Antony Duff

Psychopathy and Moral Understanding

Critics of contemporary psychiatry argue that concepts of mental disorder are wrongly used to exclude from ordinary human rights and relationships people who are fully rational and responsible; that the pseudomedical terminology of disorder gives a spurious air of objectivity to our value judgements on those whose conduct we find unacceptable and disguises the fact that we are imposing on them our own moral and social values.1 Criticism has been fiercest of the concept of “psychopathy”: even critics who allow the concept of mental disorder to be legitimately extended beyond the narrow limits of the M’Naghten Rules dismiss “psychopathy” as a pseudomedical moral judgment.2 They argue that this “diagnosis,” based solely on the antisocial conduct it is meant to explain, is vacuously circular; that it marks only our disapproval of the conduct, not the medical discovery of its origin in a disordered condition of mind; that we cannot distinguish a disordered psychopath from a rational criminal or rebel.

Retributive Punishment - Ideals and Actualities

A consequentialist holds that systems of criminal punishment must be justified, if they can be justified at all, by their consequential benefits. It is a contingent fact, if it is a fact at all, that these benefits are most efficiently attained by a system of punishment, and by punishments which ordinary moralists would regard as just; and a thorough-going consequentialist must be ready in principle to justify punishments which many would condemn as unjust. A retributivist, on the other hand, insists that the justice of a system or instance of punishment is essential to its justification; and that the demands of justice cannot be reduced to those of consequential utility. Retributivist accounts of punishment come in a variety of forms: we must distinguish those who insist only that guilt is a necessary, not a sufficient, condition of justified punishment from those who insist that punishment must be fully justified by reference to a past offence; and amongst the latter we find various accounts of how it is that an offence justifies or requires punishment. But essential to any retributivist account is the claim that an adequate justification of punishment must cite not, or not only, its consequential benefits, but its relationship to a past offence: it is a non-consequentialist requirement of justice that punishment must be of an offender, for an offence; that only the guilty may be punished, and that the severity of their punishments should be limited, if not completely determined, by the seriousness of the offences for which they are punished.

Responsibility, Retribution and the “Voluntary”: a Response to Williams

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g. , deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the states power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.