Accusing, condemning, and avenging are part of our daily life. However, a review of many years of literature attempting to analyze our blaming practices suggests that we do not understand very well what we are doing when we judge people culpable for a wrong they have committed. Of course, everyone agrees that, for example, someone deserves censure and punishment when she is guilty of a wrong, and the law has traditionally looked for a mens rea, or “guilty mind,” in order to convict someone of a criminal wrongdoing. But philosophers and legal theorists have found it interestingly difficult to say what mens rea is. For example, noting the way in which we intuitively think people aren't culpable for a crime if they disobey the law by mistake, or under duress, or while insane, theorists such as H.L.A. Hart have tried to define mens rea negatively, as that which an agent has if he is not in what we consider to be an excusing state. But such an approach only circumscribes and does not unravel the central mystery; it also fails to explain why the law recognizes any excusing states as mitigating or absolving one of guilt, much less why all and only the excusing states that are recognized by the law are the right ones. Moreover, the Model Penal Code, which gives a very detailed account of the kinds of mental states which justify criminal conviction, does not tell us (nor was it designed to tell us) why these states of mind (e.g., knowledge, purposiveness, intention, assumption of risk of harm, negligence) are relevant to an assessment of legal guilt.

Moral theorists often say such things as “But surely A ought to do such and such,” or “Plainly it is morally permissible for B to do so and so,” and do not even try to prove that those judgments are true. Moreover, they often rest weight on the supposition that those judgments are true. In particular, they often rest theories on them: they take them as data.

Others object. They say that nobody is entitled to rest any weight at all on judgments such as those. They say, not that the judgments are false, but that there is no reason to believe them true. They say, more generally, that there is no reason to think of any moral judgment that it is true. I will call this The No Reason Thesis.

Is there reason to think The No Reason Thesis true? There are lots of arguments for it in the literature, but I want to focus on one of them in particular. I think that the one I will focus on lies behind all the others, but no matter if it does not: I suggest that if this argument fails, they all fail.

This article is concerned with the nature of individual moral failure. This has not been a standard issue for exploration in moral philosophy, where questions surrounding moral success have been more popular: in particular, the questions “What is it to do the moral thing (i.e., how do I identify moral success)?” and “Why am I supposed to do the moral thing (i.e., what is morality's authority)?” I want to change the subject and pursue answers to three importantly related questions about people's failure to be moral.

First, I want to explore an issue in moral psychology: why do people behave immorally? I suspect this question has been largely ignored by philosophers because they have thought it a question for psychologists, and one that, at any rate, has an easy surface answer. Isn't it our immorality simply the result of our excessive self-interest? Yet we shall see in what follows that this answer is not nearly good enough, and that philosophers have a lot to contribute in determining what would count as a satisfactory answer. We shall also see that different meta-ethical theories purporting to explain the authority of moral action implicitly assume different and often mutually inconsistent accounts of why (and when) we fail to be moral, and our analysis will show that none of these accounts of moral failure is unproblematic.

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 (including my own) 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 (capacity and opportunity) 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 (or in some other way expressive of) those enduring attributes of ourselves we call our characters.

Should a person who cannot appreciate the moral significance of legal norms qualify as a blameworthy actor simply because he has the capacity to comply with them for non-moral reasons? Such a person may lack any empathy for other human beings and view moral norms as arbitrary restraints on his self-interested behavior: does he nevertheless deserve moral blame when he makes an instrumentally “rational choice” to breach a norm governing his action? Should our answers to these questions depend on whether we believe that the actor is morally responsible for lacking these moral emotions and understandings? In short, must we concern ourselves with those aspects of the agent's character – his goals, desires, values, emotions, and perceptions of what courses of action are available to him – that motivate his rational choices? Or are questions about what motivates the actor to exercise his capacity for rational choice irrelevant to our judgments concerning his moral culpability for violating some governing norm?

One way of thinking about such questions is to ask what attributes a person must possess to qualify as an appropriate addressee of moral norms and a suitable object of moral blame. Must a moral agent have the capacity to respond to moral norms as a reason for his choices? Must he also be able to control those aspects of his character that impair his capacity to make moral choices?

Most legal theorists insist that moral agents do not need such capacities to be fairly blamed for violating the minimal moral restraints that the criminal law imposes on their self-interested acts.

Students of the history of ethics sometimes find themselves tempted by moderate or extreme versions of an approach that might roughly be called ‘historicist’. This temptation may result from the difficulties of approaching historical texts from a ‘narrowly philosophical’ point of view. We may begin, for instance, by wanting to know what Aristotle has to say about ‘the problems of ethics’, so that we can compare his views with those of (say) Aquinas, Hume, Kant, Sidgwick, and Rawls, and then decide what is true or false in each theorist's position. But this narrowly philosophical attitude soon runs into difficulties, and writers on the history of ethics often warn us against it.

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists.

In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. (I omit consideration of criminal laws premised on immoral norms.) I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability.

There is some irony, and perhaps a bit of gallows humor, in opening a paper in this volume with the claim that “applied ethics” is a misnomer. Yet that claim is true in the following sense. What we need for most of the issues that have sparked the contemporary resurgence of moral and political theory is not the application of ethics as we know it, but the revamping of ethics to make it relevant to the issues we face. It is in our concern with major policy programs that ethics and political philosophy are most commonly rejoined to become a unified enquiry after a nearly complete separation through most of this century. Yet, ethical theories may be shaken to their foundations by our effort to apply them to policy problems. I do not propose to revamp ethics here, but only to show that much ethical theory cannot readily be applied to major policy problems.

There are at least three important characteristics of major policy issues in general that may give traditional moral theories difficulties. First, such issues can generally be handled only by institutional intervention; they commonly cannot be resolved through uncoordinated individual action. Theories formulated at the individual level must therefore be recast to handle institutional actions and possibilities. Second, major policy issues typically have complicating strategic interactions between individuals at their bases. Third, they are inherently stochastic in the important sense that they affect large numbers with more or less determinable (or merely guessable) probabilities. C. H. Waddington calls such issues instances of “the problem of the ethics of stochastic processes.”

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.

Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination.

My goal in this essay is to say something helpful about the philosophical foundations of deontic restraints, i.e., moral restraints on actions that are, roughly speaking, grounded in the wrongful character of the actions themselves and not merely in the disvalue of their results. An account of deontic restraints will be formulated and offered against the backdrop of three related, but broader, contrasts or puzzles within moral theory. The plausibility of this account of deontic restraints (and of the conception of moral rights which are correlative to these restraints) rests in part on how well this account resolves the puzzles or illuminates the contrasts which make up this theoretical backdrop.

You buy a lottery ticket and you lose. You are sorry, but you wouldn't dream of complaining. Why then do you feel entitled to complain in the following sorts of cases?

A moral code consists of principles that assign moral status to individual actions – principles that evaluate acts as right or wrong, prohibited or obligatory, permissible or supererogatory. Many theorists have held that such principles must serve two distinct functions. On the one hand, they serve a theoretical function, insofar as they specify the characteristics in virtue of which acts possess their moral status. On the other hand, they serve a practical function, insofar as they provide an action-guide: a standard by reference to which a person can choose which acts to perform and which not. Although the theoretical and practical functions of moral principles are closely linked, it is not at all obvious that what enables a principle to fill one of these roles automatically equips it to fill the other. In this paper I shall briefly examine some of the reasons why a moral principle might fail to fill its practical role, i.e., be incapable of guiding decisions. I shall then sketch three common responses to this kind of failure, and examine in some detail the adequacy of one of the most popular of these responses.

Jewish law takes an approach to self-defense that differs dramatically from the conventional assumptions of Western secular legal systems. The central theme of Talmudic jurisprudence is that self-defense rests on a duty not to stand idly by while one's neighbor suffers. “Do not stand on the blood of one's neighbor,” as the point is cryptically put in Leviticus 19:16. This way of thinking about self-defense departs in two significant ways from common Western assumptions. First, it stresses that the roots of self-defense are a duty rather than a right to act; second, it treats the case of third-party defense (defense of others) as logically prior to the first-party case of self-defense.

My aim in what follows is to sketch with a broad brush fundamental changes involving the concept of obligation in British ethics of the early modern period, as it developed in the direction of the view that obligatory force is a species of motivational force – an idea that deeply informs present thought. I shall also suggest, although I can hardly demonstrate it conclusively here, that one important source for this view was a doctrine which we associate with Kant, and which it may seem surprising to find in British ethics, especially of the early modern period, viz., that rational agents are obligated by motives available through a form of practical thinking necessary for rational autonomy.

In recent years, there has been renewed interest in the question of when, if ever, the state may use coercion to enforce majority views about what types of conduct are right or wrong, noble or base, decent or indecent. Such interest has been generated by both political and philosophibal pressures. In recent political history, controversies over such issues as abortion, homosexuality, pornography, textbooks in schools, new reproductive technologies such as surrogate parenting and in vitro fertilization, and faith healing have focused attention on the role of the state in supporting or opposing various moral views. In political philosophy, often a theoretical reflection of the political debates of the time, we have seen renewed attempts to provide a satisfactory foundation for traditional liberal (in the sense of Millian) views of the legitimate scope of state power. In particular, there has been an emphasis on the neutrality of the liberal state and the right of individuals to be treated as equals by the state.

Statements about a person's good slip into and out of our ordinary discourse about the world with nary a ripple. Such statements are objects of belief and assertion, they obey the rules of logic, and they are often defended by evidence and argument. They even participate in common-sense explanations, as when we say of some person that he has been less subject to wild swings of enthusiasm and disappointment now that, with experience, he has gained a clearer idea of what is good for him. Statements about a person's good present themselves as being about something with respect to which our beliefs can be true or false, warranted or unwarranted. Let us speak of these features as the descriptive side of discourse about a person's good.

Walk across a campus on a beautiful fall day and observe what a conversing species we are. Chimpanzees can be taught to talk a little, in sign language. Put educated chimpanzees together, though, and they turn out to have nothing to say to each other. We humans are different; we can even find silence awkward.

Language does many things for us; conveying straight information is the most obvious. I want to stress, though, some of the ways that talk adjusts our terms for living together. What I say will be speculative and some of it will no doubt be wrong, but I suspect it is not completely off-base. Much of talk we can see as securing and adjusting terms of association – terms, among other things, of cooperation and mutual restraint. In part, this is a matter of governing our feelings toward each other. Feelings tend toward action; they can make for social glue or social bombshells. Nature, in the form of Darwinian evolution, has given us various ways to mesh feelings, and some of these. I think, are a matter of language.

One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping (he tells everyone) to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man.

Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender.

Achilles is vindictive; he wants to get even with Agamemnon. Being so disposed, he sounds rather like many current crime victims who angrily complain that the American system of criminal justice will not allow them the satisfactions they rightfully seek. These victims often feel that their particular injuries are ignored while the system addresses itself to some abstract injury to the state or to the rule of law itself – a focus that appears to result in wrongdoers being treated with much greater solicitation and respect than their victims receive. If the actual victims are noticed at all (other than to alert the state to a violation of its interests), they will likely be told that there is another branch of law – tort law – that has the job of dealing with private injuries and grievances and that, if they pursue this route at their own expense, they might ultimately get some financial compensation for the wrongs done to them. However, just as Achilles felt that mere compensation was inadequate to the kind of injury done to him by Agamemnon, many of these victims will often claim that the injuries they have suffered (brutal rape, perhaps) do not admit of financial compensation. How, they might ask, can a dollar value be set on the humiliation and degradation they have experienced? They might also note that those who injure them tend, unlike Agamemnon, to be judgment-proof – so lacking in resources as to be unable to make any meaningful contribution to any compensation package that the victim may win.