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RESPONSIBILITY AND PUNISHMENT
THIRD EDITION
LIBRARY OF ETHICS AND APPLIED PHILOSOPHY
VOLUME 9
Managing Editor:
Govert A. den Hartogh, University of Amsterdam, The Netherlands
The titles published in this series are listed at the end of this volume.
RESPONSIBILITY
AND PUNISHMENT
by
CA, U.S.A.
THIRD EDITION
San Diego
J. ANGELO CORLETT
Professor of Philosophy and Ethics,
,
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN-10 1-4020-4147-0 (HB)
ISBN-13 978-1-4020-4147-1 (HB)
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For My Mother
Diane Bellotto Corlett
TABLE OF CONTENTS
Preface ix
Introduction 1
CHAPTER 1: The Problem of Responsibility 11
CHAPTER 2: The Problem of Punishment 27
CHAPTER 3: Foundations of a Kantian Retributivism 49
CHAPTER 4: Assessing Retributivism 71
CHAPTER 5: Forgiveness, Apology, and Retributive Punishment 107
CHAPTER 6: Capital Punishment 131
CHAPTER 7: The Problem of Collective Responsibility 147
CHAPTER 8: Corporate Responsibility and Punishment 165
CHAPTER 9: Collective Wrongdoing, Reparations,
and Native Americans 183
Conclusion 227
List of Sources 231
Index 249
PREFACE TO THE THIRD EDITION
I am grateful to Joel Feinberg and Keith Lehrer for incisive comments on an
early version of the contents of Chapter 4. I am grateful to Feinberg, Margaret
Gilbert, Lehrer, James Nickel, and Burleigh Wilkins for helpful comments on
earlier sections or drafts of Chapter 7. A section of this chapter was presented at
the Conference on War, Collective Responsibility, and Inter-Ethnic Reconciliation,
University of Belgrade, Belgrade, Yugoslavia, 27 June 1998. Another section
The contents of this book represent nearly twenty years of studying and
assessing critically philosophical work in the areas related to responsibility and

punishment theories. Certain chapters or sections of chapters of this book
contain materials that I have contributed to various philosophy journals or other
sources. For example, the contents of Chapter 3 consists of a revised version of
an essay by the same title published in The Southern Journal of Philosophy to
which thanks are expressed for the use of it herein. Substantial sections of
Chapter 4 consist of my essay, “Making Sense of Retributivism,” Philosophy,
76 (2001), pp. 77-110, and gratitude is expressed to the Royal Institute of
Philosophy, London, and Cambridge University Press, for use of it here.
Chapter 5 is a revised version of an article having the same title forthcoming in
the American Philosophical Quarterly, and gratitude is expressed to North
American Philosophical Publications, Inc., for kind permission to use the
contents of that article herein. The content of Chapter 7 is a revised version of
“Collective Moral Responsibility,” in A. Jokic, Editor, From History to Justice
(New York: Peter Lang Publishers, 2001), pp. 305-18. The contents of Chapters
7-8 are essentially revised forms of articles by the same titles from the Journal
of Social Philosophy, and gratitude is expressed to Blackwell Publishers for use
of both articles in this book. Chapter 9 contains substantial material from
“Reparations to Native Americans?” in A. Jokic, Editor, War Crimes and
Collective Wrongdoing (London: Blackwell Publishers, 2001), pp. 236-69. I am
thankful to Blackwell Publishers for use of that material in this work. The “List
of Sources” represents a comprehensive list of sources I have consulted over
the years in my writing and revision of this book. I have made every attempt to
give credit where credit is due concerning the ideas presented herein where
ideas have, as far as I can discern, originated with authors other than myself. I
beg the apologies of those philosophers whose work was not consulted or cited
that pertains to the issues dealt with in this book. I have, however, made an
ardent attempt to consult as many philosophical sources as possible that
concern responsibility, punishment, and related topics.

PREFACE
X
was presented to The Serbian Philosophical Society, 1 July 1998. I am grateful
to the participants of each session for their valuable comments, especially those
from Jovan Babic, David Cooper, Aleksandar Jokic, Natalija Micunovic,
Michael Slote, and Svetozar Stojanovic. For helpful comments on versions of
Chapter 9, I am grateful to Robert Audi, Bernard Boxill, Anthony Ellis, Gilbert,
Richard W. Miller, Jan Narveson, Nickel, Rodney C. Roberts, Slote, and Wilkins
for incisive comments on earlier drafts of this chapter. Parts of this chapter in
earlier draft forms were presented at the Canadian Society for the Study of
Practical Ethics, Canadian Learneds Society, 1997, and at the Conference on
War Crimes: Legal and Moral Issues, University of California, Santa Barbara,
1997.
I am grateful to Ishtiyaque Haji who provided critical insights on the First
Edition of this book by his supportive assessment of it in Mind, 111 (2002), pp.
847-52. I am also grateful to The Royal Institute of Philosophy in London for
the adaptation of part of my “Making More Sense of Retributivism,” Philosophy,
78 (2003), pp. 277-85, on the nature of desert to the discussion of desert in
Chapter 4 of this edition. For final proofreading and indexing of this edition, I
owe thanks to Eduardo Salazar and Fernando
Serrano.
This edition features an updating of material on responsibility theory, a
revision of some of the principles of proportional punishment in the defense of
my own version of retributivism, some revisions concerning my conception of
desert in light of recent philosophical work done on desert theory, a complete
re-writing of the chapter on forgiveness and mercy in light of recent work done
in this area, and a new chapter devoted to capital punishment. All in all, strong
efforts have been made to address many of the issues found in the most recent
philosophical literature on responsibility and punishment.
To those who might find the contents of this book, in whole or in part,

worthy of their philosophical reflection and critical scrutiny, I express my
sincere gratitude, in advance, to you.
J. Angelo Corlett
San Diego, CA
Autumn, 2005
INTRODUCTION
Few social problems today seem to cause as much dissension among people as
the problem of punishment. As crime rates soar in various countries around the
world such as the United States of America, some of the republics of the former
Soviet Union, Brasil, Colombia, the United States of Mexico, and the United
Kingdom, reports of violent crimes have become commonplace. What should
be done in order to solve the problems associated with crime? A comprehensive
answer to this question is not offered in this book. For such an answer would
not only involve providing answers to an array of sociological and
psychological questions about human behavior and motivation, and how to
counter-balance the myriad of motives concerning why criminals commit
wrongful deeds, but it would entail a plausible theory of how we ought to act,
and why, so that crimes can be effectively minimized. These and other queries
concerning the solution to the problem of crime are beyond the scope of this
book. Rather, this book is primarily concerned with some of the problems of
responsibility and punishment, and it makes no pretensions as to how the
problems of crime ought to be solved.
1
Since crime is a fact of life in every
sizeable society, this project takes on the task of analyzing philosophically the
natures and justifications of responsibility and punishment. For if the problem
of crime itself cannot be solved, the least we owe ourselves is a proper
understanding of how best to respond to some crimes, and plausible reasons
why punishment is either justified or obligatory to the extent that it is inflicted
on responsible agents.

The cluster of philosophical issues that constitute the problem
of punishment has posed challenges to philosophers and legal scholars
2
John Rawls’
3
invaluable distinction, echoed by Stanley Benn
4
and
1
Obviously, there is a sense in which punishment may to some extent and in some cases deter
crime, thereby serving as a partial solution to the crime problem. However, I construe
punishment in terms of the state's response to crime, rather than as a preventative solution to
it.
2
Anthony M. Quinton, “Punishment,” Analysis, 14 (1954), pp. 133-142 [ cited in Joel Feinberg,
“On Justifying Legal Punishment,” in Carl J. Friedrich, Editor, Responsibility (New York:
The Liberal Arts Press, 1960), p. 161, note 5].
3
John Rawls, “Two Concepts of Rules,” The Philosophical Review, 64 (1955), pp. 3-13.
Pagination for purposes of this book is found in John Rawls, Collected Papers, Samuel
Freeman, Editor (Cambridge: Harvard University Press, 1999), pp. 20-46.
4
Stanley Benn, “An Approach to the Problems of Punishment,” Philosophy, 33 (1958),
pp. 325-41.
1
for generations, and includes such matters as Anthony M. Quinton’s and
INTRODUCTION

2
H. L. A. Hart,

5
respectively, between the justification of the institution of
punishment and the justification of particular forms of punishment. Under this
twofold distinction of questions concerning punishment fall a number of
other important queries, such as “What is the nature of punishment?” “What is
the function of punishment?” “What is the legal justification of punishment?”
“What is the moral justification of punishment?” “How ought punishments to
be meted out?” These questions, taken cumulatively, constitute questions that
some have argued are required for a theory of punishment.
6
Providing answers
to these and related questions concerning the problem of punishment not only
reveals a conundrum of philosophical theories that compete with one another to
answer plausibly the problem of punishment, but they also show how
dependent at least some of the these punishment-related issues are for their
answers on the concept of responsibility.
Although much has been gained in the history of philosophical discussions
regarding responsibility and punishment, there remain some basic confusions.
In recent years, for instance, many philosophers have launched attacks against
retributivism. Such critical discussions include the objections that retributivism
is uniquely problematic in that it relies essentially on the dubious notion of
desert, and that retributivism faces the unique difficulty of devising an adequate
theory of proportional punishment. To be sure, others have even argued or
implied that retributivism is implausible because it fails to account for the ideas
of forgiveness and mercy, while still others seem to condemn retributivism
because it entails, they believe, some notion or other concerning vengeance.
These are among the most important objections to retributivism, and each
requires careful consideration in order to establish the status of retributivism’s
overall plausibility as a theory of punishment.
In the interest of philosophical charity and fairness, I seek to defend a

version of retributivism that might rightly be termed “Kantian” in that it draws
significantly, though not entirely, from some of Immanuel Kant’s words on
punishment. I argue that some of the previously mentioned objections to
retributivism misattribute to retributivism some feature or other that retribu-
tivists neither do not nor need not hold. This is surely the case, for example,
regarding the assumption that retributivism entails vengeance, that is, if Joel

5
H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), Chapter
1.
6
Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review, 87
(1987), pp. 510-11.
INTRODUCTION
3
Feinberg’s
7
and Robert Nozick’s incisive distinction between retribution and
vengeance is plausible.
8
It is also disingenuous to think that retributivist theories of punishment
cannot accommodate the concepts of forgiveness and mercy and are therefore
problematic on moral grounds. It is certainly conceptually possible to hold, for
instance, that the state has a right and imperfect duty of justice to punish
criminals, while at the same time argue that the state can exercise forgiveness
and mercy toward criminals under certain circumstances of justice. One
important question such a theory would face is how seriously it takes moral and
legal responsibility of individuals and collectives. But we must never presume
that forgiving a person, criminal or not, is always the right thing to do.
Perhaps the greatest confusion in responsibility and punishment theories

seems to be the assumption that retributivism suffers uniquely from the often
perceived “malady” of being based substantially on the controversial notion of
desert. However, there seems to be no plausible positive theory of punishment
that would not base itself on the concept of desert. For if it did not, then it
would be subject to the problem of justifying the state’s inflicting hard
treatment on innocent persons, i.e., those who do not deserve hard treatment. In
Rawls’ words, it would justify the infliction of “telishment” (e.g., punishment
of innocent persons).
9
So whatever turns out to be the most (and adequately)
plausible analysis of the nature of desert seems to be foundational to any
plausible positive theory of punishment. And if there are difficulties with the
notion of desert, they do not plague retributivist theories alone. What theory of
punishment, in other words, would dare insist that desert is not essential to who
is and who is not rightly punishable? The real question about desert is not
whether or not it is crucial to a plausible theory of punishment, but precisely
what is the nature of desert? To this end, I proffer my own analysis of desert as
moral responsibility coupled with proportional punishment. The details of this
concept are worked out in Chapter 4.
Similar things might be said of the objection to retributivism concerning
proportional punishment. It is a grand confusion indeed to think that only
retributivists face the daunting challenge of having to provide a plausible
account of proportional punishment. Of course, what counts as proportional
punishment is linked to the idea of desert. For the extent to which a criminal

7
Joel Feinberg, Editor, Reason and Responsibility (Belmont; Dickenson Publishing Company,
Inc., 1965), pp. 296-99.
8
Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp.

366-68. The more general point that punishment is not revenge is made in Ted Honderich,
Punishment, Revised Edition (London: Penguin, 1976), p. 14.
9
Perhaps what Rawls has in mind here are the words of F. H. Bradley: “Punishment is
punishment only where it is deserved” [F. H. Bradley, Ethical Studies, Second Edition
(Oxford: Oxford University Press, 1927), pp. 26-7].
INTRODUCTION

4
ought to be punished should always be a matter of what she deserves, as
opposed to what she does not deserve. Moreover, it is interesting to note that
retributivists such as Kant have not directly devoted as much of their writing to
the problem of proportional punishment as the utilitarian Jeremy Bentham.
Clearly, any positive theory of punishment, retributivist or not, must concern
itself with the nuances of proportional punishment. As with the concept of
desert, so with the concept of proportional punishment: the question is not so
much whether or not a theory of punishment ought to provide an account of
proportional punishment. Rather, the more important question is which analysis
of proportional punishment is most plausible, and why? Furthermore, can
retributivist theories of punishment be made congruent with the most plausible
account of proportionality? In Chapter 4, I discuss some issues of proportional
punishment, and provide a set of principles that are designed to serve as a
propadeutic to thinking about proportional punishment from a retributivist
standpoint.
Having noted some of the clarificatory contributions of this book, I now turn
to a summary of the general flow of argument herein. The basic argument of
this book will be that the anti-retributivist arguments considered herein either
commit a straw person fallacy, refuting a version of retributivism that is so
extreme that not even Kant (in the minds of most philosophers, a paradigmatic
retributivist) would subscribe to it, or that such objections count equally against

every positive theory of punishment (or both). After warding off some of the
most important criticisms of retributivism, I set forth a Kantian version of it
that, though somewhat less stringent than Kant’s in at least some vital respects,
nonetheless evades the objections typically raised against retributivist theories.
Indeed, the concept of desert as responsibility and proportional punishment
forms the basis of my version of retributivism. In fact, these concepts form the
basis of any plausible theory of punishment! Another consequence of my
argument is that if it is plausible, it reveals a striking fact about much of what
has transpired in punishment theory in recent decades of philosophical analysis.
More specifically, in Chapter 3 I argue by way of primary textual evidence that
Kant is not as “pure” a retributivist (of the anti-utilitarian variety) as many
think he is. Instead, he makes, at least by way of implication, a key concession
to considerations of social utility in his view of what justifies both the
institution and particular forms of punishment. If this is true, then it is incorrect
to state, as many do, that Kant is the arch-defender of the narrowest or purist
kind of retributivism as an anti-utilitarian view of punishment. Kant, then,
seems to be more of a retributivist of a “mixed” or impure type. And
classifications of Kant into the pure retributivist camp are simplistic readings of
the entirety of what Kant wrote about punishment.
Subsequently, I argue that the same conditions of responsibility in individual
cases are precisely the same ones that serve as the basis of collective
INTRODUCTION
5
responsibility for purposes of morality and the law. I consider and ultimately
reject proposals that collective responsibility can accrue to aggregates or
random collectives in favor of a position that collectives are rightly held
accountable for their harms to the extent that they are conglomerates with
decision-making structures and the like. Not only, then, does my analysis
uniquely place moral responsibility theory at the heart of what justifies
punishment (normatively speaking), it extends the analysis of responsibility and

punishment to certain kinds of collectives. All the while, my theory of
punishment reflects a uniquely nuanced Kantian version of retributivism.
My theory of retributive punishment provides answers to some important
questions about punishment, questions pertaining to the nature of punishment,
its justification, the conditions of criminal responsibility, and some related
matters. For instance, insofar as the justification of the institution of
punishment is concerned, the reason why the state ought to punish is because
offenders deserve it. What does it mean to say that an offender deserves
punishment? It means, concisely, that to the extent that an offender is
responsible for her offence, she should be punished in proportion to her harm to
others. What does it mean to say that an offender is responsible for her harm
to others? It means, generally, that she was at fault in acting, failing to act
or attempting to act wrongfully and harm others, and that she has done so
intentionally, knowingly, and voluntarily. And it is the extent to which she acts
in these ways that she may and ought to be punished for her wrongful harm to
others.
However, offenders ought to be punished, but they ought not to be punished
disproportionately to the harm they have wrongfully caused to others. This is
not intended to advocate a strict or exact proportionality between criminal
harms to others and punishments. Instead, my theory of punishment, not unlike
Kant’s, holds to an approximate proportionality concerning punishment. But
principles to guide proportional punishment are needed, and I provide and
explore the plausibility of a number of such candidate principles. A handful of
such principles are articulated, discussed and some are accepted as being
worthy of being adopted by a reasonably just legal system. This deontological
feature of my theory of punishment makes even more obvious its Kantian
influence.
Subsequent to proffering a defence of a Kantian retributivism, I explore the
nature and plausibility of forgiveness and mercy. Some different conceptions of
forgiveness are evaluated critically until a reasonable understanding of the

possible nature and function of forgiveness and mercy in a legal system
emerges. A new “offender-centered” analysis of the nature of forgiveness is
explicated in terms of the concept of an apology. Forgiveness requires a
genuine apology, though a true apology in no way makes forgiveness necessary
from the moral standpoint. Forgiving is something altogether different. Anyone
INTRODUCTION

6
can forgive others as s/he pleases. But this in no way entails forgiveness. The
words and even actions of forgiving oneself or others are not performatives, as
is sometimes thought by certain philosophers who espouse quasi-religious
metaphysical beliefs about forgiveness and reconciliation. As philosophers,
we must not presumptuously assert that forgiveness aims at or entails recon-
ciliation. Nor ought we ever to assume without adequate argument that
forgiving self or others is in itself morally virtuous. Such assumptions beg
important questions against punishment itself, or against certain kinds of
punishments.
In Chapter 6, I set forth a basic argument in favor of capital punishment. I
then raise several objections to it. In the end, it will be argued that the demands
of responsibility and proportionality require capital punishment in particular
cases. That is, to the extent that an offender illicitly takes the life of another
agent and to the extent that she does so while satisfying strongly each of the
conditions of responsibility, that is the extent to which she deserves capital
punishment. Under such circumstances, to not punish her with death would be
to ignore considerations of responsibility and proportionality, e.g., desert.
Indeed, it would be unjust.
With the notion of collective responsibility in place, in Chapter 8 I set out to
apply this analysis to cases of corporate-collective harmful wrongdoing. Of
course, in cases of collective harmful wrongdoing the range of what the state
can and ought to do is different in kind than with individual harmful

wrongdoings. Although certain responsible corporate-individuals might be
imprisoned (even put to death, on my view) for harms they have caused to
others wrongfully, the collective to which the most guilty members belong is
subject to be forced to pay compensation for damages, assuming that it is truly
responsible for a wrongdoing. Its deeper pockets become the state’s target of
retribution. Thus the category of punishment takes on a broader meaning as it
pertains to the corrective justice of collectives such as corporations. While
corporate veils can and sometimes should be pierced in order to punish certain
corporate-individuals most directly responsible for harmful wrongdoing, the
In Chapter 7 the shift turns to matters of collectives. What is a collective?
Ought certain of them to be held accountable for what they do to harm others
wrongfully? If so, under what conditions should they be held responsible, and
why? I set forth and defend the first full-blown philosophical analysis of the
nature of collective (moral) responsibility. The basic conditions of collective
moral responsibility parallel those of individual moral responsibility, and there
is an important distinction drawn between the question of whether or not
decision-making collectives typically do satisfy such conditions (and, if so, to
confusion in responsibility theory results from not respecting this distinction.
what extent) and the question of whether or not they can be re-made too. Much
INTRODUCTION
7
corporation qua corporation cannot be punished physically (in the strict sense
of “punishment”), but instead must be forced to pay compensatory damages.
But what about states? Should they be held accountable for the atrocities
they commit against others? Recent cases of state harms to others concern
Serbians and Albanians, and even U.S. soldiers and Albanians. These cases
raise the issue of war crimes and reparations for such crimes. Other historical
instances of where states have been held accountable for war crimes and crimes
against humanity include Nazi Germany’s genocide of millions of Jews,
homosexuals, and others deemed “undesirable” by the Nazi regime. These

crimes, along with the examples of when the U.S. permitted, even encouraged,
generations. Millions of such persons were killed and tortured in those tragic
incidents, yet no reparations have been paid to African Americans,
10
and very
little has been done to adequately compensate Native Americans for the
holocaust and land theft that took place in many instances by the U.S.
government. It is this latter case that forms the focal point of Chapter 9 where
the case for reparations to Native Americans is set forth. Several objections to
such compensatory justice are considered and then rejected for a variety of
reasons. In the end, some policies of reparations to Native Americans are
outlined, each one rejected as being inadequate as a mode of compensation.
None comes close to proportional compensation for the harms done. Indeed,
one is left with the realization that, though considerable means of compensation
to Native Americans and African Americans might become realized in a state
which genuinely respects those against whom it has engaged in genocidal acts,
it is transparent that the U.S. was not, is not, and is unlikely to become such a
rights-respecting society when it comes to its paying the tragic debts that it
owes to the millions of the descendants of those murdered by U.S. armed
forces. In this respect, the U.S. seems to qualify as what Rawls terms an
“outlaw state.”
11
In sum, this book discusses philosophically the concept of punishment in a
manner that binds it inextricably to that of responsibility. As a version of
retributivism gradually emerges, it becomes clear that the concept of responsi-
bility forms the basis of the content of desert claims in criminal justice contexts.
But responsibility also serves as the ground for sentencing for the same
retributivist, as criminals are to be punished to the extent that they wrongfully
harm others, and (when possible) in similar ways that they harm others. In other
words, criminals are to be punished in proportion to their wrongful harms to

10
For a discussion of this point, see Roy Brooks, Editor, When Sorry is Not Enough (New York:
New York University Press, 1999), Parts 6-7; Randall Robinson, The Debt (New York:
Dutton, 2000).
11
John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999).
the enslavement of millions of Africans and thousands of Native Americans for
INTRODUCTION

8
others wherein by “harms” is meant to include actions, omissions and attempted
actions. And this holds true both for individual criminals as well as corporate or
based on the dual concepts of responsibility and proportionality. When I say,
for instance, that Susan Smith (the South Carolina mother who was found
guilty of the murder of her two infant children by drowning them in a lake by
way of locking them in her automobile, strapped to the back seat) deserves
capital punishment because she murdered her two children, I mean that she is
sufficiently responsible (ceteris paribus) such that some form of capital
punishment is what would be proportional treatment for what she did to the
children, and to others.
The contributions that this book seeks to make to both responsibility and
punishment theories include the following. First, although this project does not
intend to make a contribution to contemporary moral responsibility theory
itself, it seeks to conjoin directly and substantively the discussion of moral
responsibility theory to punishment theory.
12
In so doing, it suggests the
broadening of the analysis of moral responsibility to include the concept of
epistemic action (e.g., acting knowingly) in order to make it applicable to U.S.

(and perhaps to other) legal contexts of punishment. I argue that the complex
notions of criminal responsibility can be articulated more deeply in terms of the
metaphysics of moral responsibility theory. Second, this book analyzes the
nature of desert in terms of the fundamental concepts of responsibility and
proportional punishment. Third, it provides a novel and morally challenging
analysis of the nature of an apology, one which serves as a necessary condition
of forgiveness, a forgiveness which is under no circumstances morally obligatory.
My distinction between forgiving and forgiveness demonstrates the differences
between my analysis of forgiveness and other conceptions of what is often
claimed to be forgiveness, but is really a form of forgiving. Fourth, this project
seeks to set straight the main issues pertaining to the morality of capital
punishment. Fifth, this book seeks to provide and defend a new analysis of
collective responsibility that is applicable to U.S. law and perhaps to other legal
systems, both in terms of corporate-collective harmful wrongdoing and crimes
committed by states against others. Substantial philosophical energy is devoted
to the matters of compensatory damages owed by corporate-collectives that are,

12
Perhaps it is arguable that the very placing of the basics of moral responsibility theory, a genre
of philosophical-ethical literature which has been grounded in metaphysical concerns about
human freedom and unfreedom, into the context of collective moral and legal responsibility
theories is itself a contribution to moral responsibility theory and to punishment theory in
general. If so, I gladly accept my making this contribution both here and elsewhere. However,
my claim is simply that I do not intend to make a contribution to (individual) moral
responsibility theory or to punishment theory at the level of specific argumentation and
analysis.
other decision-making collective offenders. The concept of desert, then, is
INTRODUCTION
9
say, criminally negligent or otherwise liable for harms, and countries which are

responsible for criminal wrongs against others. Indeed, perhaps no other
philosophy book on punishment from a Western perspective devotes so much
attention to matters of corporate responsibility and punishment (compensation),
as well as to the problem of reparations.
CHAPTER 1
THE PROBLEM OF RESPONSIBILITY
The purpose of this chapter is to establish the conceptual framework for, and
articulate some of the pivotal assumptions of, this book. It attempts to set the
stage for the analyses and arguments that follow, pointing the reader in the
basic direction in which the philosophical discussion will ensue. It contains
some general remarks about the metaphysics of human action, and concludes
with a concise sketch of what is meant by “moral responsibility,” a conception
which can and ought to undergird legal conceptions of criminal (liability)
responsibility.
To be sure, some crucial questions of punishment are quite contingent on
answers obtained from moral responsibility theory. For example, that a criminal
qualifies as punishable depends in part on the extent to which she committed
(or failed to commit or attempted to commit, as the case may be)
1
a harmful
wrongdoing responsibly, which at least means that she acted knowingly,
intentionally and voluntarily. Moral responsibility theory has focused sign-
ificantly and directly on the nature of a moral agent's acting intentionally and
voluntarily and the extent to which that would make one a morally responsible
agent.
2
Traditionally and philosophically speaking, it is held that a moral agent is
properly construed as a morally responsible one (liable to praise or blame,
reward or punishment) to the extent that she is a voluntary agent. Generally, to
be a voluntary agent, one must, on the traditional view, be able to do otherwise

even in a context of voluntariness-reducing factors.
3
The concepts of responsibility and punishment are related. They imply each
other, though perhaps not in a strictly logical sense. The notion of punishment
implies that if criminals are to be punished, then they must be responsible
agents, contrary to an act utilitarian theory of punishment. Thus responsibility
is at least a necessary condition of punishment. Moreover, unless one is a
punishment skeptic of the abolitionist variety, it would appear that whatever is
plausibly argued of the nature and scope of legal responsibility ought to imply

1
For an account of equal punishments for failed attempts, see Joel Feinberg, Problems at the
Roots of Law (Oxford: Oxford University Press, 2003), Chapter 4.
2
There is even an increasing concern in moral responsibility theory about a moral agent’s acting
knowingly, e.g., of epistemic states.
3
For a discussion of a range of voluntariness-reducing factors, see Joel Feinberg, Harm to Self
(Oxford: Oxford University Press, 1986).
11
CHAPTER 1

12
something about the punishability of a criminal, given the facts of the case. It
would appear, moreover, that legal responsibility ought to be construed in such
a manner that it is congruent with the nature of moral responsibility such that a
general account of responsibility is co-terminus with the grounds that would
morally justify the state’s right and/or duty to punish criminals. But as Joel
Feinberg points out:
Determining legal responsibility in problematic cases often

comes down to the questions of who ought to pay or who ought
to be punished and how much. These questions are rendered
problematic by conflicting interests and principles of justice,
and the answers to them usually depend on what the judge
takes to be the “ends” or “purposes” of compensation or
punishment.
4
Not only does legal responsibility admit of complexity, but so does moral
responsibility. Ultimately, “ the precise determinability of moral responsibility
5
are not completely discernable does not imply that no one is morally
responsible, or that we cannot say rather meaningful things about that of which
moral responsibility consists. Nonetheless, we must bear in mind Feinberg’s
cautions about legal and moral responsibility. For both admit of deep
complexity.
Without attempting to resolve or even address the several intricate and
worthwhile issues argued in moral responsibility theory during recent years, I
will bring together in this chapter some of the important features of what a
plausible (positive) account of responsibility would entail. One assumption here
is that moral truth is determined by what the balance of human reason tells us
about matters of responsibility, and that whatever the most plausible moral
responsibility theory tells us about the nature of human accountability
(praiseworthiness or blameworthiness) is what the criminal law ought to
embrace, at least as much and as well as would be reasonable and practicable.
Here I want to focus on the more serious kinds of cases of responsibility rather
than the minutia of culpable actions. Furthermore, when I use the phrase
“action” and its cognates, I mean to use this as shorthand for actions, omissions
(negligence) or attempted actions, as the case may be. For if (positive or
negative) responsibility accrues at all, it accrues to us on the basis of omissions
and attempts as well as actions. With Jeffrie G. Murphy, I further assume that it

4
Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 27.
5
Feinberg, Doing and Deserving, p. 37.
is an illusion ” However, the fact that the boundaries of moral responsibility
THE PROBLEM OF RESPONSIBILITY
13
is the legitimate business of the state to punish by way of the criminal law.
6
Finally, I assume that actions are those doings or doing-related events that are
motivated or are the result of our wants and desires.
7
Each of these claims
deserves intricate and rigorous philosophical attention. However, none will
receive attention in this book.
DESIDERATA OF A THEORY OF RESPONSIBILITY
In order to guide our philosophical thinking about responsibility, it is helpful
to consider various desiderata of a plausible theory of responsibility. Desiderata
of a plausible theory of responsibility include the following. First, it is desired
that such a theory have a purpose, for instance, to serve as part of the
foundation of the elucidation of a theory of punishment. This is certainly the
point of my treatment of responsibility. Without a purpose or aim, philosophical
analyses seem often to be lost or even pointless.
8
Thus there needs to be an aim
of a responsibility theory, preferably an explicit one.
Second, it is desirable that a plausible theory of responsibility set forth and
defend the conditions under which an agent is rightly held accountable, even
punishable, for her actions. In so doing, a theory of responsibility serves the

function of grounding a theory of punishment’s justification.
Third, it is desired that a theory of responsibility distinguish between the
different uses and senses of “responsibility” in order not to conflate such uses
and senses. It is crucial to keep in mind that it is a specific but complex kind of
responsibility that is the foundation of justified punishment.
Fourth, it is desired that a theory of responsibility respect the distinction
between moral and legal responsibility.
9
What amounts to moral responsibility
and what amounts to legal responsibility are in many respects congruent with
one another. However, there are cases in which, say, criminals are legally
responsible for actions for which they would not be morally responsible. The
legal category of strict liability serves as one obvious instance along these lines.

6
Jeffrie G. Murphy, Retribution Reconsidered (Dordrecht: Kluwer Academic Publishers, 1992),
punishment ought to provide a moral justification of the state’s right to punish offenders
[R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press,
2001), p. 25.
7
Alvin I. Goldman, A Theory of Human Action (Princeton: Princeton University Press, 1970). Of
course, there is a wealth of philosophical literature challenging this sort of analysis of the
nature of human action. But a discussion of this analysis is beyond the scope of this project.
8
Keith Lehrer, Theory of Knowledge, Second Edition (Boulder: Westview Press, 2000), p. 7.
9
For a discussion of legal and moral concepts of responsibility, see Peter Cane, Responsibility in
Law and Morality (Oxford: Hart Publishing Company, 2002). For a review of Cane’s book,
see J. Angelo Corlett, “Review of Cane, Responsibility in Law and Morality,” Mind, 112
(2003), pp. 328-31.

p. 15. I do recognize, as R. A. Duff insightfully notes, that a comprehensive theory of
CHAPTER 1

14
For purposes of public safety the law sometimes holds responsible those who
have the power to effect change given their role responsibility for something,
even though they have little or no causal connection to a particular untoward
event the harms from which the law seeks to protect citizens.
Not only are there cases of legal responsibility that do not amount to moral
responsibility, there are instances where one is morally responsible for
something that the law, for whatever reasons, refuses to disallow by way of
legislation. An example would be categories of conduct that fall under the
rubric of “there ought to be a law!” But for whatever reasons, there is no law
prohibiting such conduct. Perhaps one might argue that smoking in public
ought to be made illegal (because it wrongfully harms others by setting back
their legitimate interest in good health), in which case those who smoke would
be held legally responsible for their wrongdoing. However, as things currently
stand, smoking is banned only in particular regions (in the U.S., for instance, in
California), and only inside public buildings and within a short distance from
such buildings. Thus there are instances of legal responsibility that do not add
up to moral responsibility, and there are, it might be argued, cases of moral
responsibility that are not supported by law. Furthermore, there are essentially
hard cases in which morality and the law conflict.
10
THE USES AND CONTEXTS OF “RESPONSIBILITY”
What are the different uses of “responsibility,” and what are the contexts of
responsibility? Black’s Law Dictionary
11
defines “responsibility” as “liability…a
person’s mental fitness to answer in court for his or her actions…” and

“liability” as “The quality or state of being legally obligated or accountable;
legal responsibility to another or to society, enforceable by civil remedy or
criminal punishment.” Most of these aspects of responsibility are captured in
ordinary usage, where “responsibility” and its cognates are used to refer to a
variety of things. At times “responsibility” is used to refer to obligations or
duties one has, such as when “She is irresponsible” or “You cannot be trusted
because you are not responsible” is uttered. Moreover, university professors
have professional roles that hold them accountable for certain behaviors in

10
An example of such a hard case, in U.S. law, would be whether or not the First Amendment to
the U.S. Constitution ought to protect hate speech. For a philosophical discussion of this
problem, see J. Angelo Corlett and Robert Francescotti, “Foundations of a Theory of Hate
Speech,” Wayne Law Review, 48 (2003), pp. 1071-1100.
11
Bryan A. Garner, Editor in Chief, Black’s Law Dictionary, Seventh Edition (St. Paul: West
Group, 1999).
THE PROBLEM OF RESPONSIBILITY
15
certain situations as defined by institutional rules. These are examples of the
duty use of “responsibility.”
12
Moreover, there is the causal use of “responsibility.” I am responsible for an
outcome in the causal use if my action is in some significant way the result of
what I did, failed to do or attempted to do or if what I did, failed to do or
attempted to do was a contributory cause of that outcome. We often assign
causal responsibility to events (economic problems in society, winning athletic
competitions, etc.) or persons (public officials, athletes, etc.). To say that I am
responsible for a certain outcome in the causal use constitutes a “straightforward
ascription of causality.”

13
There is also the praise use of “responsibility.” This use of “responsibility”
places a moral judgment on its subjects. Unlike the duty or causal uses of
“responsibility,” the praise use ascribes accountability to someone for what she
did, where what she did was praiseworthy. For example, when I say, “You are
responsible for saving the drowning child!” I am ascribing to you an
accountability for your heroic action for which you should be praised and
perhaps rewarded.
Moreover, there is the blame use of “responsibility,” the use of the
expression that attributes accountability to those who are blameworthy for what
they do. The blame use of “responsibility” is exemplified in the accusation,
“Former U.S. president Andrew Jackson is significantly responsible for the
attempted genocide (though not merely attempted genocide, as his actions
actually led to the murders of thousands) of Native Americans in the U.S ”
14
13
Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 130.
14
Indeed, this is an example where blame and role uses of “responsibility” are conjoined. For it
was by virtue of his role as Commander-in-Chief of the U.S. Army that Andrew Jackson was
responsible for the carrying out of part of his campaign promise to commit genocide against
12
Hart calls this “role responsibility” {See H. L. A. Hart, Punishment and Responsibility
(Oxford: Oxford University Press, 1968), Chapter 9 [Compare Kurt Baier’s notion of “task-
responsibility” in Kurt Baier, “Guilt and Responsibility,” in Peter A. French, Editor,
Individual and Collective Responsibility (Cambridge: Schenkman Publishing Company,
1972), p. 52]. This notion of responsibility is also captured by R. S. Downie when he writes:
“When collectives act individuals act, but those individuals act in roles whose capacities are
defined by the nature of the collective. . . . Individuals are authorized by their collectives to
act in certain ways, depending on the function of the collective” [See R. S. Downie,

“Responsibility and Social Roles,” in Peter A. French, Editor, Individual and Collective
Responsibility (Cambridge: Schenkman Publishing Company, 1972), p. 70]. I do not,
however, wish to imply that there are not important distinctions between this duty use of
“responsibility” and the duties that are implied by rights (given the correlation, however
imperfect, between rights and duties). Surely the duty I have in virtue of my role or position is
not necessarily implied by another's having a right, moral or otherwise, that holds against me
at that time. Nor do I wish to discount the important distinctions that have been made between
duties and obligations [See Richard B. Brandt, “The Concepts of Obligation and Duty,” Mind,
73 (1964), pp. 374-93; E. J. Lemmon, “Moral Dilemmas,” The Philosophical Review, 71
(1962), pp. 139-58]}.
Native Americans in that they stood in the way of “Manifest Destiny.”
CHAPTER 1

16
It is assumed that the person who is responsible in the blame use of the term is
one who, if certain other conditions are satisfied, is a candidate for moral
censure and/or punishment and that they are at fault in what they did. Thus to
say that one is responsible for an outcome in the blame use amounts to an
“imputation of fault.”
15
Similarly, when I say, on self-reflection, that I am
morally liable for an outcome, I mean that the weight of moral reasons supports
the claim that I am to be held liable to punishment or sanction for my part in
causing the outcome. Barring strict liability, then, liability responsibility seems
to entail, at least in most cases, causal responsibility.
Finally, there is the liability use of “responsibility.” This is closely related to
the blame use. However, an outcome might be “one’s fault,” yet one is not
subject to sanction for it, given, say, that the amount of damage or harm in the
given case is negligible. The liability use describes someone who is punishable,
an appropriate candidate for punishment or compensation due to negligence.

When I say that “Former U.S. president Andrew Jackson is significantly
responsible for the attempted genocide of Native Americans in the U.S.,” I
mean that he ought to have been punished severely for his actions (assuming
due process, of course).
16
I have ascribed liability
17
to Jackson.
It is clear that various uses of “responsibility” may be linked in a single use,
such as when I say that “Various executives of the large U.S based tobacco
companies are responsible for deceiving the U.S. public and profiting unjustly
from such deception.” Here the causal, blame and liability uses of “responsibility”
are combined. Or, when I say, “You acted responsibly,” I may be combining
the duty and praise uses of “responsibility.”
There are additional distinctions among the uses of “responsibility:”
18
retrospective, prospective, and tout court. Of these three, I am primarily
concerned with retrospective responsibility, or responsibility for what one did
in the past and/or for what one is doing in the present. But as Joel Feinberg
reminds us, I can be responsible for something where “something” is located in
the future, which at times can be understood in terms of liability.
19
Finally, I
can be responsible “on balance,” which either ascribes or describes my
excellence of character. This is responsibility tout court, where I am a
responsible person, not necessarily responsible for anything.
20

15
Feinberg, Doing and Deserving, p. 136.

16
Hart refers to this use of “responsibility” as “liability responsibility” (See Hart, Punishment
and Responsibility, Chapter 9).
17
Feinberg, Doing and Deserving, pp. 136-39.
18
For an alternative categorization of responsibility types, see Baier, “Guilt and Responsibility.”
19
Joel Feinberg, “Responsibility for the Future,” Philosophy Research Archives, 14 (1988-89),
pp. 93-113.
20
Joel Feinberg, “Responsibility Tout Court,” Philosophy Research Archives, 14 (1988-89), pp.
74-92.
THE PROBLEM OF RESPONSIBILITY
17
Not only are there different ordinary language uses of “responsibility,” there
are different contexts of responsibility. There is legal responsibility, which is
when one is properly judged responsible for something according to the rules of
a legal system. U.S. law, for instance, has different conditions for criminal
responsibility than it does for tort liability. Since this book is primarily
concerned with responsibility and punishment for crimes, an (albeit rather
concise) account of criminal responsibility is helpful.
The elements of criminal responsibility include: actus reus (a voluntary
physical or bodily act, omission or attempt by the defendant); mens rea (the
defendant’s intent or state of mind at the time of the act, omission or attempt);
concurrence between the defendant’s actus reus and mens rea; and a harm
caused by the defendant’s act, omission or attempt. Some crimes, such as
receipt of stolen property, require proof of “attendant circumstances” as well.
Of course, mens rea is not required in cases of strict liability. Whereas the mens
rea element is often one of general intent or a defendant’s awareness of all

factors (e.g., attendant circumstances) constituting a crime, there are numerous
instances of “specific intent” crimes: solicitation, attempt, conspiracy, first
degree premeditated murder, assault, larceny, robbery, burglary, forgery and
embezzlement come to mind here. Some statutes require that a defendant act
purposely and/or knowingly. By “purposely,” the law means that a defendant
acts such that it is her conscious object to engage in certain conduct or cause a
certain result. By “knowingly,” it means that a defendant is aware that her
conduct is of that nature or that particular circumstances exist. She acts
knowingly with respect to the result of her conduct when she knows that her
conduct will at least very likely cause such a result. This concise outline of
criminal liability in U.S. law will suffice for my aim in showing some of the
vital connections between criminal responsibility and moral responsibility.
MORAL RESPONSIBILITY
While it is true that no comprehensive general account of responsibility can
be complete without an account of legal responsibility,
21
it is also true that such
an account would be incomplete lacking an account of what makes one morally
responsible. For what makes one morally responsible is a matter of what the
balance of human reason “decides” and is not contingent on social convention
as are notions of legal responsibility. In this way, moral responsibility is an
ontologically prior notion, and serves well as our guide to who deserves to be
punished for some wrongful and harmful outcome. So while a plausible account
of responsibility for purposes of determining deserved punishment does well to
be informed by conceptions of legal responsibility, moral responsibility theory

21
Cane, Responsibility in Law and Morality, p. 28.