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Friday, June 12, 2009


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Thank you for the thoughtful response. You raise many good points. Forgive me if I manage to address only some of them. And thank you, Bill, for affording us this forum to discuss issues of ability & responsibility.

Let’s talk first about the law and the PAP. I say the law (wisely) does not admit a plea or defense that the accused could not have done otherwise. You think this is wrong. You say in Part IV of your essay that in a criminal action the defense may argue for acquittal on the grounds that the defendant could not distinguish right from wrong at the time of the offense (and so did know that what he was doing was wrong). Correct, but what does this have to do with whether he could have done otherwise? In waht way is this defense supposed to be recognized as a (disguised?) version of the PAP? This defense is meant to excuse people who were (temporarily) insane at the time they did something wrong. I agree that insane people should not be held criminally responsible for their actions, but what is the connection here to the PAP? I don’t get it. Are you implying that any action performed by an insane person is an action that the person could not have avoided performing? Not very plausible.

Look, there is a defense that implies that the defendant could not have done otherwise. If I was forced or compelled to do X, then I could not have done otherwise than X. In Conrad’s novel, if Lord Jim had been tied up and dragged off the ship by the other mates, then we should not hold him responsible for abandoning his ship. Compulsion is a legitimate excuse or defense, but notice that compelled acts are just one narrow kind of “could not have done otherwise” performances. It is rank fallacy to infer from the fact because in one type of case where I could not have done otherwise my acts are excused that in all cases where I could not have done otherwise my acts should be excused. Utter non sequitur, but I fear that this is how many PAPists (if I may label them) reason.

“Could not have done otherwise” is ill-defined, open-ended, portmanteau excuse that could be invoked in almost unlimited ways to justify especially the most horrific conduct. The law wisely wants no part of this kind of defense. There is, for example, no claim that Gacy or Bundy were forced to torture and murder, but, given all the psychopathology involved, people are willing to argue that they could not have done otherwise. The law wisely refuses to get entangled with an unknown that could sabotage and wreck every criminal prosecution. Now I think some Papists know this and want this result. They are moral skeptic who want the conclusion that no one can be held morally or criminally responsible for their evil deeds. This is the point of my Trojan Horse simile.

Besides armchair cases like the Frankfurt counterexamples, there are plenty of real situations in which we hold someone responsible for a deed or omission though we concede he could not have done otherwise. A lifeguard lets a child drown in a pool he is supervising because he (the lifeguard) is unconscious at the time of the drowning. If he is unconscious, he could not have saved the child, but it matters crucially why he was unconscious. If he was unconscious because he got drunk and passed out, we have a very different opinion than if he had a stroke or seizure. In both cases he could not have saved the child, but in the former case we hold him responsible for the child’s drowning. We don’t give a damn that he couldn’t have saved the child because he was drunk. His irresponsible drinking is the reason a child drowned. We don’t give a damn that he was an alcoholic and claims he could not stop drinking. He was derelict and a child died as a result. Van Inwagen says in cases like these we do not hold him responsible for failing to save the child, which he could not do, but for drinking and incapacitating himself. This is certainly wrong as a matter of law. In fact we hold him responsible for both drinking on duty and for negligently letting the child drown. There is ample case law on this issue.

Reflecting on cases like the drunken lifeguard should weaken the intuitive appeal of a PAP condition on responsibility. We do excuse SOME cases of wrongdoing or dereliction where the plea, for example, compulsion, entails the agent could not have acted otherwise. But we also categorically reject this excuse in other cases, and the law in fact recognizes no general (PAP) plea to the effect that the doer could not do otherwise.


You mention laws governing speeding in section (b3) of your essay. Those of us who have fought (and lost) speeding cases soon discover that speeding is what is called a strict liability offense. The prosecution needs to show no mens rea, no intentional or desire to speed. If you operating a vehicle that was traveling more than the speed limit, you are guilty of speeding. Other more serious offenses are also strict liability offenses.

If Bill decides to capture one the mountain lions that frequents his environs and make a house pet of him, he can, but keeping dangerous animals as pets is regarded as an “inherently dangerous activity.” If Fluffy (his pet) gets loose and begins to snack on some of Bill’s neighbors, Bill has serious criminal and civil liability, even if he has done every reasonable or even conceivable thing to prevent this. If a fluke earthquake or lightning strike releases Fluffy, Bill is still responsible. It matters not that he did not want this to happen and did everything he could have to prevent it; he is responsible for the carnage Fluffy causes.

Strict liability cases are another example where the law puts people on notice that any kind of “did not intend” or “could not have prevented” the result will be rejected. I like the idea that the use of firearms should be classified as an inherently dangerous and so a strict liability offense. If you are using a firearm and for any reason you cause injure to another person, you should be held criminally & civilly responsible for the mishap. (I say this as someone who has owned and used firearms in war & peace for 40 years.)

Strict liability crimes are another example of where the law cares not whether someone could have done otherwise.


I concede you are right on the epistemological point that we should not say we can NEVER know whether someone could have done otherwise. Did I say or imply this? It is enough for my argument against Papism that we OFTEN cannot be sure that this is not so, and especially in case of horrific wrongdoing. Maybe if we discover that Phil has been embezzling money from his family trust and spending it on the girls at the PussyKat Lounge, we can with complete confidence reject his plea of nymphetomania—see Nabokov’s LOLITA. He could and should have refrained from the embezzlements, however strongly he was attracted to the very young ladies at the PussyKat. But more serious cases that involve psychopathology are not so easily resolved. Could Bundy or Gacy have refrained from torturing & killing, given their impulses and lack of moral restraints? I don’t know, but as a juror, fortunately, I don’t care. Did they do these horrible things? Yes! Did they know what they were doing and did they know it s terribly wrong? Oh, yes. Then they are guilty and deserve capital punishment.

Do not try to undermine the edifice of crime and punishment by introducing the blanket, open-ended, and often undecidable requirement that the prosecution show the perpetrator could have dove otherwise.


Frankfurt, as you know, eventually came to conclusion that his counterexamples showed that we must replace the PAP with this principle:
(P) a person is not morally responsible for what he has done if he did it ONLY BECAUSE he could not have done otherwise.
He explains: “we understand a person who offers this excuse to mean that he did what he did ONLY BECAUSE…he had to do it. We understand him to mean him to mean, more particularly, that when he did it, what he did…was not what he really wanted to do.”

As his examples make even clearer, (P) is just a long-winded version of the plea of compulsion, which we already admit. We are not responsible if we are forced or coerced into doing something we abhor. If we are forced or coerced, we could not have done otherwise. But this is no reason to accept the much broader claim that whenever he cannot do otherwise for any sort of reason, we are not responsible. The law wisely accepts compulsiom, insanity, etc as excuses, but rejects the PAP.


On a personal note, let me add this. Some of the worst decisions I have made in my life are decisions that I now do not know whether I could have chosen differently. Given the circumstances and what I knew (or thought I knew) and my decision criteria, it is very hard for me to imagine coming to a different verdict about what I should do. Let’s say that I am an agnostic on the issue of whether I could have chosen differently. But my agnosticism does not impair my judgment that I am fully responsible for those choices. Do you understand? The PAP says no, Phil, if you doubt whether you could have chosen and acted differently, you should doubt whether you are responsible. The PAP is wrong.

You know, the worst decisions always seem to be the decisions we are most deliberate and careful about. It is easy to dogmatize and say “you always could chosen differently in these circumstances” but that is mere assertion. I think we must hold ourselves responsible for what we wanted to do and chose to do and did, regardless of any theoretical speculation about what else we could or might have done. The PAP has no role in our moral deliberations.

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