Judging Evil: Rethinking the Law of Murder and Manslaughter

By Samuel H. Pillsbury | Go to book overview

2
The Value of Choice

In the preface I raised a fundamental question about moral responsibility and punishment. I wrote of child-killer Ernest John Dobbert Jr. whose abusive tendencies were, in a sense, beaten into him by his own father. This fact might not be of great significance if we took a utilitarian approach to punishment.We could say that a harsh sentence might force Dobbert to change; it would at least prevent further harm to his children, and the example of his punishment might deter others from brutalizing their children. The problem comes if we insist that Dobbert must deserve his punishment. The word deserve seems to imply that Dobbert freely chose to harm his children. In what sense, if any, is this true?1

The problem of free will is one that humans have pondered for thousands of years. It has been a staple of philosophic inquiry since the beginning of that discipline. I do not claim to advance philosophic understanding of the problem here. My aim is pragmatic, to find a way to go forward in the face of philosophic controversy. I seek to structure the question of responsible choice in order to validate the most important aspects of our human experience. In this endeavor, I assemble a number of preexisting arguments about different perspectives on human behavior which support the special value of choice needed for deserved punishment. In chapter 3 I use the concepts of responsible choice developed here to form a theory of deserved punishment.

Responsible choice proves a deceptively difficult subject. Few concepts could be more familiar to us than the notion that we choose our actions for ourselves, and for these choices should be held responsible. All aspects of our lives reflect our faith in choice as the bulwark of responsibility. In work and play, in romance, in friendship and even in disputes, we expect ourselves and others to make choices that make a difference, that have consequences according to complex systems of responsibility. But when we view choice from the scientific perspective, this familiar and valued concept looks suddenly strange and frightening. Now human behavior appears as the product of genetic and environmental influences, most unchosen.Viewed from the scien-

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Judging Evil: Rethinking the Law of Murder and Manslaughter
Table of contents

Table of contents

  • Judging Evil - Rethinking the Law of Murder and Manslaughter iii
  • Contents v
  • Preface the Challenge of Criminal Responsibility vii
  • Acknowledgments xiii
  • Part I - Deserved Punishment 1
  • 1: A Question of Value 3
  • 2: The Value of Choice 18
  • 3: Punishment as Defense of Value 32
  • 4: Just Punishment in an Unjust Society 47
  • 5: Moralizing the Passions of Punishment 62
  • Part II - Defining Murder and Manslaughter 77
  • 6: From Principles to Rules - An Introduction to Mens Rea 79
  • 7: The Worst Crime of All 98
  • 8: Crimes of Passion 125
  • 9: Crimes of Indifference 161
  • Appendix - Proposed Jury Instructions 189
  • Notes 197
  • Index 261
  • About the Author 264
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