A theory of the normative force of pleas

Franklin, Christopher Evan

doi:10.1007/s11098-011-9826-y

Published: 12 October 2011

A theory of the normative force of pleas

Christopher Evan Franklin¹

Philosophical Studies volume 163, pages 479–502 (2013)Cite this article

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Abstract

A familiar feature of our moral responsibility practices are pleas: considerations, such as “That was an accident”, or “I didn’t know what else to do”, that attempt to get agents accused of wrongdoing off the hook. But why do these pleas have the normative force they do in fact have? Why does physical constraint excuse one from responsibility, while forgetfulness or laziness does not? I begin by laying out R. Jay Wallace’s (Responsibility and the moral sentiments, 1994) theory of the normative force of excuses and exemptions. For each category of plea, Wallace offers a single governing moral principle that explains their normative force. The principle he identifies as governing excuses is the Principle of No Blameworthiness without Fault: an agent is blameworthy only if he has done something wrong. The principle he identifies as governing exemptions is the Principle of Reasonableness: an agent is morally accountable only if he is normatively competent. I argue that Wallace’s theory of exemptions is sound, but that his account of the normative force of excuses is problematic, in that it fails to explain the full range of excuses we offer in our practices, especially the excuses of addiction and extreme stress. I then develop a novel account of the normative force of excuses, which employs what I call the “Principle of Reasonable Opportunity,” that can explain the full range of excuses we offer and that is deeply unified with Wallace’s theory of the normative force of exemptions. An important implication of the theory I develop is that moral responsibility requires free will.

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Notes

By ‘blame’, I mean ‘blame in the reactive attitude sense.’ To blame someone on this account is to be subject to, or to judge that it would be appropriate to be subject to, a moral emotion, such as resentment, indignation, or guilt, where these attitudes in turn dispose one to rebuke, censure, and apologize (among other things). Strawson (1993) is the contemporary fount of this view and Wallace (1994) is one of its most sophisticated defenders. But there are other well established senses of blame, such as those offered by Scanlon (2008) and Sher (2006). As I am seeking to address the conditions under which it is appropriate to blame someone, it is crucial that we keep the sense of blame I am after firmly before our mind—for different species of blame may well give rise to different conditions of appropriateness. It would be a mistake to view the accounts of appropriateness offered by Scanlon and Sher as, strictly speaking, contrary to my own as they are operating with different notions of blame. It is for this reason that I do not here interact with their very interesting work.
Austin (1961) contains an early discussion of justifications and excuses. ‘Exemptions’ is, to my knowledge, first used in Watson (2004b) to pick out Strawson’s second group of considerations that inhibit the making of the basic demand (Strawson 1993, pp. 51–52). Wallace (1994, Chap. 5) offers a similar taxonomy of pleas that I present here.
These examples are contentious. Below I will argue that addiction and extreme stress are in fact excuses, not exemptions. Over the past 30 years there has developed a robust literature on the issue of the moral and criminal responsibility of psychopaths. For an argument that psychopathy does not get one off the hook see Scanlon (1998).
I am using ‘free will’ somewhat stipulatively: free will includes the freedom to do otherwise. This use of ‘free will’ has wide contemporary and historical precedence. See Brahmall (1999), Reid (1969), van Inwagen (1983), Vihvelin (2000, 2004). ‘Free will’ is, alternatively, defined as the control condition for moral responsibility (whatever that might be). See, e.g., Fischer et al. (2007). This definition leaves it as an open question whether free will requires the freedom to do otherwise.
My theory, however, is not a distinctively incompatibilist one. It is not a consequence of my theory that free will and moral responsibility are incompatible with determinism. Hence, both compatibilists and incompatibilists can, in principle, endorse my theory of pleas. Our present query is neutral on the compatibility question.
The most important response to these cases has been developed by Ginet (1996), Kane (1996), and Widerker (1995).
I respond to these neo-Frankfurtians in Franklin (2011).
For the sake of simplicity and elegance I will often leave this qualification suppressed.
The name and formulation of this principle comes from Frankfurt (1969). However, there have been a host of modifications to this principle. For helpful discussion of many of the different formulations of PAP-like principles see Mele (2006, pp. 82–87).
It is unclear exactly what Wallace has in mind here. He claims that an agent’s quality of will is the “primary” target of moral assessment (Wallace 1994, p. 128). This would seem to suggest that we can also be responsible for actions and consequences that follow from our qualities of will, even though these actions and consequences would be secondary targets of moral assessment. But what is the sense of primary and secondary here?
An important worry for Wallace concerns how to account for cases of negligence, where agents seem responsible for a failure to act. Does this omission express a choice? If not, then Wallace’s account fails. Wallace, in fact, argues that such omissions do express earlier choices the agent made. As my objections to his account do not turn on these issues, I will suppose that Wallace can handle cases of negligence.
Wallace also lists duress, coercion, and necessity as examples of excuses. His account of these putative excuses strikes me as contrived, forcing us to distinguish the choice to φ from the choice to φ-rather-than-ψ (Wallace 1994, p. 144). Wallace’s account would be better served by construing considerations such as duress, coercion, and necessity as justifications, thus allowing him to avoid the peculiarities raised by his treatment of them under the rubric of excuse.
A defender of PAP might naturally reply that PAP does not need to explain the full range of excuses in order to be true. Wallace concedes this point. His argument against PAP is two-fold: first, PAP is not needed to explain any excuses and, second, there are more powerful principles. Wallace contends that once we realize that PAP is not required to explain the normative force of excuses, our inclination to accept it wanes (1994, p. 151). I have doubts about this last claim, but I believe there are more pressing problems with Wallace’s account and so I will not dispute this point.
Fischer and Ravizza (1998) and Wallace (1994) are of the same mind on this condition: the cognitive condition requires sensitivity to moral reasons. Scanlon (1998) has argued, however, that mere sensitivity to reasons (moral or otherwise) is sufficient to “get one in the game.” It is for this very reason that their accounts treat psychopaths differently—for it is often thought that psychopaths possess practical reasoning skills, at least to some degree, and yet lack the capacity to recognize and appreciate distinctively moral reasons. I am inclined to think Fischer and Ravizza and Wallace are correct, but this point of contention has little bearing on my present arguments. Watson (2001) raises important worries about Scanlon’s rejection of moral understanding as a necessary condition for morally responsible agency.
Locke (1975, I.xxi) contains an important discussion of the first aspect of this conception of a will: the capacity to “suspend” one’s activity in order to critically reflect on one’s motivations. The second aspect figures into many accounts of the will.
Wallace uses ‘power’, ‘ability’ and ‘general capacity’ interchangeably (Wallace 1994, p. 159). These notions are slippery and used equivocally in the literature on free will and moral responsibility. However, it is clear that by ‘power’ and ‘ability’ Wallace means ‘general capacity’, which, as we will see, is a very weak kind of power.
As with Wallace’s treatment of excuses, one might question his claim about the relation between explanatory power and truth: the fact that specific abilities are not needed to explain the normative force of exemptions does not show that it is false that such abilities are required for moral responsibility. I have much sympathy for such a reply, but will instead focus on responding to Wallace on his own grounds, arguing that his normative principles do not in fact explain the full range of excuses and exemptions we offer.
Again, all these claims are under the assumption that Frankfurt-style cases fail.
I intend this claim to be somewhat stipulative. There are various senses of abilities and opportunities. My aim in this paragraph is to distinguish the sense of ability and opportunity that I am interested in.
Wallace (1994, pp. 182-183) also suggests the terminology of ability and opportunity.
I defend in this approach more thoroughly in Franklin (forthcoming).
All of these cases raise issues about tracing: suppose your not knowing that you have the opportunity to set about curing cancer is due to your own negligence. Did you have a reasonable opportunity to cure cancer? Assuming that you had a reasonable opportunity to become aware of your opportunity to cure cancer, then it seems that you indeed did have a reasonable opportunity to cure cancer. Similar remarks apply to lacking any opportunity or lacking a reasonable opportunity due to difficulty. If one is responsible for such absences (either the opportunity or the requisite strength to take up the opportunity), then we might judge that one did have a reasonable opportunity despite its current unavailability or difficulty: the idea being that you had this opportunity at an earlier time. Consequently, a more precise version of PRO requires reference to specific times (times concerning both the having of the opportunity and the time of action), and judgments about the reasonableness of opportunities requires considerations of possible culpability for the absence of the opportunities. Nevertheless, we can safely ignore these complexities in the present context. It is more important to understand the role and plausibility of this principle before hammering out all the details.
My sense is that it also varies along the lines of degree of normative competence.
As with Wallace, I make no claims about the true nature of addiction and extreme stress. What we are interested in is how best to explain why, given our folk understanding, these conditions get agents off the hook.
Of course, we can cook up examples in which this generality does not hold. But that is consistent with my claim that usually agents aren’t accountable one minute and not accountable the next. To illustrate this consider Alzheimer’s patients. Presumably a person in the late stages of Alzheimer’s is not an accountable agent. Yet there are strong reasons for thinking that persons in the early stages of Alzheimer’s are accountable. The transition from early to late stage is a slow, gradual process, and results in a radical deterioration of the brain. Because of this there will be large segments of time in which it will be difficult to judge whether the person is morally accountable; indeed, perhaps it is genuinely indeterminate. But it certainly won’t be the case that the patient is accountable on Monday and not accountable on Tuesday.
There are however serious questions about the accuracy of this description. For doubts see Wallace (1999) and Watson (2004c, d). I cannot stress enough that I am only concerned with addiction understood merely as a source of irresistible impulses.
It must be remembered that the notion of ‘ability’ here is ‘general capacity.’
I am grateful to Justin Coates for helping me see the need for this clarification.
Again, this is only a claim about general abilities. Many philosophers distinguish among various kinds or species of ability and it may well be that desire is among the grounds of some of these kinds or species. What is clear, however, is that desire is not among the grounds of general abilities, or simply abilities as I am currently employing the term.
Of course, a consequence of consuming banned substances could be impaired abilities. What I am denying is that the mere presence of addictive desires impairs one’s abilities.
Cf. Wallace (1994, p. 138) who makes similar remarks about the nature of recklessness.
In his perceptive discussion of Wallace’s theory, Kane (2002) raises similar worries about Wallace’s theory of pleas, although our arguments are markedly different. Our arguments differ in three important respects. First, Kane restricts his attention to arguing that appeals to alternative possibilities (such as the opportunity to do otherwise) and historical conditions (such as how a person came to be the way he is) are indeed features of our ordinary practices of moral responsibility. He offers a range of cases in which an agent cannot do otherwise and, so it seems, is thus excused. Second, in neither Kane’s discussion of Wallace nor in his other written work does he attempt to offer anything like a comprehensive theory of excuses. For example, Kane’s UR condition of freedom and responsibility (1996, p. 72) is susceptible to the exact criticism Wallace raises against PAP: UR, like PAP, cannot account for the normative of, for example, inadvertence. Both points render Kane’s theory of free will and moral responsibility susceptible to Wallace’s line of attack. First, Wallace never denies that there are cases in which an agent lacks alternative possibilities and is excused from responsibility. Rather, he argues that it is not the lacking of alternative possibilities that is doing the excusing, but some other feature of the situation, such as the agent’s quality of will. In order to meet Wallace’s challenge Kane must do more than show that cases of excuses and lacking alternative possibilities sometimes go together (Wallace himself makes these points in response to Kane (Wallace 2002, pp. 715–721)). The most obvious way to meet this challenge is to offer a rival theory of the normative force of excuses that both accounts for the full range of excuses we offer and does a better job than Wallace’s theory in accounting for their normative force. I have tried to fill just these gaps in Kane’s argument by arguing that PRO can account for the full range of excuses and that Wallace’s theory cannot.
Another issue that separates myself from Kane is that his criticism of Wallace is a distinctively incompatibilist one (cf. Kane 2002, p. 693). My criticism and proposed alternative theory, however, are neutral on the compatibility question.
I defend this account of freedom more fully in Franklin (forthcoming).
See Fischer (1994), Ginet (1990), and van Inwagen (1983). Concerning specifically issues of the compatibility of the opportunity to do otherwise and determinism see Vihvelin (2000) for a defense of compatibilism and Franklin (forthcoming) for a defense of incompatibilism.
As mentioned in the introduction, this conclusion needs to be qualified since it presupposes the failure of Frankfurt-style cases. These influential cases pose a threat to my defense of PRO as they purport to describe scenarios in which an agent is responsible and yet lacks any opportunity to do otherwise. These cases have received much defense and criticism in the literature, but, given this paper’s aim, it is beyond its scope to comment on them. My goal, instead, has been to criticize the other main defense of semi-compatibilism that Wallace develops, and thus disarm one of the main attacks on PAP-like principles. Moreover, my criticism of Wallace has allowed me to develop a general theory of the normative force of pleas, which, given its simplicity, unity, and plausibility, places pressure on the defenders of Frankfurt-style cases: the greater the plausibility of the principle the more convincing the counterexamples will have to be.

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Acknowledgments

Earlier drafts of this paper were presented at the University of California, Riverside and the University of Tennessee. I am grateful to the audiences for their helpful comments, especially E. J. Coffman, Agnieszka Jaworska, Coleen Macnamara, Annette Mendola, Michael Nelson, and David Reidy. The ideas that eventually found their way into this paper greatly benefitted from, and were shaped by, my outstanding fellow graduate students at UC, Riverside: Justin Coates, Ben Mitchell-Yellin, Garrett Pendergraft, Philip Swenson, Patrick Todd, and Neal Tognazzini. Finally, I owe a deep debt of gratitude to my assiduous and thoughtful dissertation committee, whose critical feedback significantly helped to mold this paper into its present form: John Fischer, Michael Nelson, Manuel Vargas, and Gary Watson.

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Department of Philosophy, Biola University, 13800 Biola Ave., La Mirada, CA, 90639, USA
Christopher Evan Franklin

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Franklin, C.E. A theory of the normative force of pleas. Philos Stud 163, 479–502 (2013). https://doi.org/10.1007/s11098-011-9826-y

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Published: 12 October 2011
Issue Date: March 2013
DOI: https://doi.org/10.1007/s11098-011-9826-y

Keywords

Moral responsibility
Free will
Blame
Excuse
Ability
Addiction