Editorial Committee of the Cambridge Law Journal

Responsibility, Character, and the Emotions. New Essays in Moral Psychology by FerdinandSchoemanReview by: Hyman GrossThe Cambridge Law Journal, Vol. 48, No. 2 (Jul., 1989), pp. 322-325Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507289 .

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Cambridge Law Journal, 48(2), July 1989, pp. 322-342 Printed in Great Britain

BOOK REVIEWS

Responsibility, Character, and the Emotions. New Essays in Moral Psy- chology. Edited by FERDINAND SCHOEMAN. [Cambridge: Cambridge University Press. 1987. ix, 354 and (Index) 4 pp. Hardback £35-00, paperback £11-95 net.]

MORAL psychology is unlike the ordinary kind. It deals with what is right and wrong about thoughts and feelings, but not to explain and to cure. Its general point of view is critical, but not with reference to a happier, more satisfying, and more fulfilled life. Instead its criticism aims at approving or disapproving what goes on in the mysterious internal region where nothing can be touched, heard, or seen. Perhaps its most important assumption is that moral judgments about what people feel and think are important, and that moral judgments generally must take account of what went on inside a person and behind his acts.

This excellent collection of essays in moral psychology takes up many questions that will interest legal theorists and philosophers of law. All of the pieces bear on questions of responsibility or punishment, and many illuminate neglected corners of the subject.

In the first essay Harry Frankfurt considers how we can be responsible for what we become in view of the fact that we are not responsible for what we are, which always includes a strong set of dispositions to view ourselves in some particular way. The foundations of distributive justice and of criminal justice are affected by this question, since our abilities to achieve and to conform are both massively influenced by how we are disposed to see ourselves. In the next essay Susan Wolfe takes up a similar question that is raised when we see that our deepest self is caused by forces outside ourselves. Doesn't this fact then leave us all ultimately without responsibility since our own deepest desires are not of our own making? The problem is resolved by putting it in the context of pathology, so that it is a sufficient condition of responsibility that the agent's acts are controlled by his desires, that the desires themselves are not out of the agent's control, and that the agent is sane in the sense of being able to appreciate reasons for steering a certain course and being able to steer it even though the deepest desires the agent happens to have are (metaphysically speaking) quite beyond his control.

Patricia Greenspan then looks at the actor who (for example) acts in extreme anger and so is in one clear sense unfree, yet is treated as a responsible agent. The more general question of freedom as a condition of responsibility is discussed in a way that should be useful to theorists of the criminal law. John Martin Fischer approaches the same range of questions in a metaphysical way that will be less helpful to those who must decide the fate of people facing criminal liability. This essay is a reminder that metaphysical answers not only come from a purer world but must be confined to that world in their application. The curious notion of responsibility for one's emotions is the subject of an essay by John Sabini and Maury Silver.

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C.L.J. BookReviews 323

Concentration on the inner life and on the truths of character that emotions bear witness to can be a very dangerous business when people's lives are

being disposed of by those who exercise public power. In this essay the authors suggest that aesthetic, rather than moral judgment is the appropriate response, and so blame and punishment have no place in these matters.

Culpability and the retributive emotions are the subjects that occupy seven of these authors. Herbert Morris argues against the accepted view that

culpable wrongdoing is necessary for a wholesome sense of guilt, and provides a range of cases in personal life where guilt is quite naturally felt for states of mind that simply occur, for the unfair position one enjoys which one is not at all responsible for, and for the vicarious guilt experienced by members of a group where membership has just happened and where the member has no control over what the group is responsible for. In refining our sense of

guilt in this way Morris in effect provides cautionary insights for the ascription of criminal liability.

A number of pieces look closely at the retributive emotions. Gary Watson discusses Strawson's account of excusing and exempting conditions and

provides an alternative internal approach to the subject of exculpation. Ferdinand Schoeman in his contribution discusses the problem of attributing acts to individuals rather than to surrounding influences, and presents an

illuminating critique of the literature of social psychology that has shaped the prevailing views. Richard Burgh questions the moral legitimacy of the retributive emotions, and proposes a compensatory scheme that in effect reaffirms the important social values that crime in effect disaffirms. In the volume's last essay, Gerald Dworkin discusses the question of what moral difference there might be between intending harm as a means to doing good, and acting to bring about the same good in a way that will result in the harm.

The retributive emotions have a high moral standing conferred on them in two essays that invite some further consideration.

In their essay on provocation and culpability Andrew von Hirsch and Nils Jareborg propose a principle of resentment to account for the extenuation that is recognised by the law in cases of provocation. Under this principle, there are extenuating circumstances when "the actor acts in anger at the victim, and has good reason for being angry in virtue of some wrong or

impropriety suffered at this victim's hands" (p. 248). The wrong or impropri- ety must be a source of personal resentment, which means the injury or affront must be directed to the actor or someone close to him, that is, someone in whose welfare the actor has an interest. "The actor cannot claim the principle of resentment when he "punishes" someone for wrongdoing directed at third persons" (p. 254), for in that case mere indignation rather than resentment would be appropriate. Furthermore, the "good reason for

being angry" need only be a good reason with reference to what the actor believed (reasonably? honestly?), and not with reference to the actual facts.

Behind this principle of resentment looms a moral purpose. "Provocation becomes a persuasive claim when the actor's animus testifies to the soundness, not to the deficiency, of his moral judgment. It is where an actor both should feel angry and yet must try to control that justifiable anger that he or she becomes less to blame for overstepping the bounds" (p. 251). In a nutshell, when someone is right to feel angry and acts accordingly he will often be entitled to have that fact count in his favour.

The authors cite the public humiliation suffered by the cuckold or the victim of sodomy as exemplar cases, but the principle they offer applies

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324 The Cambridge Law Journal [1989]

much more broadly to victims of crime generally. Though these authors would presumably deplore such a consequence, the (partial) defence of

provocation might well be available to any victim of crime who later takes the law into his own hands. Indeed even torts, as well as other conduct for which there is no legal liability at all, may be the source of provocation according to the principle pronounced by these authors.

The explanation that is offered for a principle allowing such a state of affairs is this: "Blame is reduced because the actor was moved to transgress in part because of, rather than despite, his sense of right and wrong" (p. 251). We should all wish to allow for victims who are beside themselves with rage and lose control of themselves. That, however, is a concern about excusing which the authors correctly recognise as quite another matter. The resentment

principle is meant to recognise the actor's moral correctness and reward it

by having it count to some extent against the culpability of what he has done. This appears to rest upon a more general premise that culpability in the criminal law is a matter of the moral standing of what was done, and that

principles of liability are largely matters of assessing that moral standing and

meting out punishment accordingly. One need not raise questions about why and by what right a system of criminal justice should have moral assessment as part of its business, and how suited it is to undertake such work in any case. The consequences of the resentment principle speak eloquently enough when we notice that under it those justifiably angry people who take the law into their own hands are to be judged differently from those people who feel

exactly the same but in the end can't make as good a case for feeling aggrieved. The difference between these two is surely otiose from the point of view of any system of criminal justice that does not tolerate people taking the law into their own hands.

What can be said about the justifiably angry victim is this. His plight engages our sympathy and abates the force of the retributive emotion in us since we think that (to some extent at least) the victim of his retaliation had it coming to him. In this respect the case is quite different from that of the innocent victim of an act of retaliation that was prompted by a supposed grievance which turns out to be without foundation. The retributive emotion is, of course, a fact of life that criminal justice must take into account. Full- blooded provocations will often stir feelings of resentment, and when the hostile act it prompts was deserved, the grounds of retribution for the hostile act are removed and we then no longer feel quite as keen about punishing. This will seem unimportant to those who think that criminal justice must be concerned with making sure that people get what they deserve. It will appear much more important to those who think that criminal justice should take

advantage of moderated feelings in order to be more humane. In his essay Michael Moore takes the position that the retributive emotion

is a morally worthy response to crime. He argues with great elegance against each of the views of retribution that rest on good reasons for making sure there is retribution, and then proceeds to argue for the respectability of those

feelings that are normally regarded as an embarrassment by retributivists. In

giving moral primacy to the retributive emotion he makes it clear that such an emotion must be a morally worthy one according to certain independent criteria, and must not be "the black emotions of ressentiment" that Nietzsche discusses. He also insists on the expression of the emotion being trammelled by a properly enlightened state which has sole responsibility for administering the justice that retribution demands.

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Book Reviews Book Reviews

But resting the case for retribution on what morally worthy feelings would dictate really does seem an exceedingly dangerous move. Certainly we need not feel ashamed of feeling a certain way in response to what has happened, and often our feelings are important to help us carry through a course of action that is called for in the circumstances. Furthermore, our feelings may make it emotionally unacceptable for us to turn away without having made a suitable punitive response. The very fact that there is outrage in the face of impunity and that this outrage cannot be explained away is a good reason for not allowing impunity. This fact makes punishment morally acceptable. But it does not make punishment a moral imperative, as Moore would have it. If we can cause the retributive emotion to abate and so allow for more humane treatment, there is a moral imperative to do so, and to that extent punishment is morally unacceptable. The retributive emotion, then, is a constraint on humane dispensation from punishment, and as civilising influences affect our emotional life, we must redraw (as we always have) the boundary between punishment and impunity.

HYMAN GROSS.

Annual Review of Irish Law 1987. By RAYMOND BYRNE and WILLIAM BINCHY. [Dublin: Round Hall Press. 1988. xliv, 349 and (Index) 15 pp. Hardback IRf45-00.]

THE renaissance of Irish legal academic writing over the past ten years has been quite remarkable. When I read law at U.C.D. towards the end of the 1970s, the only home grown sources I can remember relying upon were Kelly's book on fundamental freedoms and a textbook on the legal system by V. T. H. Delaney. Most of our courses were structured around English textbooks; the job of lecturers seemed to amount to little more than the provision of a vaguely Celtic gloss. Early Smith and Hogan's were especially sought after because they dealt with the Larceny Act 1916, which was the law that still mattered in the Republic. Megarry and Wade was conveniently organised into short sections on the pre-1925 law followed by much longer pieces on the 1925 legislation. Blissfully unaffected by reform, we needed only to study the first little bits of every chapter, stopping when the going got difficult. Other works like Cross on Evidence and Cheshire and Fifoot enjoyed unedited dominance. We counted Salmond on Torts an Irish book, even though its editor was a T.C.D. man. All this began to change when Wylie's new book on Irish land law emerged. It quickly became essential reading. For some complicated reason, Wylie was not available in bookshops, so we queued for it in the dark corridors of the Arts Block as though it were samizdat literature. The same prolific pen then produced a vast work on conveyancing. The two books completely transformed the nation's knowledge of its own law of property. Deasy's Act, fee farm grants and other Irish phenomena emerged from the footnotes of British works to assume positions of deserved prominence. Just as importantly, the books showed what could be done. In the 1980s, the trickle of Irish academic writing became a torrent. There are now textbooks on tort, contract, equity, conflicts, family law, constitutional law, administrative law, labour law, commercial law, defama- tion, the Irish legal system and company law. There are specialist works on planning, pollution control, employment equality, political violence,

But resting the case for retribution on what morally worthy feelings would dictate really does seem an exceedingly dangerous move. Certainly we need not feel ashamed of feeling a certain way in response to what has happened, and often our feelings are important to help us carry through a course of action that is called for in the circumstances. Furthermore, our feelings may make it emotionally unacceptable for us to turn away without having made a suitable punitive response. The very fact that there is outrage in the face of impunity and that this outrage cannot be explained away is a good reason for not allowing impunity. This fact makes punishment morally acceptable. But it does not make punishment a moral imperative, as Moore would have it. If we can cause the retributive emotion to abate and so allow for more humane treatment, there is a moral imperative to do so, and to that extent punishment is morally unacceptable. The retributive emotion, then, is a constraint on humane dispensation from punishment, and as civilising influences affect our emotional life, we must redraw (as we always have) the boundary between punishment and impunity.

HYMAN GROSS.

Annual Review of Irish Law 1987. By RAYMOND BYRNE and WILLIAM BINCHY. [Dublin: Round Hall Press. 1988. xliv, 349 and (Index) 15 pp. Hardback IRf45-00.]

THE renaissance of Irish legal academic writing over the past ten years has been quite remarkable. When I read law at U.C.D. towards the end of the 1970s, the only home grown sources I can remember relying upon were Kelly's book on fundamental freedoms and a textbook on the legal system by V. T. H. Delaney. Most of our courses were structured around English textbooks; the job of lecturers seemed to amount to little more than the provision of a vaguely Celtic gloss. Early Smith and Hogan's were especially sought after because they dealt with the Larceny Act 1916, which was the law that still mattered in the Republic. Megarry and Wade was conveniently organised into short sections on the pre-1925 law followed by much longer pieces on the 1925 legislation. Blissfully unaffected by reform, we needed only to study the first little bits of every chapter, stopping when the going got difficult. Other works like Cross on Evidence and Cheshire and Fifoot enjoyed unedited dominance. We counted Salmond on Torts an Irish book, even though its editor was a T.C.D. man. All this began to change when Wylie's new book on Irish land law emerged. It quickly became essential reading. For some complicated reason, Wylie was not available in bookshops, so we queued for it in the dark corridors of the Arts Block as though it were samizdat literature. The same prolific pen then produced a vast work on conveyancing. The two books completely transformed the nation's knowledge of its own law of property. Deasy's Act, fee farm grants and other Irish phenomena emerged from the footnotes of British works to assume positions of deserved prominence. Just as importantly, the books showed what could be done. In the 1980s, the trickle of Irish academic writing became a torrent. There are now textbooks on tort, contract, equity, conflicts, family law, constitutional law, administrative law, labour law, commercial law, defama- tion, the Irish legal system and company law. There are specialist works on planning, pollution control, employment equality, political violence,

C.L.J. C.L.J. 325 325

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