Puzzling About State Excuses as an Instance of Group Excuses
Osgoode Hall Law School, Toronto
October 30, 2011
THE CONSTITUTION OF THE CRIMINAL LAW, R.A. Duff, L. Farmer, S. Marshall, M. Renzo, and V. Tadros, eds., Oxford University Press, Forthcoming
Osgoode CLPE Research Paper No. 29/2011
Can the state, as opposed to its individual human members in their personal capacity, intelligibly seek to avoid blame for unjustified wrongdoing by invoking excuses (as opposed to justifications)? Insofar as it can, should such claims ever be given moral and legal recognition? While a number of theorists have denied it in passing, the question remains radically under-explored.
In this article (in its penultimate draft version), I seek to identify the main metaphysical and moral objections to state excuses, and begin to investigate their strength. I work from the ecumenical assumption that general understandings of modern states as group moral agents proper or as mere fictional points of imputation for individual behavior are both plausible, and that the question of state excuses should be asked in terms of both paradigms. Issues addressed include: the lack of state consciousness/affect, the nature and relevance of developmental and executive defects in group agents, the value of state interests and how interests relate to plausible claims of excuses, the shortfall of responsibility argument for group responsibility and its interface with state excuses, the symbolic and consequential (dis)value that state excuses may have, as well as concerns that states are entities that should live up to outstandingly high virtuous standards of impartiality and equanimity.
I conclude that even if the range of excuses available to states does not overlap neatly with excuses available to ordinary individuals, some excuses may still be morally available to states. More generally, I emphasize the need for a systematic discussion of group excuses writ large, and of their relationship with the wider question of when group entities may legitimately be singled out to bear adverse normative consequences for wrongdoing.
Number of Pages in PDF File: 44
Keywords: excuses, justifications, state, group, collective, corporate agency, responsibility, fictions of agency and responsibility, group consciousness, affect, constitutional disorders, state interests, shortfall of responsibility, symbolic and consequential value, state impartiality, virtue, Pettit
Date posted: October 31, 2011 ; Last revised: August 23, 2012