing Attempts Asymmetrically” (forthcoming, 2003) 6 Buff. Crim. L. Rev. first page? [hereinafter Blumoff “Punishing Attempts”]. update?
22. Sabini, John & Silver, Maury, “Emotions, Responsibility, and Character” in Schoeman, Ferdinand, ed., Responsibility, Character, and the Emotions: New Essays in Moral Psychology (Cambridge: Cambridge University Press, 1987) 165 at 164-75Google Scholar present an Aristotelian perspective on the psychology of emotions and aesthetics in the context of attributing moral responsibility. Interestingly, although they rightly reject as too narrow Kant’s moral psychology, they omit any discussion of Hume, Wittgenstein and Strawson.
23. The retribution I am thinking of here is not the easily articulated version that justifies punishment “because and only because offenders deserves it,” and thereafter dismisses most other definitions as extravagant and quantitatively directed. Michael|Moore, “The Moral Worth of Retribution” in Responsibility, Character, and the Emotions, ibid. at 179-219. First this conception is not only overly narrow; it distinguishes between general justifying aims of punishment—a question “any rule-structured practice or institution” must answer—and “rules of fair procedure that govern its activities.” See Hart, H. L. A., “Prolegomenon to the Principles of Punishment” in Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968) 1 at 9-13Google Scholar. Kant one of the fathers of contemporary retributivism, made no such distinction: the need to execute the murderer is a categorical imperative, an instantiation of perfect justice. Kant, Immanuel, “General Introduction to the Metaphysics of Morals” in The Philosophy of Law, supra note 11 at 195–96 Google Scholar. Second, the position he supports—that punishment reflects desert—is almost vacuous without a theory of formal justice. Moreover, it is at precisely this point that the quantification issues breakdown: There is no theory of just deserts that withstands critical analysis. See Blumoff, Theodore Y. “Justifying Punishment” (2001) XIV Can. J. L. & Juris. 161 at 182–90 Google Scholar. I see no way to purge the retributive emotion of its vengeful nature, although I agree with Moore that it need not be pathological.
24. See, e.g., Dressler, supra note 16 at 378; LaFave, Wayne R. & Scott, Austin Jr., Criminal Law 2d ed. (St. Paul, MN: West Publishing, 1986) at 486–87.Google Scholar
25. Blackstone, William, IV Commentaries on the Laws of England: Of Public Wrongs (Chicago: University of Chicago Press, 1979, 1769 facsimile edition) at 15 Google Scholar; Smith, , TMS, supra note 2 at 146 (emphasis added)Google Scholar; Stephen, James FitzJames, 3 A History of Criminal Law (London: Butterworth & Co., 1883) (emphasis added) at 311 Google Scholar. For a thoroughly intent based view that dismisses Stephen and the unequal punishment regime see Parker, Richard, “Blame, Punishment and the Role of Result” (1984) 21 Am. Phil. Q. 269 at 274–75.Google Scholar
26. See, e.g., Bayles, Michael D., “Punishment for Attempts” (1982) 8 Soc. Theory & Practice 19 at 23Google Scholar (defining first order harms to include injury to one’s interest in life, liberty and property, and second order interests to include security from fear of losing a first-order interest).
27. Restatement (Second) of Torts, §§22-34 (1965).
28. At least one English court recognized second order interests as early as the fourteenth century. I de S et Ux. V. W De S, Y. B. Lib., folio 99, placitum 60 (at the Assizes 1348).
29. See Perkins, Rollin M. & Boyce, Ronald N., Criminal Law, 3rd ed. (Minneola, NY: The Foundation Press, 1982) at 159-60 & nn. 63-66Google Scholar.
30. See ibid. at 163.
31. See, e.g., ibid. at 612.
32. In general, the drafters imposed criminal liability on the defendant if the circumstances were “as he believes them to be” or with the belief that the conduct would result in the harm proposed without further conduct. M. P. C. §5.01 (1). Moreover, the Code proposes that the wrongdoer be punished as if he had completed the attempted crime, unless completion is “inherently unlikely to result … in the commission of a crime.” (Ibid. §5.05(2)).
33. $$Cf. ibidM. P. C. §5.05(2) cmt. at 490.
34. See, e.g., Becker, Lawrence C., “Criminal Attempt and the Theory of the Law of Crimes” (1974) 3 Phil. & Pub. Aff 262Google Scholar; Feinberg, Joel, “Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments Against It” (1995) 37 Ariz. L. Rev. 117 Google Scholar; Gilbert, James J., “The Fortuity of Consequences” (1993) 4 Crim. L. Forum 1 Google Scholar; Kadish, Sanford, supra note 14; (1994) 84 J. Crim. L & Criminology 679 Google Scholar; Shachar, Yoram, “The Fortuitous Gap in Law and Morality” (1987) 6 Crim. Just. Ethics 1236 Google Scholar; Sverdlik, Steven, ‘Crime and Moral Luck” (1988) 25 Am. Phil. Q. 79.Google Scholar
35. Smith, , TMS, supra note 2 at 133 Google Scholar.
36. Ibid.
37. Ibid. at 134.
38. An “analytic” statement or judgment is one in which the predicate is contained in the subject. For example, Kant argues persuasively that to will an end—the subject—is to will the means to the end—the predicate. Another way to describe this relationship is to say that when you will an effect you also will a cause because no effect comes about without a cause. Our understanding of criminal intention follows this tautological pattern. Kant, Immanuel Groundwork of the Metaphysics of Morals, trans. Gregor, Mary (Cambridge: Cambridge University Press, 1997) at 28.Google Scholar
39. Smith, , TMS, supra note 2 at 134.Google Scholar
40. In fact Smith’s consequentialism in this instance operates indirectly; that is, he embraces a positive form of retribution, understanding that it would have a regulatory effect on deterrent conduct. See Russell, Paul, “Hume on Responsibility and Punishment” (1990) 20 Can. J. Phil. 539 at 550–52 Google Scholar. On the various modes of retribution, See Mackie, J. L., “Morality and the Retributive Emotions” (1982) 1 Crim. Just. Ethics 3 at 4.Google Scholar
41. Smith, , TMS, supra note 2 at 139.Google Scholar
42. Hume’s great and lasting achievement was to make us aware of the indefeasible nature of our anthropological natures, and so he forces us to respect certain limits with which some Aristotelians and Kantians hope to do away. Insofar as we (surely) are limited by our biological natures, we must debate the extent to which our understanding of “reason” and certain of the “calm” passions is premised on differences in our perceptual experiences and capacities, together with our variably distributed verbal capacities. Hume’s vision of reason (as an instrument that not only cannot but should not master our passions) is set out in Hume, David, A Treatise of Human Nature ed. by Selby-Bigge, L. A. & Nidditch, P. H., 2nd ed. (Oxford Clarendon Press, 1978) at 415 Google Scholar (contending famously that “[r]eason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.”). There is obviously some ambiguity in this observation, because it’s not entirely clear why Hume would say that reason ought to be a servant if it already is. For an interpretation of Hume’s normative claim that stresses the desirable features of Hume’s conception of the passions that conduce to a humane, compassionate understanding of leadership (some features of which we might call “practical reason”), see Baier, Annette, “Master Passions” in Rorty, Amélie O., ed., Explaining Emotions (Berkeley: University of California Press, 1980) at 403.Google Scholar Hume may have harbored a natural and healthy fear of unbridled, religiously-inspired views on the authority of rationality. See, e.g, Treatise, (ibidsupra note 42 at 468-69) (dismissing the claims of the rational intutitionists that morality is discoverable by reason alone). For a discussion of Hume’s descriptive claim that reason is limited to (a) discerning patterns of events that imply a causal relationship and (b) figuring out the means to our desired ends, see generally Rawls, John, Lectures on the History of Moral Philosophy, ed. by Herman, Barbara (Cambridge: Harvard University Press, 2000) at 21–27 Google Scholar, 69-83 (examining, respectively, Hume’s theory of the passions and the role of reason, and his critique of the rational intuitionists).
43. Smith, , TMS, supra note 2 at 140 Google Scholar. The quotations from TMS following in the text are at pages 145, 146, and 146 respectively.
44. Ibid. at 145-46.
45. Ibid. at 152-53 (emphasis added).
46. Even the distinction between first and second order harms begs the deeper question of what constitutes “harm.” For now, I will borrow from Hampton, Jean, whose instincts about and grace in presenting such matters is worth our attention. In “Correcting Harms Versus Righting Wrongs: The Goals of Retribution” (1992) 39 U.C.L.A. L. Rev. 1659 at 1662 Google Scholar, she defined “harm” or “loss” as a “disruption of or interference in a person’s well being, including damage to a person’s body, psychological state, capacities to function, life plans, or resources over which we take this person to have an entitlement.” Clearly, some of the terms in that definition, not least the last clause, are subject to a significant amount of debate, and yet the tenor of her presentation is itself a positive, inclusive declaration with which I associate.
47. Smith, , TMS, supra note 2 at 153 Google Scholar. Here it is worth contrasting Smith with Kant: “Even if, by a special disfavor of fortune or by the niggardly provision of a step-motherly “nature, this will should wholly lack the capacity to carry out its purposes, … then, like a jewel, it would still shine by itself, as something that has its full worth in itself….” Kant Groundwork supra note 38 at 8. For Kant luck has nothing to do with our intentions or deserved punishment; both are governed by the Categorical Imperative. Compare Kant, “Public Right,” supra note 11 at 195 (“The Penal Law is a Categorical Imperative”Google Scholar).
48. For a history of preventive detention statutes, See Toborg Assoc, Inc., “Public Danger as a Factor in Pretrial Release,” reprinted in Committee on Judiciary’s Report on Bail Reform Act of 1984, H.R. Rep. No. 98-1121, app. A, at 90 (cited in Robinson, Paul H., “Criminal Law Scholarship: Three Illusions” (2001) 2 Theoretical Inquiries L. 287 at 317 n. 85)Google Scholar.
49. Richards, Norvin, “Luck and Desert” (1986) 95 Mind 198 at 202 Google Scholar (ascribing only epistemological importance to luck in the consequences of one’s actions, and suggesting that a more permanent part of one’s make-up conduces to genuine responsibility-entailing choices). See generally Brandt, Richard B., “A Utilitarian Theory of Excuses” (1969) 78 Phil. Rev. 337 at 354 Google Scholar (arguing that “an objectively wrong action (or an action in some way out of order) is excused [only] if it does not manifest some defect of character”).
50. Richards, ibid. at 199 (observing that “what a person deserves for a particular deed can differ from the criticism we are actually entitled to level against him … [because] our epistemic position regarding matters which determine an agent’s deserts is so imperfect that (for example) someone can have acted much more culpably than anyone has grounds to realize”).
51. See supra note 42.
52. “Situation” is placed in cautionary quotes to indicate the deep issues embedded in that apparently innocuous term. I am addressing this very issue in a manuscript entitled “Blaming Angry Men: The Faces of Evil and the Limits of Contemporary Moral Philosophy.”
53. Smith, , TMS, supra note 2 at 154.Google Scholar
54. Ibid. at 134.
55. Thomson, Judith Jarvis, “Morality and Bad Luck” in Statman, Daniel, ed., Moral Luck (Albany, NY: State University of New York Press, 1993) at 195.Google Scholar
56. Ibid. at 204.
57. Compare your own reaction to a fall that produces a broken bone and the same fall (more or less) that produces only an abrasion. See ibid.
58. See Nagel, Thomas, “Moral Luck” in Mortal Questions (Cambridge: Cambridge University Press, 1979) at 24 Google Scholar (originally published in (1976) 50 Proc. Arist. Soc’y (Supp.); Williams, Bernard, “Moral Luck” in Moral Luck supra note 55 at 35 (originally published in (1976) 50 Proc. Arist. Soc’y (Supp.).)Google Scholar
59. Thomson, supra note 55 at 204.
60. I am convinced that Strawson’s basic insight—about the epistemological foundation for and reality of the reactive attitudes—pushes forward a real view of human nature that goes back to Hume and Smith (if not Hillel), and underscores the need to remain mindful of who we are in fact. As I note subsequently, I am not impervious to some of the difficulties Strawson’s insights create.
61. See LeDoux, Joseph, Synaptic Self: Howe Our Brains Become Who We Are (New York: Viking, 2002) at 206 Google Scholar-10. Here I want to emphasize that I am not using the terms “pain” or “pleasure” in an (exclusively) instrumental sense. Utilitarians profess concern only for the consequences of an action or rule: Does it maximize aggregate benefit or minimize aggregate pain (or tend to do either)? They are concerned with motivation, but only if the motive itself moves an individual or community toward maximizing the tendency to produce pleasure or minimize pain. Hume the deontologist views morality as entailing duties and regards motivation as primary if not exclusive. Although Hume famously argued that morality has its foundation in human nature, he had “not intended to condemn morality never to rise above its starting point.” Wiggins, David, “Categorical Requirements: Kant and Hume on the Idea of Duty” (1991) 745 The Monist 83 at 92.Google Scholar
62. This is not a plea to give up on the colloquial (folk psychological) ideal that our reach should exceed our grasp. Those ideals are almost always helpful, on balance. It is only to say that both the reach and the grasp require consideration; radical subjectivism in criminal jurisprudence is, in my opinion, not consistent with either our folk wisdom, all things considered, or the revolution that is taking place in the biological and physical sciences. In a recent novel by the British writer Lodge, David, Thinks …! (New York: Secker & Warburg, 2001)Google Scholar, one of his protagonists, a cognitive scientist named Ralph Messenger, describes folk psychology: “It means received wisdom and commonsense assumptions about human behaviour and motivation, what makes people tick. It works fine for ordinary social life—we couldn’t get along without it. And it works fine for fiction …. [B]ut it’s not objective enough to qualify as science.” (Ibid. at 43). Although what qualifies as “objective” is something the protagonist and I would disagree about, the definition is sufficiently close for purposes of this work.
63. Much of the western world has suspended the practice of capital punishment. The European Union, for example, makes abolition of the death penalty a condition for membership. On the EU requirement, See www.europa.eu.int/comm/external_relations/human_rights/adp/. This fact alone suggests that cultural practices may be shaped despite the natural desire some feel to kill the killer. The dynamics that permit such suspension are hard to nail down and far beyond the scope of this essay.
64. I want to hedge here a bit because I am not unconvinced that Kant’s position cannot be grounded in naturalist moral psychology under some description; that is to say, that his brand of intuitionism was somehow unnatural or a-natural. After all, Kant was not a Martian; he was a human with roughly the same genomic structure as the rest of us. To claim otherwise is to suggest that he possessed some extraterrestrial genotypes, which does not seem likely. Suffice is to say that his moral constructivism professed to be “carefully cleansed of everything that may be only empirical,” Kant, Groundwork, supra note 38 at 2, I am unconvinced that he either has or could have achieved this goal. At the very least his notion of intuitionism entails circularity precisely because it attempts to justify itself and thus insulates itself from external justification. See Comment, “Metaethics and the Overlapping Consensus” (1993) 54 Ohio St. U. L. J. 1139 at 1147 (Houser, Susan K.).Google Scholar
65. Smith, , TMS, supra note 2 at 97 (emphasis added)Google Scholar.
66. Hume, , Treatise, supra note 42 at 591 (emphasis added)Google Scholar.
67. A stronger interpretation of the phrase would hold that the naturalist bases of these emotions demands a muscular form of retribution, i.e., capital punishment. Smith, , TMS, supra note 2 at 96 Google Scholar; see Russell, , supra note 40 at 559–60.Google Scholar
68. Hume, , An Enquiries Concerning the Principles of Morals, supra note 6 at 187 (emphasis in the original).Google Scholar
69. Wittgenstein, Ludwig, Lectures and Conversations on Aesthetics, Psychology and Religious Belief ed. by Barnett, Cyril (Berkeley: University of California Press, 1966) at 1–40.Google Scholar
70. I Oxford English Dictionary 206 (Oxford: Oxford University Press, 1985) (offering the quote in text as the first definition).
71. See Wittgenstein, , supra note 69 at 2–3 Google Scholar. The definition of “interjection” in the text is from the VII OED, ibid OED supra note 69 at 1107
72. Wittgenstein, , ibidsupra note 68 at 13, 14–15.Google Scholar
73. I’m clearly not saying that the relative depths of emotion in different contexts don’t have different impacts on the lives involved. The similarity I’m am trying to explain is in the emotional need to set the picture right that pervades all aesthetic contexts.
74. On the categorical error involved in distinguishing between emotions and reasoning, see Damasio, Antonio R., Descartes’ Error: Emotion, Reason, and the Human Brain (New York: HarperCollins, 1994)Google Scholar; Frank, Robert H., Passions within Reason: The Strategic Role of the Emotions (New York: W.W. Norton & Co., 1988) (discussing the omissions contained in the two main accounts of rational behavior) at 67–70.Google Scholar
75. His understanding of the “will” mirrors this deep and profound caution. Wittgenstein apparently remained undecided about the relationship of the will to the world, noting (concurrently) that “we need a foothold for the will in the world,” nonetheless reaching this conclusion because the will is “an attitude of the subject to the world,” that is to say, that the agent is “the willing subject.” His ambiguity is apparent in his reserve. Wittgenstein, Ludwig, Notebooks, 1914-1916 ed. by Wright, G. H. von & Anscombe, G. E. M., and trans. by Anscombe, G. E. M., 2d ed. (Chicago, IL: University of Chicago Press, 1979) at 87.Google Scholar How this foothold is instantiated, of course, is the difficult question of which the issues this work raises are a tiny part. A valuable discussion of this issue appears in Winch, Peter, “Trying and Attempting” (1971) 45 Proc. Arist. Soc’y. 209 at 215–16 (Supp.)Google Scholar
76. My use of “probably” acknowledges the possibility that our aesthetic capacities are precisely what produce analogies, but I don’t know enough to say this for sure.
77. “Intentionality” used here refers broadly to issues concerning the actor’s internal mental life as it interacts with the rest of the world—his or her desires, beliefs, hopes, wishes, thoughts about the external world generally. See, e.g., Searle, John R., Mind, Language and Society: Philosophy in the Real World (New York: Basic Books, 1998)Google Scholar, esp. ch.4. For a detailed discussion of the characteristics that compose intentionality, see Dretske, Fred, Naturalizing the Mind (Cambridge, MA: MIT Press, 1995) at 28–34 Google Scholar (discussing the power of misrepresentation, “aboutness,” “aspectual shape,” and “directedness”).
78. See, e.g., Ronald de|Sousa, “The Rationality of Emotions” in Explaining Emotions, supra note 42 at 137 (“Emotions are determinate patterns of salience among objects of attention, lines of inquiry, and inferential strategies.”).
79. Wittgenstein, , supra note 69 at 54–55 Google Scholar. For a valuable discussion of Wittgenstein’s ideas in this regard, see Putnam, Hilary, Renewing Philosophy (Cambridge, MA: Harvard University Press, 1992) at ch.7.Google Scholar
80. For a useful and productive analogy, recall the response of Michael Dukakis in the1988 U.S. presidential debates to the question of how he would react to the rape and murder of his wife. He replied with a (self-destructive) rational coolness that doomed him! See, e.g., “Involving Citizens Between Elections” (describing Dukakis’ response as “robotic”), available on line at www.annenberg.nwu.edu/pubs/debate/debate07.htm; and Comments of Doris Kearns Goodwin on The News Hours (4 Oct. 1996) at www.pbs.org/newshour/bb/election/october96
81. On the nature of the physical affect that follows such experiences, see, e.g., Damasio, , supra note 74 at 166–67.Google Scholar
82. It is true that some attempts have profound consequences for social instability. Becker, Lawrence C., “Criminal Attempt and the Theory of the Law of Crimes” (1974) 3 Phil. & Pub. Aff 262 at 282 Google Scholar. But this is true for only some attempts. Routine attempts, because they do not impinge primary interests, do not destroy the aesthetic sensibility I am outlining. See Bayles, , supra note 26 at 21.Google Scholar
83. Professor Chapman makes a similar point in the context of distinguishing between first and second order risks:
It is incoherent to attach legal significance, as the criminal law prosecution does, to the risk or possibility of harmful intrusion … without attaching some significance to that risk when it actually materializes. After all, the risk in question is the risk of something in particular; it is not just risk in the abstract that is the focus of concern …. The equal punishment of attempts with completed crimes would signify attending to the potential for harm while ignoring what it is a potential of but an empty potential is no potential at all.
Chapman, Bruce, “Agency and Contingency: The Case of Criminal Attempts” (1988) 38 U.T.L.J. 355 at 367.Google Scholar
84. See, e. g., Frank, supra note 74 at 90 (noting that “natural selection is not free to cobble together just any desired combination of attributes …. and the solutions we see in nature, while sometimes elegant, are more often clumsier than a purposeful engineer [or philosopher] would [arrange]”).
85. It is surely predictable that someone will attack this observation as instantiating the “naturalistic fallacy,” according to which one cannot tease the prescriptive ought out of the descriptive is. See, e.g., Ashworth, Andrew, “Criminal Attempts and the Role of Resulting Harm under the Code, and in the Common Law” (1988) 19 Rutgers L. J. 725 at 748 Google Scholar (asserting that “[conceptions may be popular but it does not follow that the law should be bound by them, since they may by misconceptions”); Burkhardt, Björn, “Is There a Rationale Justification for Punishing an Accomplished Crime More Severely Than an Attempted Crime?” (1986) B.Y.U.L. Rev. 553 at 563–64 Google Scholar (rejecting the notion that legislators should give in to a “natural sense of justice,” i.e. lesser penalties for attempts, because to do so is to fall victim to the naturalistic fallacy). Suffice it to say for now that (a) space prohibits a lengthy rebuttal to this issue, and (b) the reality of this “fallacy” is itself debatable. On the existence the fallacy, see Moore, G. E., Principia Ethica (Cambridge: Cambridge University Press, 1966)Google Scholar (“If I am asked, ‘What is good?’ my answer is that good is good, and that is the end of the matter. Or if I am asked, ‘How is good to be defined?’ my answer is that it cannot be defined, and that is all I have to say about it.”) at 6. On whether the fallacy exists, see Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985) at 121–22.Google Scholar
I think the more apt objection is that the view I both critique and suggest has a theological dimension. That objection is valid as a constraint but not devastating as a source of normativity. I have addressed this issue on several occasions, including “An Essay on Liberalism and Public Theology” (Winter 1999/2000) 14 J. Law & Rel. 229. I am addressing it presently in a nearly completed manuscript entitled “Rationality, Neuroscience and Law.” author: still true?
86. Strawson, , “Freedom and Resentment” supra note 13Google Scholar. See Russell, Paul, “Strawson’s Way of Naturalizing Responsibility” (1992) 102 Ethics 287 at 287CrossRefGoogle Scholar (“[A]ccording to Strawson responsibility is a ‘given’ of human life and society—something which we are inescapably committed to.”). Let me state that while I find much in Strawson’s position that is intuitively plausible and normatively desirable, I do not believe, however, that he (a) defeats the claims of skeptics who decry the force of determinism, or (b) necessarily puts all of the reactive attitudes beyond our control. For an elaboration of (a), see Russell, ibid. and Nagel, Thomas, The View From Nowhere (Oxford: Oxford University Press, 1986) at 124-26Google Scholar. On (b), See Watson, Gary, “Responsibility and the Limits of Evil” in Responsibility, Character, and the Emotions, supra note 22, 256 at 284-86Google Scholar.
87. Strawson, supra note 13 at 80.
88. Ibid. at 67 and 71. Interestingly, Strawson created exemptions that might apply to some of the most heinous criminals whose misdeeds invite the need for closure that the desire for retribution signals. E.g., ibid. Strawson, supra note 13 at 66 (discussing the adoption of “the objective attitude” toward a person who may become “the object of social policy” or of “treatment” or who may need to be “managed or handled or cured or trained.” (I address this issue in a work-in-progress titled “Blaming Angry Men,” supra note 52). Strawson, however, had little to say about pun-ishment itself, other than saying that “punishment is all of a piece with this whole range of attitudes.” Strawson, (supra note 13 at 77). Some have criticized this view as undermining the normative value of compassion as a way of ordering our moral order. See Russell, , supra note 40 at author: 297?? - this article starts at 539 and n. 11 Google Scholar; Watson, , supra note 86 at 258.Google Scholar
89. Wittgenstein, supra note 69 at 55.
90. Dressler, Joshua, “Hating Criminals: How Can Something That Feels So Good Be Wrong?” (1990) 88 Google Scholar Mich. L. Rev. 1448 at 14521 (reviewing Murphy, Jeffrie G. & Hampton, Jean, Forgiveness and Mercy (Cambridge: Cambridge University Press, 19898).Google Scholar
91. See, e.g., Goleman, Daniel, Emotional Intelligence (New York: Bantam Books, 1995) at 228 Google Scholar-36 these pages don’t deal with PostTSD; LeDoux, , supra note 61 at 294–95.Google Scholar
92. Bedau, Hugo Adam, “The Minimal Invasion Argument Against the Death Penalty” (2002) 22 Crim. Just. Ethics, at 3, at 6.Google Scholar
93. See III OED, supra note 70 at 226 (defining “clamour” as a “vehement ex Pression of feeling … (often including noisy manifestation) and associated with the cries of animals”).
94. Oldenquist, Andrew, “An Explanation of Retribution” (1988) 85 J. Phil. 464 at 473 Google Scholar (arguing that retribution fills a moral need in a community, so long as conditions of fair process exist).
95. See, e.g., Kleinig, John, “Symposium: The Death Penalty: Foreword” (2002) 212 Crim. Just. Ethics 3.Google Scholar
96. “Statement of Murder Victims’ Families for Reconciliation on the Execution of Timothy McVeigh” at http://www.mvfr.org/statement.html not at this site
97. Kavanaugh, Lee Hill, “,Viewing Execution Helps One Family Ease Burden” Kansas City Star (30 April 2001) at http://www.kcstar.com/item/pages/printer.pat,local/3acca244.430,.html Google Scholar. For an even more appalling current example, see Singleton v. Norris, 319 F.3d 1018, (8th Cir., 2003) (affirming, on grounds of appropriate health care, the authority of the State of Arkansas to medicate a psychotic death row inmate so that he can be aware of his execution).
98. Stack, Megan K., “An Execution Backlash in an Unlikely Place” L. A. Times (9 June 2001) at http://www.commondreams.org/headlines01/0609-02.htm Google Scholar
99. Grier & Chinni, supra note 1; see Rimer, Sarah, “Victims Not of One Voice on Execution of McVeigh” N. Y. Times (25 Apr. 2001) at http://www.nytimes.com. Google Scholar