Punishment and Responsibility: Essays in the Philosophy of Law

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1 University Press Scholarship Online You are looking at 1-10 of 12 items for: keywords : act of will Punishment and Responsibility: Essays in the Philosophy of Law H.L.A. Hart Published in print: 2008 Published Online: January 2009 ISBN: eisbn: Item type: book acprof:oso/ This classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. Forty years on, its arguments are as powerful as ever. H. L. A. Hart offers an alternative to retributive thinking about criminal punishment that nevertheless preserves the central distinction between guilt and innocence. He also provides an account of criminal responsibility that links the distinction between guilt and innocence closely to the ideal of the rule of law, and thereby attempts to by-pass unnerving debates about free will and determinism. Always engaged with live issues of law and public policy, Hart makes difficult philosophical puzzles accessible and immediate to a wide range of readers. For this new edition, otherwise a reproduction of the original, John Gardner adds an introduction, which provides a critical engagement with the book's main arguments, and explains the continuing importance of Hart's ideas in spite of the intervening revival of retributive thinking in both academic and policy circles. Unavailable for ten years, the new edition of Punishment and Responsibility makes available again the central text in the field for a new generation of academics, students and professionals engaged in criminal justice and penal policy. The Freedom of Decisions and Other Actions Randolph Clarke in Libertarian Accounts of Free Will Published in print: 2003 Published Online: January 2005 ISBN: eisbn: X Libertarian accounts commonly hold that only certain acts of will, such as decisions (or choices), can be directly free, with the freedom of actions of Page 1 of 5

2 other types whether mental or overt, bodily actions deriving from that of these acts of will. Here this willist view of freedom is rejected in favor of an actionist view. Event-causal libertarian accounts (and agent-causal accounts that employ an event-causal theory of action) can do as good a job of characterizing the freedom of actions other than decisions as they can in the case of decisions. Bodies and Wills Bryan Magee in The Philosophy of Schopenhauer Published in print: 1997 Published Online: November 2003 ISBN: eisbn: To the proposition that I can know objects only from outside, and through the forms of sense and intellect that my personal equipment makes available, there is a single exception and that is my own body. Each of us is a physical object that knows one physical object from inside, namely itself. But I experience the movements of this body primarily as an agent rather than through organs of sense or intellect. My willed movements are perceived by others as matter in motion, but by me they are apprehended first and foremost as acts of will: the two are the same phenomenon experienced in different ways. Thinking and Willing: Their Inter-relationship acprof:oso/ Thinking and willing are indeed two different functions, but they can be connected. This is possible in different ways. One can make a statement (in the sense of the expression of the meaning of an act of thought) with the intention of thereby bringing about a certain behaviour of the person to whom it is addressed. For example, a mother says to her child: If you touch the red-hot stove-plate, you will burn yourself and it will be very painful. She makes this statement with the intention of bringing it about that the child refrains from touching the red-hot stove-plate. Or she says to the child: If you take this medicine, it will taste good. She makes this Page 2 of 5

3 statement with the intention of thereby bringing it about that the child takes the medicine. Norms which are not the Meaning of Acts of Will? Mally's Theory acprof:oso/ The failure to distinguish between a norm (an Ought) and a statement about the validity of a norm (of an Ought) leads to the view that norms, especially the norms of morality, are not the meaning of any act of will, but are norms without any norm-positing authority, and when they are commands or requirements, must be considered to be commands without any commander, requirements without any requirer. An important representative of this view is Ernst Mally (1926). True, he says that the Ought, or more strictly the ought-to-be, of a state of affairs corresponds to a willing as its objective counterpart. But he then rejects the view A ought to be means nothing other than that A is willed by someone. That is correct because willing is an Is and so cannot be an Ought. But this is not Mally's reason for rejecting this reduction of ought to willing. The Applicability of the Principle of Contradiction to Norms acprof:oso/ The basic presupposition of the principles of traditional logic concerning the truth of statements is that there are true and false statements, that is, there are statements which have the property of being true or false. Statements which are true or false are the meaning of acts of thought. But norms are the meaning of acts of will directed to the behaviour of others, and so are neither true nor false. Consequently they are not subject to the principles of traditional logic, since these relate to truth and falsity. The linguistic expression of a norm is an imperative or sollen-sentence; and when people assume that the logical principles of Page 3 of 5

4 contradiction and of inference apply to norms, they are usually thinking of sollen-sentences. Logical Problems about Grounding the Validity of Norms acprof:oso/ The validity of a general norm and that of an individual norm can be represented in a syllogism in another way. In order to do so, one must begin by accepting that it is not the meaning of every act of will about the behaviour of another person which is a norm, but that a norm (i.e. an Ought binding on the addressee) exists only if the subjective meaning of the act of will about the behaviour of another person is also its objective meaning. That is the difference between the command of a highwayman and the command of a legal organ. The subjective meaning of an act of will about the behaviour of another person is also its objective meaning (and that means, is a valid, binding norm) if this act is empowered by a valid norm of a positive moral or legal order. The Principle of Autonomy Conscience as Moral Authority acprof:oso/ The theory that conscience is the moral legislator fails for the basic reason that conscience either as feeling or as knowledge is unable to posit norms, since norms prescribing how we ought to behave can only be the meaning of acts of will. But even if conscience is interpreted as a phenomenon of the will, it follows from the fact that the moral legislator for each subject is simply his own conscience that no one could judge the behaviour of others as morally good or bad. The moral evaluation of other people's behaviour presupposes that the members of a given social community react morally in generally the same way to human behaviour their own or that of others. Page 4 of 5

5 Analysis of the Act of Will, of its Meaning and of its Expression acprof:oso/ The meaning of the act of thought which precedes the act of will representing an act of commanding is not a statement. If the speaker's goal in performing an act of thought is a statement, then the meaning of this statement is to be true, and if the statement is addressed to another person, its meaning is to be considered true by this person. And just as the meaning of an act of commanding has to be distinguished from its content, so the meaning of a statement must be distinguished from its content, from that which is stated. Norm-positing Acts: Content and Description Norms: Validity and Content acprof:oso/ Whoever posits a norm, i.e. commands or prescribes a certain behaviour, wills that a person (or persons) is to behave in a certain way. Such is the meaning of the act of will we call a command. But it is not every command which is a prescription or norm, according to ordinary usage. It is only the meaning of an act of commanding which is qualified in a certain way which is a valid norm, namely an act of commanding empowered by a norm of a positive moral or legal order. Page 5 of 5

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