¹ Not all violations of criminal law conduct rules constitute breaches of some independent moral norm. Consequently, establishing that the criminal defendant is morally responsible for breaching a legal norm does not justify an attribution of deserved moral blame unless the actor's conduct also breaches some governing moral norm. See text accompanying notes 2–3 below; see also note 3 below and text accompanying notes 21–22 below. This essay thus concerns criminal culpability judgments for “mala in se” crimes whose commission constitutes a breach of both moral and legal norms.

² A word about terminology. I have deliberately avoided using the term “moral act-responsibility” to describe this third condition; even though choice theorists themselves believe that their account of this third condition justifies holding individuals morally responsible for their acts. My central thesis is that one cannot make ultimate sense of moral responsibility for action unless one recognizes that this concept rests on a logically prior and independent conception of moral agency. Accordingly, I have used the term “fair attribution conditions” to convey the choice theorists’ claim that satisfaction of this requirement establishes that the defendant deserves moral blame because the defendant's breach of a norm can be fairly attributed to him.

³ One striking illustration of this claim can be found in the work of retributivist choice theorists who appear to assume that the actor's moral responsibility for breaching a legal norm concerning morally neutral conduct establishes his moral culpability.

These theorists acknowledge a discrepancy between legal and moral blame whenever the law does not require proof that the specific breach of the governing norm can be fairly attributed to the actor. See note 21 below. However, most of these theorists do not discuss whether it is appropriate to impose moral blame for the breach of legal norms fairly attributed to the actor that violate no independent moral norm. Those theorists who do touch on this question tend to blur the distinction between breaches of legal and moral norms.

Consider Professor Radish's treatment of the problem.

To blame a person is to express a moral criticism, and if the person's action does not deserve criticism, blaming him is a kind of falsehood and, to the extent the person is injured by being blamed, unjust to him. It is this feature of our everyday moral practices that lies behind the law's excuses…

It may be argued that though this may be true of excuses in everyday moral judgment, it is not true of the criminal law, because it is not intrinsic to judgments of criminality in our society that they express a moral fault. But this is surely mistaken. Certainly not all criminal conduct is independently immoral. In some cases the law attaches criminal penalties as well to conduct that, apart from its being prohibited, is not immoral. But in either case criminal conviction charges a moral fault – if not the violation of a moral standard embodied in the criminal prohibition, then the fault of doing what the law has forbidden. Kadish, Sanford H., “Excusing Crime,” in Blame and Punishment (New York: MacMillan, 1987), p. 87.Google Scholar

Left unexplained is why this latter “fault” of doing what the law has forbidden should qualify as a breach of some independent moral norm that subjects the actor to deserved moral blame. Certainly, it is not always a moral fault to deliberately violate a legal norm that prohibits morally neutral conduct. Thus, demonstrating that an actor intentionally violated a legal norm that he could have chosen to obey can not, by itself, establish that he deserves moral blame for what he has done unless one collapses the distinction between legal and moral censure. See text accompanying notes 21–22 below.

⁴ See generally Moore, Michael, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984), pp. 233–43.Google Scholar

⁵ See Hart, H.L.A., Punishment and Responsibility (Oxford: Oxford University Press, 1978), pp. 37–39.Google Scholar

⁶ ibid., p. 49. Finally, some utilitarian theorists have also offered nonconsequentalist justifications for accepting this side-constraint so that it operates to limit the pursuit of any utilitarian goal. ibid. p. 80.

⁷ See Seidman, Louis M., “Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control,” Yale Law Journal, vol. 94, no. 2 (December 1984), pp. 315–49.CrossRefGoogle Scholar

⁸ See Schulhofer, , “Just Punishment In An Imperfect World,” Michigan Law Review, vol. 87, no. 6 (May 1989), pp. 1263–93, at p. 1271.CrossRefGoogle Scholar

⁹ Hart, Punishment and Responsibility; Moore, Law and Psychiatry: Rethinking the Relationship; Gross, Hyman, A Theory of Criminal Justice (New York: Oxford University Press, 1979)Google Scholar; Kadish, Sanford H., “Excusing Crime,” in Blame and Punishment (New York: MacMillan, 1987), pp. 81–106Google Scholar; Dressier, Joshua, Understanding Criminal Law (New York: Matthew Bender, 1987)Google Scholar; Dressier, Joshua, “Reflections on Excusing Wrongdoers: Moral Theory, New Excuses, and The Model Penal Code,” Rutgers Law Journal, vol. 19, no. 3 (Spring 1988), pp. 671–716.Google Scholar

¹⁰ Moore, “Choice, Character, and Excuse.” I shall use Moore's work throughout this essay to illustrate both the strengths and weaknesses of the rational choice model for two reasons. First, he is a retributivist who believes his model demonstrates the actor's moral culpability for engaging in criminal conduct. Second, his work, in my judgment, offers the most articulate, detailed and subtle account of the rational choice model in the legal literature.

¹¹ ibid., text accompanying note 1.

¹² ibid., text accompanying notes 71–75.

¹³ ibid., text accompanying note 1.

¹⁴ While the “choosing self” might include some of the emotions and desires that motivate these choices, the salient moral characteristic of the choosing self remains this capacity for rational and voluntary choice. ibid., text accompanying notes 33–35; see also text accompanying notes 41–46 below.

¹⁵ Irrationality about the means-ends relationship may arise where the actor has an empirically unjustifiable and unintelligible belief that the means he uses can produce his goal. For example, a crazy person who is thirsty may suffer from the delusion that imbibing sand will quench his thirst. His goal is intelligible to us, but the means he has chosen to reach it are “irrational.” Instrumental irrationality may also occur where the actor has a sensible goal, understands that a particular action will not be an effective means to accomplish it, but takes that action anyway. Thus, a person who was dehydrated and who knew that sand is not something one drinks would be considered “irrational” if he “drank” the sand to quench his thirst None of these examples of deficient “practical reasoning” capacities depend on any assessment of those aspects of the agent's character that motivate his rational choices.

¹⁶ Morse, Stephen, “Psychology, Determinism, and Legal Responsibility,” ed. Melton, Gary B., Nebraska Symposium on Motivation 1985: Volume 33 (Lincoln: University of Nebraska Press, 1986), pp. 35–85, at p. 60.Google Scholar

¹⁷ Both “soft” and “hard” determinists assume that individuals have this minimal degree of autonomy. Soft determinists argue that this degree of autonomy is sufficient to justify holding individuals morally responsible for their acts even if they lack the greater autonomy to revise their “will.” In contrast, most “hard” determinists insist that moral responsibility requires a greater degree of autonomy over the causal forces in our character that shape our will. In essence, hard determinists agree with Aristotle that moral responsibility for action derives from moral responsibility for character, but they rely on a deterministic account of human action to show why what we are is not up to us.

¹⁸ In contrast, compatibilists are not eager to defend the claim that individuals can be fairly blamed for their characters. See Dressier, “Reflections on Excusing Wrongdoers,” pp. 695–96. In theory, a soft determinist could argue that the individual is morally responsible for those aspects of his character that are a product of his rational and voluntary choices. But, since Freud, legal theorists generally do not link either character development or character change to a simple process of conscious rational choice, ibid. Thus, both rational choice and character-based conceptions of moral agency are vulnerable to the critique of “hard” determinists who insist that the most significant causes of human action lie beyond our conscious control.

¹⁹ That choice theorists tend to assume that deserved attributions of moral blame follow automatically from a demonstration of the actor's moral act-responsibility can be seen in the examples they use to illustrate circumstances where the criminal law severs the connection between legal and moral blame. Their examples include strict liability crimes, the law's rejection of excuses concerning the actor's nonculpable mistake or ignorance about the legal norm he has breached, and restrictions on the scope of excuse defenses that seem motivated more by administrative concerns (e.g., “slippery slope” objections, difficulty of proof, fabrication risks) than moral excuse principles. What unites all of these examples is that they concern the unfairness of blaming someone for an act or a breach of a legal norm that he could not have avoided committing. In all of these examples, the unfairness has nothing to do with whether the norm breached was a moral norm or with whether the actor had the capacity to understand its moral significance.

²⁰ Even if we assumed that all citizens were under some prima facie moral obligation or duty to obey duly enacted laws, the text's conclusion that Kliber merited moral praise for violating this law could be sustained. Even if the duty to obey the law created a reasonably strong moral “ought” that applied to this law from an unjust regime, strong countervailing moral reasons justify Kliber's breach of the legal norm that would defeat any prima facie moral obligation she had to comply.

²¹ Alternatively, a choice theorist might reject the premise that the moral psychopath lacks these moral understandings and moral emotions “through no fault of his own.” According to this view, the psychopath deserves moral blame for his rational choice to violate the law in part because he is morally responsible for lacking the appropriate moral motivation to comply with legal norms that prohibit morally objectionable conduct.

But such a response raises further difficulties for the rational choice theorist. First, it concedes too much ground to a character-based conception of moral agency by implying that what motivates the actor's rational choices is relevant to our judgments about deserved moral blame. Second, the psychopath would not deserve blame on rational choice grounds for lacking appropriate moral understandings and motivations unless he made some earlier choice to deprive himself of these moral capacities. While some adult moral agents do make rational and voluntary choices to destroy their-moral capacities by becoming addicted to drugs or alcohol, this explanation would not fit many moral psychopaths who fail to develop these moral capacities and understandings in their childhood when they are not considered responsible moral agents.

²² Of course, some individuals never develop this capacity because of bad constitutive luck. These individuals would not qualify as moral agents, nor are they morally responsible for the conditions that prevented them from attaining this status.

²³ The criminal law distinguishes between recklessness and negligence on the basis of whether the actor was consciously aware of the risk that his conduct would violate some legal norm. Recklessness requires that the actor consciously disregard a substantial and unjustifiable risk that his conduct will violate a legal norm, whereas negligence only requires proof that he should have been aware of the risk. See American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments), Part I §§ 1.01–2.13 (A.L.I. Institute: Philadelphia, 1985), pp. 225–26.Google Scholar

²⁴ Williams, Glanville, Criminal Law: The General Part, (London: Stevens and Sons, 2d ed. 1961), pp. 122–23.Google Scholar

²⁵ See Hart, H.L.A., “Negligence, Metis Rea and Criminal Responsibility,” in Punishment and Responsibility, pp. 136–57.Google Scholar

²⁶ Moore, , Law and Psychiatry: Rethinking the Relationship, p. 83.Google Scholar

²⁷ ibid., p. 104.

²⁸ Moors, “Choice, Character, and Excuse,” text accompanying note 92.

²⁹ See Model Penal Code and Commentaries, p. 226, § 2.02(3) which creates a presumption that some consciousness of wrongdoing is required for any crime where the legislature has not explicitly placed a mental state requirement in its definition of the offense.

³⁰ The traditional common law rule concerning mistaken self-defense claims requires an assessment of whether the defendant had a “reasonable belief that the use offeree was necessary to repel some unlawful threat of imminent physical harm. Thus, if the defendant makes a negligent assessment of the facts that are needed to support this defense, he loses a full affirmative defense in most jurisdictions. See People v. Goetz, 497 N.E.2d 41 (N.Y. Ct. of Appeals 1986).

Full excuses such as duress require the defendant to show not only that he was coerced to commit the crime but that “a person of reasonable firmness in his situation would have been unable to resist.” Model Penal Code and Commentaries, § 2.09( 1), p. 367. Thus, if a person of reasonable firmness would have realized that the person making the threat lacked the ability or will to carry it out, the defense is not available even if the actual defendant made a negligent assessment of these facts because he was so intimidated by the threat, ibid., p. 374, n. 50.

Even the partial excuse of provocation that reduces an intentional killing from murder to voluntary manslaughter requires proof that a “reasonable person” would have lost his normal self-control capacities if subjected to the provocation that prompted the defendant to kill. See Arenella, , “The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage,” 77 Columbia Law Review, vol. 77, no. 6 (October 1977), pp. 827–65, at pp. 850–52.CrossRefGoogle Scholar

³¹ See Model Penal Code and Commentaries, § 2.09(1), at p. 367.

³² Moore does offer an alternative “failed justification” account for duress excuses that I shall examine in the last section of this essay. See text accompanying notes 39–40 below.

³³ See note 28 above. It is highly unlikely that T made some earlier rational choice to become an excessively timid person. Thus, the choice theorist must argue that T's excessive aversion to physical discomfort constituted a “predisposition” to succumb to such a threat, but that he retained the capacity to choose to act inconsistently with this character defect. This behavioral view of our character traits as simple predispositions to act assumes we can isolate the actor's timidity from both his “rational choosing capacity” and his other desires, aversions, emotions, and interpretations of what his options are at the moment he acts. The last section of this essay will offer reasons for rejecting this reductionist view of our character traits. See text accompanying notes 41–45 below.

³⁴ Dressier, , “Reflections on Excusing Wrongdoers,” pp. 695–98Google Scholar; Moore, , Law and Psychiatry: Rethinking the Relationship, pp. 110–11Google Scholar; Gross, , A Theory of Criminal Justice, pp. 76–77.Google Scholar

³⁵ Moore, , “Choice, Character, and Excuse,” text accompanying notes 93–95.Google Scholar

³⁶ To be fair to Moore, he makes these negligence arguments in reply to character theorists such as Nicola Lacey who argue that we should only impose legal blame for criminal acts that do reflect some morally objectionable character trait. See generally Lacey, Nicola, State Punishment (London: Routledge, 1988)Google Scholar; Bayles, Michael, “Character, Purpose, and Criminal Responsibility,” Law and Philosophy, vol. 1, no. 1 (April 1982).CrossRefGoogle Scholar

³⁷ Some common law formulations of duress require that the defendant have faced some “imminent” threat of unlawful physical harm in order to raise the defense of duress. Many jurisdictions would not permit this defense if the actor had a reasonable opportunity to avoid committing the criminal act without subjecting himself to the threatened danger. In contrast, the Model Penal Code duress provision is drafted broadly enough to permit a defendant in Hearst's situation to raise the defense. See Model Penal Code and Commentaries, Part 1, pp. 375–84. But as the authors of the commentary to this section note, “it may be very difficult to persuade a jury that an act willingly performed at the time was truly the product of unlawful force and would have been performed by a person of reasonable firmness subjected to similar conditions.” ibid., p. 377.

³⁸ Moore, , “Choice, Character, and Excuse,” text accompanying notes 37–38.Google Scholar

³⁹ ibid., text at note 30.

⁴⁰ Moore, , Law and Psychiatry: Rethinking the Relationship, p. 88Google Scholar [“characters are themselves constructs created by generalizing about what one does when one's choices are unconstrained.”]

⁴¹ Dressier, , “Reflections on Excusing Wrongdoers,” p. 701.Google Scholar

⁴² See Brandt, Richard, “Traits of Character: A Conceptual Analysis,” American Philosophical Quarterly, vol. 7, no. 1 (January 1970), pp. 23–37.Google Scholar

⁴³ ibid.

⁴⁴ Adopting this motivational view of character traits might also lead theorists to reject the idea that “character” as a general descriptive construct can be derived simply by looking at a person's consistent pattern of action over time. Instead, a motivational view of some of our character traits might support a more holistic and integrated conception of character that referred to the way an individual's relatively consistent and coherent values, emotions, desires, and aversions interact with each other over time to generate that person's goals, motivations, and interpretations of his social reality.

One implication of these competing views of character and character traits is that they establish very different baselines from which to evaluate whether a person's action was “in” or “out” of his moral character. If moral character refers to a consistent and coherent pattern of moral action over time, then a person can be described as acting “out of character” whenever he does something that is inconsistent with this pattern. Thus, a greedy person is someone who has acted greedily in the past or someone whom we predict will act greedily in the future if given an occasion to do so. If this person does something that appears generous, we describe the action as “out of character.” Depending on our knowledge of that person's past acts and our evidence about his present predispositions, a potentially broad range of future behavior on his part could qualify as being morally “out of character.”

In contrast, if we use the broader motivational view of moral character as our baseline, a far smaller category of actions will be described as morally “out of character” even if the person had never acted like that before. If we have a reasonably complete picture of a person's moral character, most of his moral and immoral future actions will reflect some enduring moral character trait – even if what we learn is new information about how that trait motivates behavior under new and unusual circumstances.

I do not mean to suggest that, once we adopt a broader conception of what moral character traits encompass, one can never act out of moral character. While all of a person's actions tell us something about that person's personality, the information might not tell us anything significant about the person's moral character that distinguishes him from anyone else for purposes of making a judgment of moral blame.

⁴⁵ Moore, , “Choice, Character, and Excuse,” text at notes 33–34.Google Scholar

⁴⁶ ibid., text at notes 34–35.