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. 102 R.A.Duff5 VIRTUE JURISPRUDENCE AGAINI have argued that we can give a plausible Aristotelian account of duress andprovocation as defences.I have not argued here that this account is better (moreilluminating, or making more plausible moral sense) than those generated byother theories of criminal liability for instance, than the sort of account thatwould be offered by those who ground criminal liability in choice, and who wouldargue that we must explain such defences in terms either of some impairmentof the agent s rational capacities, or of her lack of a fair opportunity to exerciseher capacities (Hart 1968; Moore 1997: ch.13; Morse 1998).But suppose thatsuch an argument could be provided, and that we should accept the Aristotelianaccount of the duress and provocation defences.Does this offer any support tothe larger claims of virtue jurisprudence?What excuses the defendant who acts under duress is that her action flowsfrom motives, from emotions, that are virtuous or at least non-vicious, and thatit does not display a serious lack of the modest kinds of civic virtue (of courage,of respect for the interests and rights that the law protects) or self-control thatcitizens can properly demand of each other.In short, her action does not displaythe kind of vice or weakness that her fellow-citizens can properly condemn.Thisanalysis does seem to give substantive notions of virtue and vice a substantial rolein relation to at least this significant aspect of the criminal law.There would,no doubt, be relatively few cases, even if we extended the defence in the waysuggested in section 4, in which such a defence would be offered.But oncenotions of virtue and vice have been given this foothold within the criminallaw, it might be hard to resist the argument that they are essentially involved,albeit more often implicitly than explicitly, in the grounds of criminal liability ingeneral.yFor, the virtue jurisprudent can now claim, if we ask why virtue and viceshould play this role in the analysis of duress and provocation, why we shouldexcuse the agent whose action does not display a serious lack of minimal civicvirtue or the active presence of civic vice, the only plausible answer is that suchvice or lack of virtue is a general basis of criminal liability.What makes anagent criminally liable, when he is criminally liable, is not just the fact that hecommitted a criminal action, but that in doing so he displayed a kind of civic vice,or serious lack of even minimal civic virtue, that makes him deserving of publiccondemnation.He can avoid such condemnation by showing, as someone whoacts under exculpatory duress can show, that although his action was criminaly Compare Huigens s arguments (Huigens 1995 and 2002) though his account of virtueand vice differs from that assumed here, in that he focuses on the quality of the agent s practicalreasoning and his conception of the good, and does not give the importance that I give to the roleof emotions. Virtue Jurisprudence 103(since it was not justified), it did not display the relevant kind of vice.In mostcases no direct reference need be made to this dimension of the agent s criminalliability, since proof of the standard elements of a crime usually constitutes proofof the relevant kind of vice.But what justifies holding the agent criminally liableis still the vice displayed in his action as is shown by the fact that he must beacquitted when his criminal action does not display such vice.There is something to the virtue jurisprudent s argument here.A personis justly convicted of a criminal offence only if her commission of the crimedisplayed a serious lack of civic virtue (of that kind and degree of virtue thatcitizens can properly demand of each other on pain of public condemnationand punishment), or a culpable civic vice (vice of a kind that merits her publiccondemnation by her fellow ćitizens).However, it is still not clear how substantiala role this gives to substantive notions of virtue and vice in our understanding ofthe grounds of criminal liability.First, it is not yet plausible to claim that vice is the object of criminal liability:that what offenders are convicted, condemned and punished for is the vice thattheir actions display [ Pobierz całość w formacie PDF ] |
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