Character, Liability, and Morally Unreachable Agents

This paper will explore the relation between some issues of moral psychology, responsibility for action, and criminal liability. At the center of the discussion is the question of what we are to make of agents whose offending is grounded in their endorsement of wrong values or indifference to the values reflected in criminal law, rather than what appear to be, say, lapses of self-control, pathology, provocation, or negligence. There are agents who have vices such that they do not acknowledge their offenses as wrongs, but they are neither less than rational nor involuntary agents. These are people who are very bad but not psychologically disordered in a manner that constitutes excusing or exempting conditions. I want to show that there are grounds for holding such offenders liable. I shall proceed by giving a characterization of the relevant type of agents and then look at some of the considerations in favor of regarding them as liable despite their apparent incapacity to act rightly. The following are among the key claims argued for: (a) Agents can be voluntary, rational actors even though their states of character may constitute genuine limits on how they can act. (These are limits apart from such things as opportunity and what is causally possible in the broad sense.) (b) Some agents are firmly established in vicious character states and are thus morally unreachable in important respects, though not insane, psychopathic, or otherwise candidates for diminished responsibility. They have voluntarily become unreachable though without intending to become so. (c) A distinction between what I call the availability and the accessibility of values helps explicate why some unreachable agents are responsible and not to be excused from liability. (d) Although natural temperament and social conditions help to illuminate why an agent has become morally unreachable, the agent's voluntariness can still have a substantial role in explaining his character in ways that underwrite the the agent's liability. (e) It is difficult to ascertain if an agent is morally unreachable, but we can distinguish between conditions that defeat an agent's voluntariness and liability and those that do not. This discussion is intended to be relevant to questions of legal liability and moral responsibility more broadly. I hope that the characterization of the phenomenon in question and the examples offered provide a framework for pursuit of specific legal issues beyond what is presented here. I Character's Role in Practical Necessity and Possibility In order to begin clarifying and substantiating the above claims I should indicate the main moral psychological categories into which agents who act wrongly might fall. There are: (1) morally decent agents who infrequently commit wrong acts that they themselves recognize and regret as lapses; (2) dispositionally incontinent agents; (3) vicious agents capable of remorse and of acknowledging their wrongs; (4) pathological agents whose conditions are at least partially excusing or exempting; and (5) vicious agents who are seemingly incapable of remorse and acknowledgment of their wrongs but not in ways that excuse or exempt. (1) With this last class of agents, their cognitive and motivational limitations are brought about through their own voluntary activities and their endorsement of the (wrong or perverse) values upon which they act. These are agents whose characters are firmly fixed in vice in such ways that they do not, and perhaps cannot, recognize their wrongful acts as wrongful except in the sense that these agents are aware that their actions are regarded as wrongful by many others or by society generally. These agents have come to have vicious characters through their own voluntary activity even though they did not at any point intend to acquire vicious characters. They are not victims of brainwashing or coercion and they are not afflicted with compulsions or diseases of a sort that would constitute excusing conditions. …