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10 - Into the Gap: Evaluating Some Substantive Dissonances

Published online by Cambridge University Press:  05 May 2014

Morris B. Hoffman
Morris B. Hoffman
Affiliation:
University of Colorado Boulder
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Summary

The Reformer is always right about what is wrong. He is generally wrong about what is right.

G. K. Chesterton

We've seen that our brains have been organized by natural selection to blame wrongdoers on the basis of two central considerations: the wrongdoer's intent and the amount of harm he causes. Unless we are psychiatrically disabled, or are having parts of our brains deactivated by transcranial magnetic stimulation, we blame intentionally harmful acts most, intentionally harmful but ultimately harmless acts next, and unintentionally harmful acts least. In legal parlance, we blame intentional crimes most, attempted crimes next, and reckless or negligent crimes least. Inside each of these broad categories – when intent is a tie – we blame and then punish graded to harm.

There are, however, some legal doctrines that alter these two drivers of blame and punishment. In this chapter we apply the test we developed in Chapter 8 to four such dissonances: the felony-murder rule, corporate criminal liability, attempt, and conspiracy. This is hardly an exhaustive list of blame-dissonant legal doctrines. There's the whole world of strict liability, where the law holds people criminally responsible for harms regardless of whether they intended the harms or even whether they were as careful as they should have been. There are even civil doctrines that seem to conflict with our blaming instincts. There is also a whole category of legal rules and expectations that conflicts not with our blame instincts but with other evolved predispositions surrounding our decision-making. These include some of the process dissonances we discussed in the last chapter, as well as legal notions about causation and proof that seem in deep conflict with instincts we evolved about risks and probability.

Type
Chapter
Information
The Punisher's Brain
The Evolution of Judge and Jury
 , pp. 289 - 328
Publisher: Cambridge University Press
Print publication year: 2014

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References

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