CHOICE, CHARACTER, AND CRIMINAL LIABILITY.

The article argues that the controversy surrounding choice or character, in relation to criminal liability, is misleading, since it rests on a false dichotomy. The choice conception is sometimes related to Kant's view of the will as the locus of moral worth, and as the focus of moral appraisal. The moral worth of my action depends, not on its actual outcome; nor on such inclinations as may help to motivate it, but on whether my will accords with the moral law. Some find a modern Kantianism in Hart's principle that a person is justly punished only if he had the capacity, and a fair opportunity, to obey the law. Now this principle does not found liability on actual choice: indeed, it permits liability for negligence, which does not involve choosing to break the law. Rather, it specifies a minimal condition of liability, which is satisfied alike by a willful murderer and by one who negligently causes death. One ancestor of the character conception of criminal liability is Hume's argument that character is the proper object of moral appraisal. It is easy to enough to sketch a character conception of criminal liability, but harder to explain it in sufficiently clear detail. The proper focus of the criminal process is not, the character theorist argues, on the particular actions for which a defendant is formally convicted and sentenced, but on some character-trait that his criminal act revealed.