Partial Responsibility and Excuse

In H. Hurd (Ed.), Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (pp. 39-59), 2018. Cambridge: Cambridge University Press. doi:10.1017/9781108227025.003

San Diego Legal Studies Paper No. 17-304

22 Pages Posted: 22 Sep 2017 Last revised: 7 May 2020

See all articles by David O. Brink

David O. Brink

University of California, San Diego; University of San Diego School of Law

Date Written: 2017

Abstract

Anglo-American criminal law is broadly retributive in character, predicating blame and punishment on culpable or responsible wrongdoing. However, responsibility is scalar, and there is an important question how criminal trials should handle cases of partial responsibility, especially in light of Blackstone’s belief that it is worse to over-punish than to under-punish. I examine four approaches: (1) a bivalent system with a comparatively low threshold for responsibility/excuse operative in American criminal law; (2) a trivalent system operative in some European criminal justice systems; (3) a tetravalent system, which rounds punishment downward in response to Blackstone’s asymmetry; and (4) a fully scalar analog system that aims at proportionate justice. A bivalent criminal justice system fails to deliver just deserts in significant ways. Proportionate justice is comparatively easy to understand in principle but potentially fragile in practice. Aiming at proportionate justice may minimize unjust deserts. However, if the difficulties of implementing proportionate justice are severe enough, we might prefer a discontinuous system that is more fine-grained than bivalence. Trivalent and tetravalent systems are alternatives worth exploring.

Keywords: bivalent, trivalent, tetravalent, scalar, scalar analog system, American criminal law, European criminal justice,

JEL Classification: A00, A10, K10

Suggested Citation

Brink, David O., Partial Responsibility and Excuse (2017). In H. Hurd (Ed.), Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (pp. 39-59), 2018. Cambridge: Cambridge University Press. doi:10.1017/9781108227025.003, San Diego Legal Studies Paper No. 17-304, Available at SSRN: https://ssrn.com/abstract=3040191 or http://dx.doi.org/10.2139/ssrn.3040191

David O. Brink (Contact Author)

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HOME PAGE: http://philosophyfaculty.ucsd.edu/faculty/dbrink/

University of San Diego School of Law ( email )

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