Fairness and the Architecture of Responsibility1

Abstract

In this essay, we explore a conception of the nature and structure of responsibility that draws on ideas about moral and criminal responsibility. Though the two sorts of responsibility are not the same, the criminal law reflects central assumptions about moral responsibility, and the two concepts of responsibility have very similar structure. Our conception of responsibility draws on work of philosophers in the compatibilist tradition who focus on the choices of agents who are reasons--responsive and work in criminal jurisprudence that understands responsibility in terms of the choices of agents who have capacities for practical reason and whose situation affords them the fair opportunity to avoid wrongdoing. 2 We treat these two perspectives as potentially complementary and argue that each can learn things from the other. Specifically, we think that criminal jurisprudence needs a more systematic conception of the capacities for normative competence and that ideas from the reasons--responsive literature on moral responsibility, some familiar and some novel, can fill this need. However, we think that moral philosophers tend to focus on the capacities involved in responsibility and so tend to ignore the situational element in responsibility recognized in the criminal law literature. Our conception of responsibility brings together the dimensions of normative competence and situational control, and we factor normative competence into cognitive and volitional capacities, which we treat as equally important to normative competence and, ultimately, responsibility. Moreover, we argue that normative competence and situational control can and should be understood as expressing a common concern that blame and punishment presuppose that the agent had a fair opportunity to avoid wrongdoing. Thus, we treat the value that criminal law theorists associate with the situational element of responsibility as the umbrella concept for our conception of responsibility, one that explains the distinctive architecture of responsibility. 1 This essay is fully collaborative. The authors are listed in alphabetical order. The ideas for this essay grew out of a graduate seminar that we taught together on the topic of partial responsibility in 2008 and were refined in a seminar on responsibility that DB taught in 2011. Versions of this material were presented at

Autism and Moral Responsibility: Executive Function, Reasons Responsiveness, and Reasons Blockage

“…We do excuse for lack of competence. We do not excuse for failures to exercise these capacities properly.^ [36].…”

“…Stout's suggested revision of Fischer and Ravizza's reasons responsiveness requirement calls for systems that are Bfunctionally typical^ [21], which indicates the connection between these ideas and concepts of health. 4 Brink [36].…”

“…But how might we fail to have normative competence? On the cognitive side, Brink and Nelkin start with the ability to Brecognize wrongdoing.^ [36] On Shoemaker's theory of accountability, the key is the capacity to have regard for others, where my regard for you involves considering your projects to be meaningful and valuable because you find them so. [5].…”

“…She has a goal (to act in response 7 5 could be understood to overlap with volitional competence under Brink and Nelkin's description. [36] 8 I will use the term 'psychopath' here to refer to the character referred to in this way in the philosophical literature. [7,[44][45][46] I will not be concerned for whether this represents any clinically accurate account of any actual person.…”

How to (dis)solve Nagel's paradox about moral luck and responsibility

“…What is involved in this capacity? Two things: normative competence and situational aptness (Brink and Nelkin 2013). 25 Normative competence consists in a host of cognitive and volitional abilities that together make an agent a reasons-responsive one: the possession of these abilities allows the agent to recognize and respond to salient moral considerations-not always, of course, but with enough frequency so as to count as a competent moral agent.…”