Moral Responsibility and Political Freedom

Editorial Committee of the Cambridge Law Journal

Moral Responsibility and Political FreedomAuthor(s): Bernard WilliamsSource: The Cambridge Law Journal, Vol. 56, No. 1 (Mar., 1997), pp. 96-102Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law JournalStable URL: http://www.jstor.org/stable/4508302 .

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Cambridge Law Journal, 56(1), March 1997, pp. 96-102 Printed in Great Britain

MORAL RESPONSIBILITY AND POLITICAL

FREEDOM*

BERNARD WlLLIAMSt

In the phrase "moral responsibility", the term "moral" can register two different ideas. On the one hand, it may introduce a particular field of application and a corresponding class of consequences, which

are informal and social rather than formal and supported by force.

Used in this way, "moral responsibility" is distinguished from legal

responsibility. A quite different use of the term is involved when

"moral" is introduced to imply a certain basis of assessment, one that

places particular emphasis on the voluntary. In this sense, moral

responsibility can be proposed as a basis of assessment even when

what is in question is legal responsibility, for instance in relation to

the criminal law.

When the first idea is dominant, and a contrast is being stressed

with (in particular) the legal, there need be no special emphasis on

voluntary agency. Someone may be said to be morally, but not legally,

responsible for an omission, or for the consequences of having carelessly led someone to form a particular expectation. However, when, in the second sense, it is urged that moral responsibility should be the basis of assessing responsibility in the criminal law, the stress is on voluntariness. This will be the principal concern of this paper.

I have argued elsewhere1 that any conception of responsibility involves four elements: cause, intention, state, and response.

If a conception that is brought to bear on an agent with respect to a given outcome is to count as responsibility, as opposed to other notions such as that of a scapegoat, the agent must, basically, be

regarded as the cause of the outcome. There are exceptions to this, when under legal arrangements responsibility is transferred, ascribed, assumed, etc, and responsibility can be undertaken at one remove, as in most situations of strict liability. The present discussion is confined to the basic case, personal responsibility in which the agent is the cause ofthe outcome in question.

The Aquinas Lecture of the International Society of Criminology, delivered in Cambridge on 5 May 1994, and hosted by the University of Cambridge Institute of Criminology. Emeritus White's Professor of Moral Philosophy, University of Oxford; formerly Provost of King's College, Cambridge. Williams, Shame and Necessity (Berkeley 1993), chapter 3.

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Moral Responsibility and Political Freedom

The distinction between intention and state is one between what an agent means to do (and whether he means to do a certain thing at all), and what state of mind he is in when he means to do it and does it.2 The distinction is important, though it can be indeterminate in particular cases whether we are concerned with intention, or state, or both. A man who in a fit of rage destroys a vital and irreplaceable document may, for that moment, not have realised what he was doing, or he may have known what he was doing and for that moment not have cared; or there may be no reason to say one of these things rather than the other. In certain states, intentional action is not possible at all. Michael Moore3 has claimed this for all somnambulistic and hypnotic states, but this is surely an exaggeration; the significance of such states for the criminal law is not so much that agents in those states can do nothing intentionally but rather that the intentional acts that they do in those states do not bear a regular relation to their plans or character.

Response means what is expected, demanded, or required of the agent, or is imposed on him. In some cases, notably under the criminal law, this is identified as punishment. The present discussion will concentrate on this example, but it is important that it is not the only response recognised in relation to responsibility, or indeed to moral responsibility.

A conception of criminal responsibility in terms of moral responsibility sets requirements on the intention and the state of the agent which together mean that the action has to be voluntary. "A does X voluntarily" is equivalent to "A does X intentionally in a normal state of mind". The inherent vagueness of this will be of concern later.

It is a significant question, well known in relation to no-fault divorce, car insurance and so forth, whether in a given area we should be using a conception of responsibility at all. However, those who lay emphasis on the notion of moral responsibility do not typically see things in this way. Moral responsibility is thought, as it were, to apply itself. The consequence of this attitude is that if the causality, the intention and the state are of a certain kind-if the agent is voluntarily the cause of certain kinds of outcome-then this in itself is thought to attract the appropriate response. Where the response is punishment, this is a version4 of the retributive theory of punishment. This

2 It is illustrated in Shame and Necessity by the contrast between two agents in Homer: Telemachus, who carelessly left a door open, and Agamemnon, who took Briseis away from Achilles, and indeed meant to do so, but was (he later claims) in a strange state of mind when he did so.

3 Moore, Act and Crime. The Philosophy of Action and its implications for Criminal Law (Oxford 1993), pp. 253 seq. For a discussion of this and related views of Moore's see the symposium in 142 University of Pennsylvania Law Review (1994), pp. 1443-1840.

4The voluntaristic version. Retribution is not necessarily confined to the voluntary: see below, p. 100.

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"internalism" or criterial self-sufficiency is a general feature of conceptions associated with the moral. Here, as with moral judgement and moral merit, the morality system tries to sustain the idea that there is no relevant external point of view from which its determinations can be assessed.

This idea cannot entirely be sustained; we need a reasonable external perspective on the practices and provisions of moral responsibility. Moral responsibility gets some support from the fact that the principal candidate as an alternative to it in the criminal law is a direct Utilitarian treatment of particular cases, and this is much more unattractive than moral responsibility. As Hart5 pointed out, however, consequentialist arguments can be applied at a more general level. Bentham's own higher-level Utilitarian argument for restricting punishment to voluntary offences-that only voluntary offences can be deterred-is unsound, since a practice of punishing the involuntary might in fact help to deter voluntary offences, through a chilling effect. However, Hart offered a better argument, which invokes not just welfare but freedom. This is based on the principle that citizens should be able to conduct their affairs so far as possible without the state's power being unpredictably directed against them. This rationalises other things as well, such as a ban on retrospective legislation and the requirements that the laws should be comprehensible and as far as possible well-known.

This argument relates very directly to the value of political freedom: that is to say, to the citizen's freedom with respect to intentionally directed uses of state power. It is not an argument simply in terms of maximising freedom across society. One of the effects of undeterred crime is to decrease people's freedom, and a straightforwardly maximising calculation would have to weigh these effects of crime against the limitations of freedom imposed by the law's willingness to punish the non-voluntary.6 The argument implies, rather, a particular responsibility of the state with respect to the use of its own power, a responsibility which, I take it, will be claimed by any version of liberalism. This is not the place to set out a political theory of liberalism; the point is only that it is political theory that grounds this aspect of moral responsibility.

The argument is thus specially concerned with state power, as opposed to other power that might curtail a citizen's freedom; but it is also, more specifically, concerned with the intentionally directed use of state power. It may be said that citizens anyway suffer to an indefinite degree from side-effects of state power. This is true, but the

Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford 1968), esp. ch. 2. 6 I am grateful to Antony Duff for making this point in the discussion of the Aquinas Lecture.

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distinction between being the object of someone's power and being affected incidentally by someone's activities is in general significant with respect to freedom, as emerges in the very primitive connections between lacking freedom, being in someone else's power, and being subject to that person's will. The condition of being politically free in a certain regard is not, in the first instance, that of being unaffected by what the state does; it is, rather, a condition in which the state's intention does not forcibly become one's own intention. Why this distinction also should be important is once again a matter of political theory.

It is an argument in political philosophy, then, that will provide external considerations to support the criteria of moral responsibility. The argument applies specially to criminal punishment, with regard to which there cannot be such things as no-fault insurance. You cannot insure to compensate the victims of your criminal acts, and although the state can do so, there are severe limits to this; there is also a limit in political justice, since it is likely to represent an arbitrary transfer of resources via the insurance fund at the criminal's will, if not to the criminal.

The argument for moral responsibility in relation to legal punishment will be: granted a justification for punishment such as deterrence, demands of transparency imply a system of public punishment applied to criminal agents; political freedom implies, further, that it should be applied to voluntary agents.

It is clear, however, that punishment is not explained entirely in terms of deterrence. Much of it represents the expression of anger, and when it is properly conducted it is regarded as the rightful expression of rightful anger. This truth can presumably be said to yield a "retributive theory" of punishment. It is less clear that it yields a retributive justification of punishment. It may rather be that if one accepts the retributive theory, one stops looking for a justification of punishment as such, although one may well look for justifications of particular practices: one may, for instance, be opposed to long intervals between act and punishment. A serious difficulty is that it may turn out that no just procedure in a modern state can adequately express retribution, and this is a point that will concern us later.

What are called "retributive justifications" of punishment often make it seem as though there were some illuminating description of what is done by punishment under retribution, as when it is said that punishment will "show him" or "teach him a lesson".7 These are

"Turn him round with regard to values" is Robert Nozick's phrase in Nozick, Philosophical Explanations (Harvard 1984), at pp. 363 seq. For further comment on the present lines, see "Nietzsche's minimalist moral psychology", European Journal of Philosophy 1.1 (1993), reprinted in Williams, Making Sense of Humanity (Cambridge 1995).

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consequentialist misdescriptions of what is in fact, on the retributive account, an intransitive process. On the retributive understanding of it, nothing is essentially done by punishment except to hurt the recipient. He is, it is claimed, rightfully hurt, but the criterion of that is not what punishment does, but what he has done.

It is worth saying that a purely denunciatory theory of punishment seems not to be a theory of punishment, unless denunciation is in itself sufficiently painful to be the punishment. The idea that traditional, painful, punishments are simply denunciations is incoherent, because it does not explain, without begging the question, why denunciations have to take the form of what Nietzsche identified as the constant of punishment, "the ceremony of pain".

With a retributive understanding of punishment, the argument for moral responsibility, grounded in political freedom, still goes through. (There is a difference in the argument when it is expressed in terms of retribution rather than deterrence. When the justification is deterrent, we need an extra premiss about transparency, since social mechanisms such as deterrence (as Utilitarians often remind us) do not have to be declared to be effective; legal retribution, on the other hand, is essentially public.)

The argument from political freedom for the criteria of moral responsibility is still available under a retributivist understanding of punishment; more important, it is still necessary. This is not because we still need an argument for punishment. On a retributivist view, we already have all the argument for punishment (in principle) that we are going to get-though there remains the important question whether defensible legal procedures can adequately express retribution. The reason why we still need the argument for moral responsibility is that retribution does not have to be directed to voluntary acts. This is easily overlooked, because the presence of intention on the part of the agent is important to the psychology of retribution. Yet voluntariness cannot be strictly necessary, since retributive feelings easily extend to a reckless agent with respect to the actual outcome, and not simply to the recklessness itself.

Moreover, even when the agent had the relevant harmful intention, retribution is less sensitive than moral responsibility is to his psychological state. One aspect of "heinousness" is the awfulness of the act, and with awful actions retributive considerations can be fairly insensitive to state. Another aspect of heinousness, however, is premeditation, and some of the considerations associated with this are on the borders of state and intention, as are questions about impulsive acts: was the agent's state such that he did not know what he was doing, or such that he momentarily did not care that he was knowingly doing that thing?

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C.L.J. Moral Responsibility and Political Freedom 101

If we think that retributive punishment should be constrained by attention to moral responsibility, this does not simply follow from

what retribution is (at least so far as many questions about the agent's state are concerned), but rather from the argument already used in

reiation to deterrence, the argument that relies on political freedom.

As I have already mentioned, there is a serious issue about the

operation of retributive punishment in a modern society. A partial truth contained in expressive or denunciatory accounts of punishment is that retribution has to be seen as such if it is to have any point at

all. But if judicial process requires opportunities of appeal that take a

long time, and if, relatedly, limitations are set on the forms that

punishment can take, it is very unclear that what actually happens can

match anyone's idea of retribution. In a sense, the paradigm of

retributive punishment is a lynching, under the condition that the right

person is being hanged. It was, notoriously, never easy to make sure

of meeting that condition. Under modern demands on what counts as

being sure of meeting that and other conditions, even an execution, if

executions are allowed at all, is not going to reach the expressive standard of a lynching. But there is no road back from modern

demands on justice in their general outlines, even if particular practices can be modified. The point here is not that retribution is inherently evil or primitive or irrational. It is simply that no punishment under

modern conditions can really be retribution. Those who think that

punishment has a lot to do with retribution should, correspondingly, ask whether anything done to an offender under modern conditions

can really be punishment. Even if we have a general argument for moral responsibility we

must recognise that its effects are severely restricted by the limitations of the concept of the voluntary itself. That concept is effective up to a

point, but it is both vague and superficial. These are two different considerations, There is great indeterminacy and vagueness about the agent's psychological state and the soundness of associated

counterfactuals, as in the case of "irresistible impulse" and other areas

of obscurity lying between state and intention. There are unanswerable

questions about what is "normal" for a given agent, and disputes about the degree to which this should count.

The concept of the voluntary is also superficial, because even if it is established that the agent's action was intentional in a normal state

(e.g. highly premeditated), there is a further question of why he is someone who can want to do such things, whether it is in his control that he is such a person, and so on. It is clear that if voluntariness is to do its work such questions cannot be pressed beyond a certain

point. It is not that they get a favourable answer, as free-will libertarians suppose, nor that they get an unfavourable answer which



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puts moral responsibility out of business. Nor again is it, as some

reconcilers perhaps suppose, that there is a transparent rationale for

construing the voluntary within certain limits that exclude those

questions. It is simply that the voluntary is an inherently superficial

concept which should not be asked to do too much.

I do not suppose that this fact makes punishment under these

shallow conditions of voluntariness in itself unjust. But there is a real

question about what punishment can mean, and whether it can mean

what most people want it to mean. It is with negative desert as Nozick

rightly said it was with positive desert: it does not go all the way down.8 We can draw some lessons from this for moral responsibility. We can use the notion; we should not push questions associated with

it too far; we should not insist on its merits in cases where its

weaknesses come under pressure, if there is something else that will

meet our needs better; and above all, we should not make a grandiose

mystery out of it.

Of course, in that last recommendation, there is a significant

judgement. It is perfectly possible for people to agree with most of

what I have said, and disagree with this judgement, because they think

that the only way of keeping moral responsibility going is by making a grandiose mystery out of it. I do not believe this, both in the sense

that I do not think that in the modern world one can get away with it, and also because I think that certain values that make it impossible to

get away with it also make it a bad thing to want to get away with. Both I and my hypothetical opponent reject traditional, in particular traditional enlightenment, attempts to rationalise moral responsibility

thoroughly, but one's attitude to the enlightenment, here as elsewhere, is finally a matter of one's attitude to political honesty.

Moral responsibility has a function, and there is much to be said for its doing some of the work of ascriptions of responsibility and

dealing with our responses to offences, so long as one does not take it

too seriously. But if one accepts the idea of moral responsibility, this

is often taken to imply that moral responsibility is self-applying and does not need or permit any external justification or assessment; that it is profound, or can be made so; and that it is the ideal in terms of which other institutions are to be judged and to which they should try to approximate. All of these further conceptions are false. If moral

responsibility necessarily involved these conceptions, it would have to

be abandoned.

Nozick, Anarchy, State and Vtopia (Basic Books 1974), p. 225.



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Moral Responsibility and Political Freedom