[ Pobierz całość w formacie PDF ]
.²p The person who pleads duress, or one of the other types of emotion-basedexcuse suggested earlier, seeks to be excused for the particular crime (theft, assault,or whatever) that he committed.If his plea fails, it is for that crime, not for thevice displayed in it, that he is convicted.Second, virtue and vice are relatively lasting character traits.We cannot havea virtue or a vice just for a day or a week.In determining a defendant s criminalliability, however, courts are not interested in whether her criminal actiondisplayed a lasting vice.Of course, to see her as a rational and responsible agentat all, we must assume that the emotions, beliefs, and intentions from which heraction flows have some diachronic identity and structure.But the court is notinterested in whether those structures are structures of vice.Third, the virtue ethicist should be interested not just in whether we arevirtuous or vicious, but in what specific virtues or vices we display.She will wantto distinguish, for instance, the coward from the avaricious person; the bullyfrom the bad-tempered person who is too quick to anger; and so on.She willalso want to distinguish the vicious person from the weak-willed person, and thetruly virtuous person from the self-controlled person.²¹ Such distinctions do not,however, figure in legal determinations of criminal liability.The law does notclassify crimes by reference to the vices that they display.What count in law as²p On the distinction between objects and conditions of liability, see n.5 above.The suggestionthat the objects of liability are actions is itself neither clear nor uncontroversial: see Duff 2004.²¹ Or she will do so if she draws her inspiration from Aristotle.I take it, however, that virtuetheorists who do not distinguish weakness of will from vice will still want to distinguish suchweakness from other kinds of vice. 104 R.A.Duffinstances of the same crime might display what would count from the perspectiveof virtue theory as quite different vices or defects.An assault, for instance, mightdisplay cruelty, or excessive anger, or hatred, or cowardice (if, for instance, it wascommitted under duress that was not serious enough to excuse it, or from fear oflosing face with one s peers), or greed (if it was committed as part of a robbery,for instance, or for pay).Again, it might display a kind of weakness of will ratherthan an entrenched vice.But none of these discriminations, crucial as they arefor virtue theorists, will be relevant to the offender s fate at his trial.He will beconvicted and punished simply for the assault.Sometimes the definitions of offences will admittedly include what looks like areference to a particular vice: theft, for instance, requires dishonesty ;²²accordingto section 28 of the Crime and Disorder Act 1998, specified offences are racially aggravated if they are motivated by racial hatred.Furthermore, it mightbe suggested that the particular vice or weakness displayed by the particulardefendant should be relevant at the sentencing stage, even if it is not relevantto his conviction.However, even these definitions of offences fall well short ofrequiring proof of a fully fledged vice of vicious dispositions of perception,emotion, and deliberation (Duff 2002: 169 74).And in so far as the defendant scharacter is relevant to sentencing at all, what matters is not the particular vicehe displayed but such issues as the seriousness of the particular offence and thelikely effect on him of this or that possible sentence issues that are radicallyunderdetermined by attention to the particular vice that his crime might havedisplayed.My conclusion is, therefore, a mixed one.Virtue jurisprudents can find somecomfort in the analyses of duress and provocation sketched in sections 2 3, andin the suggestion that we ought to recognize a broader defence to cover criminalactions motivated by other kinds of worthy or valuable emotion.But this fallsfar short of giving substantive notions of virtue or vice the kind of central role indetermining or grounding criminal liability that is sometimes claimed for them.We can say that anyone who is justly convicted of a crime will have displayedsome vice or weakness in the action that constituted the crime
[ Pobierz całość w formacie PDF ]