Friday, June 5, 2009


It is a common view that if Fred could not have been reasonably expected to know that what he is doing is wrong, if his ignorance of the wrongness of the action is not his fault, then Fred is not culpable for what he did—though he may be responsible in some way other than culpability (e.g., obliged to make restitution). I am inclined to a much stronger view. If Fred does not believe that what he is doing is wrong, then Fred is not culpable for that action. This is true even if Fred knew that the action was wrong and brainwashed himself out of the belief in its wrongness precisely to escape culpability for the action. Of course, in such a case, he does not escape culpability for brainwashing himself with that end in view. But the wrongful deed that was the subject of his brainwashing does not add to his guilt. He is guilty only for the self-deceit, and he is guilty whether or not he goes on to do that further deed.

I do not know that I've met anybody else who endorsed that stronger view. But it is, I think, an unavoidable consequence of a strong denial of moral luck. Suppose one thinks, as one should, that, ceteris paribus, one incurs no more objective guilt by committing a murder than by attempting a murder. Then consider the following means of attempting murder: Fred hypnotizes himself into killing Patrick. In this case, the act of self-hypnosis is the act of attempting murder, since one does not act under hypnosis (I stipulate). If under hypnosis he kills Patrick, he has committed murder. But his murderous act was the act of committing self-hypnosis—it was an act done with the end that Patrick should die. (If this isn't clear, suppose that Fred hypnotizes Sally into killing Patrick. Then Fred's hypnotizing Sally is an act of murder, and Sally does not act in killing Patrick. But the same is true if Fred is both hypnotist and subject of hypnosis.) So if we deny moral luck, we have to say that he is no more guilty when he succeeds in hypnotizing himself into killing Patrick than when he does not succeed.

Now, suppose that instead of hypnotizing himself, Fred brainwashes himself into believing that he ought to kill Patrick, in order that Patrick may die. The act of self-brainwashing here is also an attempt, perhaps successful and perhaps not, to bring about Patrick's death. (This is really clear in the case where Patrick brainwashes Sally.) Therefore, Fred is guilty of a crime equal to murder, even if the attempt at self-brainwashing fails or succeeds but later on he doesn't carry through the deed. Suppose it all succeeds, though. Then Fred's act of killing Patrick is not a guilty act, though it is a wrongful one. Here is why. Fred has already committed an act equal to murder—the self-brainwashing with the intention that Patrick's death should result. If Fred's act of killing Patrick is a guilty act, then he has committed two acts equal to murder—he is doubly guilty. But that is multiplying guilt beyond necessity. Fred indeed is guilty of two things, but surely not of two acts equal to murder: he is guilty of one act equal to murder (namely, the self-brainwashing with lethal intention) and one act where he sins against himself (namely, by destroying his moral sense through self-brainwashing)—and he is guilty of both whether or not he goes on to kill Patrick.


Tim Lacy said...

I followed your argument quite well until you introduced the concept of "moral luck." The context of your introduction of the term seems to indicate a concept with some history in philosophy. I do not know that history. Will you enlighten me and perhaps others on this? I knee-jerk reaction is to say that "moral luck" is self-contradictory. According to some, morals occur in an individual both naturally and by teaching. In either case, no luck is involved. But if my reaction is too simplistic, feel free to ignore it.

From a Christian point of view, I like how this line of thinking correlates with the gospel (paraphrasing, if a man looks at a woman lustfully, he has already committed lust with her).

Notwithstanding my lack of understanding of "moral luck," there seems to be a problem with putting your line of thinking into legal practice. A person may have a flight of fancy about doing something horrible (murder or otherwise), but that can't be traced or punished in a material legal regime. This turns on how one defines attempt (i.e. materially or planned). But perhaps you want to avoid too many practical considerations at this point (e.g., furthermore, the idea of serial murderers and consecutive life sentences stemming from a traceable, brainwashing like deviation)?

As an aside, the use of murder here really leads one down some sad thought paths. - TL

Tim Lacy said...

In the first paragraph, I meant to write: "My knee-jerk reaction..." - TL

Alexander R Pruss said...

Moral luck is an umbrella term for the various ways that how well off we are morally depends on things outside of us. For instance, one kind of moral luck is involved in what kinds of moral dispositions we have--have we been brought up well, etc. I don't deny this kind of moral luck, though I don't like the word "luck" (for reasons of Providence). Another kind of moral luck is whether one has been tempted in certain ways or not. If George is the sort of person who would likely choose to commit a murder if he had a chance, we can say he was lucky he never had a chance. I don't deny this kind of moral "luck".

A third kind, whose existence I do deny, is when one's degree of moral culpability depends on what happens after one has made one's act of will. Thus, one can say that one was morally lucky that one's gun jammed when one was trying to commit a murder, because as a result one is not guilty of murder. I agree one is fortunate, but one is not morally better off. One is just as much, morally speaking, a murder when the gun goes off as when it does not.

However, I definitely do not think the law should erase the distinction between attempts and successes. There are pragmatic reasons. An obvious one is that if we punished murder and attempted murder in the same way, a criminal would have an incentive to "finish the job".

Actually, this pragmatic consideration does approximately track something of moral significance. Sally attempts to kill George, but her gun jams. She then fixes her gun and kills George. Morally speaking, she has done something worse than if she had stopped after the first attempt. She has made two attempts at George's life.

James said...

"But that is multiplying guilt beyond necessity".

This sounds almost like a razoresque principle applied in a moral sense. However, guilt seems a strange thing to talk about quantitatively to me. For suppose, for instance, an angel committed some fell deed which an infinite number of angels could have prevented but chose not to. It seems that an infinite "amount" of guilt could arise as a result of such an act. But then maybe that's so. Either way it does nothing to refute the OP, since one could argue for its being necessary for an infinite amount of guilt to be attributed to persons in such a situation. I'm just thinking out loud really and hoping someone might say something interesting as a result...

Chong Choe said...

Dr. Pruss,

I tend to agree that a person is morally blameworthy only for the bad acts that he commits knowingly and intentionally. So a person who hypnotizes himself or brainwashes himself with the intent of committing some bad act may be morally blameworthy for hypnotizing himself or brainwashing himself but, once in that state, he may not be able to form the mental state necessary to commit the act itself knowingly and intentionally. Let’s say the bad act is murder. Theoretically, he may be guilty of attempted murder (e.g., hypnotizing himself with the intent to kill) and a killing without malice (i.e., an intent to kill).

But, in practice, a person generally is not punished for their intentions, only their actions, and, when the focus in on outward actions, we can’t always be precise about intentions. Arguably a person is morally blameworthy for every murderous thought, but it would be impractical to count and distinguish each thought and punish the person accordingly. Intentions also may be continuous, rather than separate and distinct. A person may intend to kill another human being and perform a series of acts with that continuous intent (possibly varying or intensifying) before accomplishing the killing itself.

An attempt crime generally requires the intent to commit the act and a direct but ineffectual act toward its commission. Under the “merger doctrine,” an attempt merges into the completed crime. One is not punished for two crimes, but only the completed crime. So, strangely enough, in the hypnosis example, I think the person may be guilty of murder because he committed an attempted murder and a killing and, although he completed the killing under hypnosis, a reasonable fact-finder may find his initial intent to kill sufficient to find him guilty of murder. This seems right because you wouldn’t want a person to avoid culpability by devising ways to compromise his ability to form the requisite mental state.

I also would mention that voluntary ignorance through hypnosis or brainwashing is like voluntary intoxication. Voluntary intoxication cannot be used a defense to commit a crime, but it can be used to negate the mental state requirement. Three situations come to mind: (1) a person who voluntarily gets drunk with the intent to kill someone and succeeds; (2) a person who voluntarily gets drunk with the intent to kill and fails to do anything; and (3) a person who voluntarily gets drunk without the intent to harm anyone and gets into a bar fight with another man and kills him. In (1), the person is both morally responsible for getting drunk with the intent to kill and probably legally responsible for murder because he had the intent to kill and killed successfully. In (2), the person is not legally responsible, but he is just as morally responsible as the person in (1). The person in (3) may not be morally responsible (unless you find voluntary drunkenness morally blameworthy) and may not be legally responsible for murder, but he probably would be responsible for manslaughter (not malice, but criminal negligence).

Alexander R Pruss said...

Chong: That all sounds basically right to me.

bradley said...


You affirm this conditional: If Fred does not believe that what he is doing is wrong, then Fred is not culpable for that action. You argue for this by giving cases where it's true. And I think I agree that in your cases, you're right. But do you also affirm this universally generalized conditional: For all S, if S does not believe that what S is doing is wrong, then S is not culpable for that action? That seems much less plausible, and I don't see an argument for it merely from the denial of strong moral luck.

Moreover, I suspect that it's false. Here's a case: suppose that Alice has been told her whole life that it's wrong to torture people for fun. But she has an irrational distrust of people such that she never forms beliefs on the basis of testimony, including the belief that it's wrong to torture people for fun. One day, she does it. Is she culpable? I say yes. And there's no point prior to the torture where she's culpable for torturing people for fun.

Alexander R Pruss said...

I affirm the general case, yes. Here's one way to do this. Take my case where Fred brainwashes himself into thinking murder is OK, so that he would commit it. In order for his guilt not to be counted twice, we need to say that he did culpably wrong was at the brainwashing stage, not at the murdering stage.

Now take a continuum of cases where his culpability for the brainwashing decreases to zero. Since the brainwashing is the locus of all the culpability, his culpability simpliciter decreases to zero. And at the end we have a case kind of like Alice. (Actually, I think there is a moral failing in not trusting people. But is she culpable for that failing? Maybe not--but the case needs more filling out.) It would be weird if somewhere in the continuum the locus of culpability were to jump from the brainwashing to the murder. It seems to me that the more the brainwashing is not culpable, the more it's relevantly like a case where the brainwashing has an external cause.

Torture is a bit tricky, though, because one cannot not know that the torture causes a harm. If one does not know that it causes a harm, then one is not committing torture--one is accidnetally hurting someone. Now, maybe, one can know that causes a harm but isn't wrong. But it's still a bit tricky, because some folks think it's only torture if it's done with an evil end. I think your case can be fixed up.