What Temptation Could Not Be

Forthcoming in Law and the Philosophy of Mind, edited by Enrique Villanueva, Amsterdam: Rodopi, 2014

U of Michigan Law Public Law & Research Paper No. 394

44 Pages Posted: 20 Mar 2014 Last revised: 25 Mar 2014

Gabriel Mendlow

University of Michigan Law School; University of Michigan at Ann Arbor - Department of Philosophy

Date Written: February 3, 2014

Abstract

Prominent theories of the criminal law borrow heavily from the two leading theories of temptation — the evaluative conception of temptation, which conceives emotion and desire as essentially involving a kind of evaluation, and the mechanistic conception of temptation, which conceives emotion and desire as essentially involving felt motivation. As I explain, both conceptions of temptation are inconsistent with the possibility of akratic action, that is, action contrary to a person’s conscious better judgment. Both are inconsistent with the possibility of akratic action because both are covertly inconsistent with a two-fold psychological assumption that undergirds common beliefs about human action and lies at the heart of the law of criminal responsibility: that resisting a powerful temptation is extremely difficult yet not ordinarily impossible. I reveal these inconsistencies and offer in place of the leading theories of temptation a theory of affective desire as primitive psychic attraction, an elemental psychological state typically accompanied by evaluation and motivation but not reducible to either one. I then show how this theory of desire is consistent with the possibility of akratic action, with the two-fold psychological assumption at the heart of the law of criminal responsibility, and, in particular, with the defense of provocation.

Keywords: criminal law, responsibility, provocation, temptation, emotion, desire, akrasia, weakness of will

Suggested Citation

Mendlow, Gabriel, What Temptation Could Not Be (February 3, 2014). Forthcoming in Law and the Philosophy of Mind, edited by Enrique Villanueva, Amsterdam: Rodopi, 2014; U of Michigan Law Public Law & Research Paper No. 394. Available at SSRN: https://ssrn.com/abstract=2411851

Gabriel Mendlow (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

University of Michigan at Ann Arbor - Department of Philosophy ( email )

Ann Arbor, MI
United States

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