Abstract
Andrew Simester’s new book, Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing, is a masterful analysis of the doctrines of the general part of the criminal law and the multiple, overlapping functions that those doctrines serve. Along the way, Simester makes explicit what criminal law theorists routinely presuppose—that the ordinary words “blameworthiness” and “culpability” pick out the same moral concept. This essay argues that this assumed equivalence is mistaken: two concepts are in play, not one. Roughly, to be blameworthy is to be justly liable to blaming practices in virtue of being at fault, and to be culpable is to act in a fashion that manifests or issues from insufficient concern for morally weighty interests. Culpability is not identical to blameworthiness, but rather a ground of blameworthiness: to be culpable is one way to be at fault, thus one way to be blameworthy. More importantly, culpability is not the exclusive ground of blameworthiness; an agent can be at fault, hence blameworthy, without being culpable. This essay defends these conceptual claims and draws forth some implications for two theses that Simester advances: that it is morally permissible to punish persons for criminal negligence and that it is unjust to punish persons who don’t deserve it.
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08 April 2024
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Notes
A.P. Simester, Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing 3 (2021).
Scholars routinely use the terms interchangeably without explicitly acknowledging their doing so. For a small and random sampling of authorities who equate the terms explicitly, see Marcia Baron, Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide, 14 Crim. L. Phil. 69, 83 (2020); Michael J. Zimmerman, A Plea for Accuses, 34 Am. Phil. Q. 229, 229 − 30 (1997); John Shepard Wiley, Jr., Not Guilty by Reason of Blameworthiness: Culpability in Federal Criminal Interpretation, 85 Va. L. Rev. 1021, 1029 (1999); Ishtiyaque Haji, Obligation Incompatibilism and Blameworthiness, 50 Phil. Papers 163, 163 n.2 (2021). For a rare criticism of this tendency by both courts and commentators see Kyron Huigens, Rethinking the Penalty Phase, 32 Ariz. St. L.J. 1195, 1203 n.36 (2000). For recent revisionary proposals to carve up culpability more finely see Douglas Husak, Broad Culpability and the Retributivist Dream, Ohio St. J. Crim. L. 449 (2012) (distinguishing “narrow” and “broad” culpability); David O. Brink, The Nature and Significance of Culpability, 13 Crim. L. Phil. 347 (2019) (distinguishing “narrow,” “broad,” and “inclusive” culpability).
Dedicated readers of this journal will find some of these arguments familiar. For my recent essays (here and elsewhere) that elaborate and defend distinctions among the core normative concepts blameworthiness, culpability, desert, and fault see Blameworthiness, Desert, and Luck, 57 Noûs 370 (2023); Negligence and Culpability: Reflections on Alexander and Ferzan, 16 Crim. L. Phil. 455 (2022); and Proportionality, Constraint, and Culpability, 15 Crim. L. Phil. 373 (2021). For a skeletal presentation of a version of retributivism that builds on these distinctions—a version that I call “prospect retributivism”—see my Retributivism, in Jesper Ryberg, ed., Oxford Handbook of Punishment Theory and Philosophy (forthcoming).
Simester, supra note 1, at 12.
Id.
Id. at 25.
Id.
Simester, supra note 1, at 13 n.35 & 237 n.2.
Id. at 237.
E.g., id. at 243, 249.
Id. at 238.
See, e.g., Peter Westen, An Attitudinal Theory of Excuse, 25 Law & Phil. 289 (2006); Larry Alexander & Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability: A Theory of Criminal Law ch.2 (2009); Alex Sarch, Criminally Ignorant 28–29, 50–54 (2019); Gideon Rosen, I—Culpability and Duress: A Case Study, 88 Aristotelian Soc’y Supp. 69 (2014).
Simester, supra note 1, at 238 n.7.
See, e.g., id., at 256 − 57, 260 − 61.
I think two possibilities are most probable: for A to be worthy of blame is either for A merely to be morally liable to be blamed, or, in addition, for it to be objectively good, recommended, or required that A be blamed. I argue for the liability conception of blameworthiness over the latter “favoring” conception in Berman, Blameworthiness, Desert, and Luck, supra note 3, where I also argue that desert, in contrast to blameworthiness, is a favoring concept not a mere liability one. I elaborate on this difference in Sect. 6, below.
That more systematic attention to rules and practices from sports can shed light on problems and puzzles of legal theory is another of my hobbyhorses. See generally Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (2021).
Amy K. Nelson, From the Archives: Blown Call Still Haunts Major League Baseball Umpire Jim Joyce, ESPN.com, June 2, 2020.
Hochuli Apologizes to Fans for Blown Call in Chargers-Broncos Game, ESPN.com, Sep. 18, 2008.
Bernard Williams, Moral Luck, in Moral Luck 20, 28 (1981).
Michael S. Moore & Heidi M. Hurd, Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence, 5 Crim. L. Phil. 147, 156 (2011).
David O. Brink, Fair Opportunity and Responsibility 94 (2021).
Id. at 93.
See supra note 15.
See Simester, supra note 1, at 13 n.35 (noting that there can be non-culpable fault, but without contemplating that fault could be the ground of worthiness of blame).
Germany-England World Cup Assistant Referee Mauricio Espinosa Admits He Missed the Bounce of Frank Lampard’s Goal that Never Was, Goal.com, Dec. 19, 2010.
Simester, supra note 1, at 259. This is the teaching of John Gardner, The Gist of Excuses, 1 Buff. Crim. L. Rev. 575 (1998). In my view, Gardner was right to highlight that one can be blameworthy for failing to meet standards that govern a role they inhabit. His error was to think this insight shed much light on excuses. Few excuses amount to claims that the agent had lived up to the relevant standard. Most excuses concede that the agent did not, but claim that the circumstances undermined the agent’s capacity to do so.
Alex Sarch and Gideon Yaffe have both recently advanced arguments that depend on a distinction between criminal culpability and moral blameworthiness. Alex Sarch, Criminally Ignorant 64–67 (2019); Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility 13 (2018). As best I can tell, neither distinguishes moral blameworthiness either from non-moral blameworthiness or from moral culpability.
For one development of this view see Alexander & Ferzan, supra note 12, at ch.3.
Simester, supra note 1, at 11.
Id. at 250.
Fundamentals says a fair bit about this, see especially id. at 250 − 52, 277 − 80, but I find parts of the discussion to point in conflicting directions. Because spelling out why would consume many more words than anyone other than Simester or myself could find reasonable, I’ll leave things equivocal.
For one elaboration of this basic model see Bernard J. Baars, In the Theater of Consciousness: The Workspace of the Mind (2001).
Simester, supra note 1, at 277.
Id. at 279.
Fundamentals suggests disagreement with these latter two judgments, for Simester declares D culpable both in the original presentation of the hypothetical in which, as far as we’re told, D simply “does not think to check,” Simester, supra note 1, at 250, and in a variant in which D “does not pay attention to the child because his attention is absorbed entirely by a radio broadcast of England winning a cricket match.” Id. at 252. I am uncertain, however, whether Simester treats these facts as evidence of D’s insufficient concern or as constitutive of insufficient concern. If the latter, I dissent. If the former, the evidence is probative but inconclusive.
I am of course paraphrasing “sometimes a cigar is just a cigar,” a famous Freud quotation that, sadly, is likely apocryphal. 10 Quotes Wrongly Attributed to Sigmund Freud - Freud Museum London.
Simester, supra note 1, at 250.
Simester discusses an analogous English case involving an anesthetist who fails to notice that a breathing tube had become disconnected, which oversight caused the patient to suffer a heart attack and die. Simester, supra note 1, at 285 − 86 (discussing Adomako, [1995] 1 AC 171). To my eyes, Potter raises the moral challenge rather more powerfully than Adomako does because its factual context—yet another killing of an unarmed Black man by a white police officer—presents a more compelling case that criminal conviction and punishment would serve the public interest.
Cf. Simester, supra note 1, at 58–64.
Id. at 11.
Id. at 304. See also id. (“[I]t is wrong to convict those who are not blameworthy. If a person does not deserve to be convicted, she has a right not to be.”).
See supra note 15.
I say “nearly” because some anti-retributivists allow that punishment is deserved and reject retributivism on the basis that the state is morally disabled from seeking to furnish the deserved punishment.
This is misleading because negative desert is the heart of retributivism and anti-retributivists deny negative desert.
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Leon Meltzer Professor of Law, and Professor of Philosophy, University of Pennsylvania. I am grateful to Massimo Renzo for inviting my contribution to this symposium and to participants at a workshop hosted by King’s College London for constructive reactions to my prepared remarks.
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Berman, M.N. “Blameworthiness” and “Culpability” are not Synonymous: A Sympathetic Amendment to Simester. Criminal Law, Philosophy (2024). https://doi.org/10.1007/s11572-024-09722-x
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DOI: https://doi.org/10.1007/s11572-024-09722-x