More on 'Act and Crime.' (Symposium: Act & Crime)

• Author: Moore, Michael S.

Not only were the editors of the Law Review kind enough to organize and host the Act & Crime Symposium whose articles precede this one, but they have also graciously allowed me a chance to respond to some of the 'suggestions and criticisms made in those articles. Since each article contains many points, I will not attempt to respond to all of them. Nor shall I seek to respond to each author separately. Rather, I have grouped my responses to all authors around eight topics: (1) the relevance of metaphysics and the philosophy of action to issues of legal and moral responsibility; (2) stylistic and organizational issues as to how to draw certain distinctions and how to have organized Act and Crime(1); (3) the proper way to conceive of omissions; (4) the moral and legal relevance of omissions so conceived; (5) whether the concurrence requirement--that act, mental state, and causation all concur for prima facie liability--is always true of our ascriptions of moral and legal responsibility; (6) the nature of the criminal law's voluntary act requirement and its application to troublesome cases such as sleepwalking and other dissociated states; (7) whether volitions are a kind of intention and how they contrast with other candidates for the immediate mental executors of those bodily movements that are actions; and (8) whether actions and events are to be individuated by the properties they exemplify or in the manner I propose in Act and Crime. I welcome the opportunity to say more on these topics, although I would venture that it is not so much more that it leads to any wholesale surrender by those whose criticisms I seek to deflect.

1. THE RELEVANCE OF THE "HIGH METAPHYSICS" OF ACTION TO ISSUES OF LEGAL AND MORAL RESPONSIBILITY

   In presentations of some of my more metaphysical papers over the years I have noticed a marked reluctance of political and legal philosophers to concede me a worthwhile topic. Indeed, even the use of the word "metaphysics" often bothers my colleagues in legal/ political philosophy. My suspicion is that many philosophers who specialize in legal or political philosophy choose to do so in part to get away from the abstractness and seeming irrelevance of metaphysical questions like, "What is an action?" They also resist what they see as the cabining effect of the "brute facts" of metaphysics dictating answers to the design of legal and political institutions when those answers seem better argued for on normative grounds.

   Of the present commentators on Act and Crime, Bernard Williams and, to a lesser extent, Samuel Freeman, Stephen Morse, and Jennifer Hornsby seem to have experienced a bit of this resistance to metaphysics. Williams, for example, urges that "the criminal law, after all, has special aims and purposes" that should guide "the requirements that it imposes on describing people's actions," whereas the metaphysics of action is "motivated quite independently of those special purposes."(2) Similarly, Freeman finds the principles and norms relevant to criminal law to "have their bases not in metaphysical considerations, but in the practical necessities and interests of democratic citizens."(3) Even were this not true, Freeman adds, we should "avoid using the metaphysics of action as much as possible" in criminal law because of the difficulties of obtaining agreement on the truth of any one version of such metaphysics.(4)

   The structure of Act and Crime was designed to forestall such worries. For each of its three parts, the book begins with criminal law doctrine, probes that doctrine's moral point, and only then asks metaphysical questions about actions. This structure was adopted to justify a metaphysical analysis before any was done. Moreover, if the purposes behind the doctrines in question did not require a metaphysical answer, none was sought. For example, on the individuation of "units of offense" required for double jeopardy, one might think that the metaphysics of event-tokens and of act-tokens should be used to give the legally appropriate answer. In chapter 14 I argue to the contrary, setting aside any metaphysics-of-action answer to the unit of offense question in favor of a "wrong-relative" mode of individuation. I do this because the dominating purpose animating the double jeopardy requirement--to proportion punishment to desert--requires a count of the separate instances of wrongs done by an accused, not a count of the separate act-tokens he may have done in doing those wrongs.

   Williams and Freeman applaud my eschewal of the metaphysics of action on such occasions.(5) They worry, however, that much of my book presupposes "a more robust view of the role of metaphysics"' in criminal law theory.(6) They are right to worry, since I do have a more robust view. When the criminal law requires a voluntary act, I take that doctrine to require the doing of an action--as that natural kind of event is theorized about in the metaphysics of action. When the criminal law prohibits complex act types like killings, maimings, burnings, frightenings, and the like, I take those doctrines to require the causing of certain states of affairs (deaths, disfigurements, and so forth)--as the metaphysics of causation would analyze such causings. When the criminal law requires that a prohibited action take place when the actor also has a culpable mental state and where the state trying him has both jurisdiction to legislate and to adjudicate, I take those doctrines to require the finding of the temporal and spatial locations of actions--as the metaphysics of action would analyze such locations.

   Each of these criminal law doctrines invites my metaphysical enquiries because of the moral points behind such doctrines. Such purposes are themselves subservient to the overarching purpose of criminal punishment, which is retributive: people should be punished because of (and only in proportion to) their moral deserts. This means that legal doctrines (such as that requiring a voluntary act or that requiring punishable acts to be instances of wrongful act-types, like killings) are best interpreted so as to get at the moral deserts of offenders, and morality itself invites metaphysical answers to questions like, "Is sleepwalking really an action?"

   There are five sets of concerns that appear to motivate Williams, Freeman, Morse, and Hornsby to their sharing of a less optimistic view about the role of the metaphysics of action in criminal law theory (recognizing that not all of them share each of these concerns). This first concern comes from Williams's uniformly practical view of the law, morality, and the metaphysics of action. Each of these areas of thought, Williams believes, is guided by its own unique purposes and concerns. And why should we think that a criminal law act requirement (guided, for example, by a concern not to punish the undeterrable) should track an act condition we might attach to our everyday ascriptions of moral responsibility (which are themselves guided, say, by the purpose of directing an appropriate response of shame)?

   The probable difference in the purposes guiding the criminal law and those guiding our ordinary responsibility ascriptions exists for Williams only because of his own theories in political philosophy and in metaethics. More specifically, Williams is not a retributivist in his political philosophy about punishment. He thus thinks reasons other than giving guilty offenders their just deserts justify and guide criminal sanctions. It is this more heterogeneous theory of punishment that allows him to think that the criminal law should be guided by a set of purposes that are unique to it. Then one might well think that such other purposes set aside the metaphysics of action because they set aside the morality (of desert) that requires such metaphysical analysis of action.

   In addition, Williams is not a realist in his metaphysics of morality. He does not, in other words, believe that moral qualities like desert exist in the mind- and convention-independent way that defines moral realism. Williams is thus free to think, as indeed he does, that the ascriptions of moral responsibility by one person to another are guided by "the aim of directing some response" to the one about whom the ascription is made.(7) Moral responsibility ascriptions, in other words, are judgments made to achieve some purpose and not simply to describe the moral truth about someone. Such purpose of guiding responses of various kinds need have no correspondence with the purpose of getting the morality right, so Williams may also put the metaphysics of action aside just because he puts aside (as meaningless) any concern with the moral truths that require such metaphysical enquiries.

   I cannot hope to bridge these first kinds of differences with Williams here, constituting as they do two large issues of political philosophy and metacthics. My only point here is to note that insofar as Williams's suspicions about the metaphysics of action stem from these sources, they presuppose a good deal against which I have explicitly argued elsewhere, outside of Act and Crime.(8) If one adopts my own retributivist theory of punishment, then the guiding purpose of criminal law is to punish those who deserve it in proportion to their desert. If one adopts my own noninterest relative metacthics, then the finding of moral desert is not a matter of any purpose of ours, save the purpose of describing the moral facts of responsibility accurately. And if one adopts the view of the relevant moral facts about responsibility that I offer in chapter 3 of Act and Crime, one will find questions like "What is an action?" to be central in assessing moral desert.

   A second set of concerns about the relevance of the metaphysics of action to the criminal law is openly avowed by none of my commentators. Yet I suspect it may be present (and if not, it is certainly present in others). This concern stems from an antirealist position about...