By Larry Alexander
This publication offers a entire evaluation of what the legal legislation might seem like if equipped round the precept that those that deserve punishment may still obtain punishment commensurate with, yet no more than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that barren region is a functionality of the actor's culpability, and that culpability is a functionality of the dangers of damage to secure pursuits that the actor believes he's implementing and his purposes for performing within the face of these hazards. The authors deny that resultant harms, in addition to unperceived dangers, have an effect on the actor's wilderness. They therefore reject punishment for inadvertent negligence in addition to for intentions or preparatory acts that aren't dicy. Alexander and Ferzan speak about the explanations for enforcing dangers that negate or mitigate culpability, the individuation of crimes, and omissions. They finish with a dialogue of principles as opposed to criteria in legal legislations and provide an outline of the form of felony legislations within the occasion that the authors' conceptualization is placed into perform.
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Extra info for Crime and Culpability: A Theory of Criminal Law
4. Demented likes to expose others to risk. He has concocted his own version of Russian roulette in which, when he pulls a switch, he creates a risk of magnitude R/100,000 that an innocent person will die or be severely injured. Now if the substantiality criterion is truly independent of the justifiability criterion, then there must be some level of risk imposition below which the actor cannot be reckless. Suppose that level is just above R/100. In case 1, Driver does satisfy the substantiality criterion but may escape the judgment of recklessness by failing to satisfy the (lack of) justification criterion.
The latter purpose seems worse than the former. Combine this insight with the facts that (1) the risk the actor estimates of successfully accomplishing his purpose can vary from just > 0 to 100 percent, and (2) the actor’s ulterior purposes (the further purposes his purpose to harm serves) can vary in their positive or negative weight, and it seems almost beyond cavil that some cases of culpable purpose are less culpable than some cases of recklessness. 30 III. A Uniﬁed Conception of Criminal Culpability Criminal culpability is always a function of what the actor believes regarding the nature and consequences of his conduct (and the various probabilities thereof) and what the actor’s reasons are for acting as he does in light of those beliefs.
For him, the freewill-determinism puzzle will always dog practices of holding people morally responsible, practices that we nevertheless cannot imagine dispensing with. 22 20 21 22 See Daniel Clement Dennett, Freedom Evolves 9–13 (2003) (providing a naturalized, evolutionary account of these capacities without using the term “compatibilism”). , Wallace, supra note 16, at 87–95. See also Victor Tadros, Criminal Responsibility 67–70 (2005). Alexander’s position is thus that neither determinism nor indeterminism can provide a satisfactory account of moral responsibility, and together they appear to exhaust the possibilities.