Forthcoming in Law and the Philosophy of Mind, edited by Enrique Villanueva, Amsterdam: Rodopi, 2014
44 Pages Posted: 20 Mar 2014 Last revised: 25 Mar 2014
Date Written: February 3, 2014
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: 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