A liberal state cannot keep its commitment to secure the equal dignity of all persons subject to its laws without assigning blame and exacting punishment for wrongful injuries like homicide. Yet it cannot assign blame for results without evaluating actor’s ends.
In this chapter, I offer an expressive account of culpability, which candidly judges the values expressed by action. This account explains why felony murders like those described in the opening lines of this book deserve severe punishment. Not only does this account of culpability better fit our practice of punishing actual harm than does a purely cognitive account, but it also better accords with other doctrines of criminal law. Finally, although judging offenders’ ends, this account authorizes punishment for reasons within the competence of a liberal state.
An expressive account of culpability begins with a conception of action as expressively, rather than instrumentally, motivated. On this view, action expresses value by identifying us with normative social practices. In The Morality of Freedom, the legal philosopher Joseph Raz denies that our desires determine our goals, arguing instead that our desires often flow from normative beliefs about what is best for us.1 Thus, he contends, we act on the basis of normative reasons or values, rather than unreflective wants.2 Frederic Schick offers a somewhat similar account of motivation in Understanding Action.3 Schick argues that our preferences are formulated in light of larger understandings of our situations given by our commitments and social roles. These commitments and understandings make some options salient to us and others unthinkable. In Value in Ethics and Economics, the moral philosopher Elizabeth Anderson offers an institutional account of value as a social practice of recognizing certain kinds of goods, which in turn shape social relations. To value is to participate in such