R.A. Duff

R.A. Duff (University of Stirling), “Virtue Jurisprudence,” with commentary by Lawrence Solum (University of Illinois—Law).  The paper can be found here.

Comments

[Thom Brooks]

Antony Duff provides a compelling account, but not of virtue and vice --- rather on how emotions are relevant to our thinking about the law via the concept of 'reasonableness'.

When we think about what the reasonable man might do in a particular situation, this man is not Star Trek's Spock: he or she is a person with emotions that may or may not reasonably influence the person's activities in response to particular situations.

For example, suppose that gun shots are heard coming from a dark street late at night. A policeman arrives to discover a figure in the shadows holding an object that may be this gun. The policeman demands the person stop moving and drop the object; this person does neither; the policeman fires his gun and kills this person. The dead person was not clutching a gun, but a table-leg.

This is justified self-defence. It is justified not because of a true belief---the policeman's life was not actually under threat---or rational calculation (however this works). What justifies his action is his justified fear. His fear is justifiable because it is reasonable for him to fear for his life. Even though his life was not actually under threat, it is reasonable for him to act as if he was. This is because his fear is reasonable: he is not acting out of paranoia.

This example (and explanation) we find in the work of others, such as Martha Nussbaum (in particular, her Hiding from Humanity which I say some words about here: http://ssrn.com/abstract=889702 ). Following this view, we ought to (and we do) be sensitive to the particulars of cases and how our emotions unfold within them. There are other examples where the reasonableness of our emotions does some good work making better sense of the many peculiarities of our laws, in both the US and UK.

For me, this all seems entirely correct and convincing. To the extent that Duff's paper gives expression to these ideas, I think his case is compelling. But it is not a compelling story about virtue and vice. Neither appear (perhaps interestingly) in Nussbaum's discussions of emotions and law nor either (really) in Duff's paper.

*Of course*, this is NOT a criticism of Duff's paper. He isn't a follower of virtue jurisprudence after all (if I've read him correctly). This is all to the good.

Yet, it is to follow him---normally (as here) a well advised general strategy to adopt(!)---and say that while virtue jurisprudence lawyers are correct to alert us to how our emotions are legitimately relevant to law, they fail to show us much more. Let's think about our emotions and law. Let's drop worrying about how virtue and vice fit into the picture---they don't seem to, at least in any meaningful way.

A final thought. It is somewhat disappointing to see virtue jurisprudence lawyers taking the credit for this valid and interesting position (e.g., our emotions are important to our thinking about law). I wouldn't want them to take this credit.

The credit might rather be due to Idealists, as part of their theories of ethics and law. (All something I am trying to develop, such as in my paper on "An Idealist Theory of Punishment": http://ssrn.com/abstract=869444 )

Since Plato, Idealists have often recognized that reason and emotion have a role to play together in our ethical and legal thought. Whether it is twin steeds balanced by Plato's charioteer or Hegel's rooting of the state in familial love through to British Idealists, such as Green, with such unlikely modern day exponents, such as Nussbaum.

My point here is simply this. There is a lot to say about emotions and law. Things have been said (and now more often defended) by Idealists and others (such as Nussbaum) for many decades. Yet, virtue and vice don't figure properly into this account.

To this effect, Duff is quite right to say sensible (and justifiable) things about emotion and the law and remain sceptical about virtue jurisprudence.

To this end, I agree wholeheartedly with him. As always, a true pleasure to read!

[H L Ho]

As usual, Duff writes with admirable clarity and force. It is foolish of me to post a comment when I am new to the literature. But there are some puzzles I can’t resist airing, even at the risk of showing my ignorance. I apologize if (as is likely to be the case) what I say is hopelessly confused!

Duff acknowledges that we can give virtue ‘a significant auxiliary role in relation to the criminal law’. He notes that some writers (such as Solum) have tried to do this by asking ‘what virtues legal officials… need if they are to fulfil their responsibilities properly, and whether there are distinctive virtues that belong to such roles.’ He criticizes this approach for the failure:

‘to give virtue an essential role within our understanding of law…. Given an understanding of what law is and what it requires, we can go on to ask what virtues citizens or officials require, but that initial understanding of the law is not set in terms of virtue [or] vice: we can ask what virtues judges need if they are reliably to reach just decisions by just procedures, but only given a prior understanding of what constitutes a just procedure or a just decision – an understanding in which notions of virtue or vice do not… play any essential or constitutive role.’ (At pp 3-4)

According to Duff, ‘a more plausible approach for virtue theorists is to argue some substantive notions of virtue and vice play an essential role in some more particular and limited legal context or in relation to some particular legal doctrine’. And he proceeds to argue in his paper that there is indeed ‘an essential, constitutive role for notions of virtue and vice in relation to two specific criminal law defenses – duress and provocation.’

It strikes me that Duff’s theory may need to be supplemented by the kind of virtue theory pioneered by Solum where the focus is on the virtues and vices not of the defendant but of the judge. In the end, isn’t Duff making a powerful call, which is echoed by Brooks in his comments, for the law to require the exercise of empathy on the part of the judge (or jury) at a criminal trial? The judge (or jury) should, in seeking to convict, first seek to understand why the defendant acted as she did, taking into account the pressure she faced, the emotions she felt at the relevant time: in short, to feel as she did.

This brings me back to the quotation from pp 3-4 of Duff’s paper set out above. I have two comments. First, I wonder if this is not a case, pace Duff, where the notion of a judicial virtue (empathy) plays an essential role in defining the justice of the criminal process? Could it not be argued that empathy (more fully, empathic understanding) is a distinctive judicial virtue along this line:

a) The justice of a conviction depends on the justice of the process by which the decision to convict is reached.

b) The justice of that process is dependent on the exercise of sufficient empathy by the judge (or jury) at the trial.

c) Where the judge (or jury) fails to exercise sufficient empathy, the criminal process, and therefore the conviction, is, for that very reason, unjust.

Secondly, take the broad defence proposed by Duff that ‘the defendant is not guilty… if he acted under a kind of pressure, or under the influence of an emotion, that would… have led a reasonable person to act as he did’. The role of the ‘reasonable person’ test is, Duff stresses in a footnote, ‘to determine whether this defendant’s response was reasonable’. Has not our understanding of the requirements of this law, of how it applies in a particular case, to be reached through empathy with the defendant? Does this virtue not then play ‘an essential role within our understanding of (criminal) law’?

[John K. Alexander]

I was reading Ho's comment and the following question came to mind. Assume Person A did x and x is a punishable offense. Person A did x because he had a certain emotion that 'caused' him to do x, where a person who did not have this emotion would not have done x. In what situation would a 'reasonable person standard' allow us to use this emotion to mitigate (create an 'excusing condition') against punishing x to the extend allowable by law? Do we not, in fact, hold that a rational person will control that emotion so that it does not lead to one's doing x? Is not allowing an emotion to override rationality, in the sense of being able to determine what a rational person would do, namely not doing x, circumventing exactly what we want the trial to accomplish which is the correct allocation of punishment (desert) to guilt?

Consider these questions in light of this case that happened in the city where I live A baby, less then one year old, died as the result of being sodimized. Person A did this. Is there any emotion that would enable us to maintain that a rational person would do this? If there is, I think we have destroyed the idea of a 'rational person.'In short, I disagree with B (in Ho's comment above), so I do not accept C.

[Thom Brooks]

A quick note on the above discussion. To begin with, Ho reads my echo correctly: the case seems to be one of understanding how our emotions (perhaps our empathy) justifiably come into our understanding of law. Provocation and duress are great examples. However, I am unclear exactly what work the exercise of 'sufficient empathy' must do to enable just verdicts.

Regarding Alexander's comments, he asks us:

' In what situation would a 'reasonable person standard' allow us to use this emotion to mitigate (create an 'excusing condition') against punishing x to the extend allowable by law? Do we not, in fact, hold that a rational person will control that emotion so that it does not lead to one's doing x? Is not allowing an emotion to override rationality, in the sense of being able to determine what a rational person would do, namely not doing x, circumventing exactly what we want the trial to accomplish which is the correct allocation of punishment (desert) to guilt?'

Such a situation exists. Let me explain using provocation. Not all that long ago in the US, you could use provocation as a defence for killing your wife's lover. The reasonable person a few decades ago was thought to not unreasonably lose control about such matters. That was then.

Today, provocation takes a different form. In an English case (R v Pearson (1992)), two brothers killed their abusive father (using a sledgehammer). The provocation was the abuse they suffered.

It is true that we might think the rational person will always be self-restrained. However, what does teh rational person do when legitimately fearing for his life? What does she do when she genuinely believes she will be attacked (and not suffering from paranoia)? What if the reasonable man suffers from a post-trauma of some kind? The reasonable man is not Dr Spock. He is someone with feelings who sometimes lets them get the better of him. They may not excuse what he's done, but they may tempt us to minimize his sentence on account of his lack of moral responsibility.

[Thom Brooks]

On John's example of a sodomized child dying from its injuries, no, a reasonable person would never be justified doing this. Whatever moral/ethical theory you hold, this is wrong. Thus, we may all be in agreement.

[H L Ho]

Yes, I agree with Brooks there. Also, a case may arise where, despite trying her best, the judge can't understand why the accused person acted as he did. That doesn't mean that the judge must, for that reason alone, return an acquittal. In a case recently decided here, the judge convicted a man of murder even though he can't figure out what led him to kill. The judge wrote:
This truly is a sad riddle
How could one savagely strangle
And so unfeelingly mangle
The woman one had just cuddled?

[John K. Alexander]

If we are in agreement that no rational person would sodimize a child then I submit that we are appealing to the nature of the action, not the intentions/emotions of the person who committed this action. I agree that the rational person is not a Mr. Spock, but a rational person is one who is able to control, through the use of reason, those emotions, that if left uncontrolled, will lead to actions that are impermissible.

To adress Thom's example. 'Provacation' means to provoke. Person A find out that his wife has a lover and is provoked to anger. Does this enatil that he is justified, or excused in part, if he kills the lover? There are plenty of people who find out that their spouses have lovers and are provoked to anger by this finding, but who do not kill the lover because they are able, through the use of reason, to control the anger and not let it 'spill over' into actions that are not permissible.

This is not to say that people who fears for their lives, or are reacting to tremendous abuse do not act rationally when defending themselves. Such an action may be a rational response to a situation, but we are relying on the situations as described to recognize the role that fear, etc. can play in undertanding, justifying, or excusing, an action. After all, rational people do not want to be needlessly and avoidabley harmed therefore the avoidence of harm is a rational response to a situation that is harmful with, or without, resorting to the underlying emotion.

There is a difference between understanding why a person is angry (or showing some emotion) and using this understanding of the emotion as a mitigating circumstance that minimizes liability or accountabilty. It seems, to me anyway, that using the 'emotional defense' and the call for empathy may in fact minimize the concept of moral responsiblity and accountability. I can certainly feel sorry of A (an emotion), but still find him guilty of a crime and punish him accordingly.

[John K. Alexander]

A brief remark on Ho's response. The judge's inability to understand why a person did what he did is not relevant to the decision she must reach. Often we do not understand why something is the way it is, but it is sufficient that we do know the way it is so that we can make a reasoned decision on what to do.

For example, I do not completely understand why people will act as suicide bombers and kill innocent people, but that does not stop me from realizing that killing innocent people is wrong.

[Thom Brooks]

On John's second point:

If we cannot understand why suicide bombers kill innocent people, then our position can be summed up like this: their behaviour isn't reasonable. That is, the 'reasonable man' (whomever this is) wouldn't do such a thing. The emotions they feel (hatred, anger, etc.) perhaps are legitimate/illegitimate, but they do not legitimate murder. By this I mean, people may have legitimate emotions (fear of UFO's), but these emotions only count in our understanding of law when reasonable and not the case of paranoia. We can have emotions that don't count because they are unreasonable---others by and large disagree that we should have done what we have done. We can have false beliefs and act reasonably---say, the policman who shoots dead an unarmed person on a dark night after shots were heard in the area, this person holding an object and refusing to stop and drop his object. Fear of UFO's is paranoia. Fear of being shot on a dark street is reasonable. The reasonableness of the policeman excuses his wrongfully killing an innocent person. The suicide bomber (arguably) fails to satisfy this reasonableness standard.

For these reasons, I still take Ho's point.

[Thom Brooks]

On John's first point:

You are right to say that these days people became very angry when they discover their lover is having an affair with someone else and most people are not motivated to kill the third person. Public attitudes have (thankfully) moved. This was not true 100 years ago. Because it was not true, people did (arguably) view it as sufficient provocation. Murdering the lover of one's partner was not then 'legal', only excused: excused because the emotion felt by the killer was generally viewed as sufficiently strong to overwhelm a reasonable person.

Nowadays, provocation takes different forms. What the reasonable man does may seem obvious. It is easy to suppose that no one ought ever lose self-control: if you do, you are responsible for what you do. However, take women abused by their husbands. This is often not simply a case of calling the police and everything will be fine. Indeed, half the time women only want the police to help save their marriage. (Of course, men are victims of domestic abuse in about 20% of cases, if we accept Linda Mills's account in her recent book Insult to Injury.) A person sexually, physically, and emotionally abused over several years may be provoked to cause violence to her/his abuser. We do not say that violence is acceptable. What we say is that it can sometimes be excusable (either waranting no charge at all or a lesser charge/sentence) based upon the relevant circumstances, namely, whether the actions were reasonable. A reasonable person may well have the straw on the camel's back broken (so to speak) and be provoked into attacking one's abuser. This seems fine to me.

Or imagine another case. Suppose you are shopping in a supermarket with your young daughter. A man suddenly grabs her arm and runs with her to the exit, jumping into a car and driving off. You engage in close pursuit: you knock down people chasing after him, perhaps steal someone's car and race after him. The situation ends with no damage, no fighting, your child is fine.

It seems to me that any damage to the car stolen or perhaps to people knocked down should be repaid (from one of the parties), but it is clear that the victim ought not be charged with assaulting supermarket patrons (all things considered) nor charged with theft of a car (all things considered), provided damages were paid for, etc etc.

Sometimes reasonable people are overwhelmed by their emotions and not unreasonably. This hypothetical case hopefully draws out this intuition, although I do share your worry. I hope this makes more sense!

[John K. Alexander]

This is a very interesting exchange.

Question re Thom's last point: On the TV series "Lost" Michael leads four of his friends into a trap to save his son from the 'others.' His intention was to save his son, but was this action morally permissible in that it resulted in harming four people?

Imagine that four people had been killed by the father trying to save his daughter. Is not the father morally rresponsible for causing this harm and therefore subject to negative sanctions of some sort?

The intention is the same in both cases, but I submit it does not excuse the harm done even if we can empathize with the fathers.

As far as abused people harming their abusers, I am not sure that we have a serious disagreement here. This action seems to be a reasonable reaction to the harm they are experiencing. On this we agree. However, I would say that the violence to the abuser is acceptable. The situation that the abused are in is one that rational people would seek to avoid and acts of violence may be the only way to do so.

As to Thom's second point: One of the problems that we are facing is that we have yet to define 'reasonable.' Would a reasonable person become a suicide bomber or fly airplanes into buildlings? If we accept a coherence/consistency framework for determining what is true then these people may be reasoanble (rational) in that their ideas are internally coherent and consistent with one another. But, even if we accept this, would we not find their actions morally problematic in that their ideas are not externally coherent and consistent with ours? Unless we can come up with a 'reasonable person standard' that holds for all people, which I think is unlikely, then I think we must refer to the action, not the rationality of the belief structure, as the main focal point for determining the moral status of the action.

Maybe in the end we do not disgree on the key points, only the role that empathy (emotions) plays in justifying or excusing the actions of others. It may be good to remember Hume here, that our ability and motivation to be ethical rests on our ability to sympathize with the suffering of others and that reason can only then be used to determine how we should react to the sympathetic (empathetic) feelings we have. If this is so, then it is the suffering that others are experiencing that emables us to excuse (or possible justify) the actions of those that are suffering. But, it is important to remember that this suffering is also part of the description of the situation and does not stand alone. I may empathize with both the father and the abused person, but find that actions of one morally impermissible and the other morally permissible. Consequnetly, I still have a problem with Ho's second premise: "The justice of that process is dependent on the exercise of sufficient empathy by the judge (or jury) at the trial." I am worried that the use of 'sufficient' begs the question.

[Thom Brooks]

I take John's point about Hume: that suffering is part of the description of the situation. I suppose what I would want to highlight is not merely "the action" (as it were), but the context of this action. Person A stabbing Person B is either a crime or excusable depending not on the action, but its context, the situation (and, hence, I agree with the Hume point). It isn't the fact of stabbing that tells us all we need to know. In fact, it may be only one small piece of the larger picture. Was any past history between the two relevant? Was Person A acting in self-defence? Was Person A provoked? And so on.

On a final point, we agree that an abused person might be justified in claiming provocation as a defence for his/her attacking the abuser, as the law now recognizes. What is reasonable about the defence is that it is excusable that someone suffering from the emotional/psychological (and often physical) effects of abuse "snaps," in essence, attacking the abuser. Emotions are relevant when they are reasonable.

As a final, final point, it is true that the 'reasonable person' standard and this question over sufficiency are points well taken. Perhaps our trick should lie in fleshing these concepts out rather than discarding them...?