Philosophy | Legal Philosophy
P545 | 25451 | Baron

This course will examine philosophical issues (especially moral
philosophical issues) in criminal law, often centering on issues of
culpability ("mens rea" issues). We will look at some specific
defenses, self-defense and provocation, and at general issues that
arise in connection with most defenses. In connection with self-
defense we will focus mainly on the question of how to
understand 'reasonable' in the requirement that the defendant
reasonably believed that s/he faced an imminent threat and needed to
use force to repel it, but will also address the question of why the
threat should have to be imminent. (In US law it does have to be
imminent; in Canadian and Australian law it does not.)

The question of how to understand 'reasonable' also comes up in
connection with the provocation (or “heat of passion”) defense,
according to which the defendant is to be convicted only of
manslaughter, not of murder, if s/he killed in the heat of passion
and if a reasonable person would have been provoked to lose self-
control. In addition, there are intriguing issues about the nature
of self-control, what it is to lose it, and how much the law should
require of us by way of self-control. That the provocation defense
has plenty to fascinate philosophers is evident from the following
explanation from a 19th c. British case of the idea behind the
provocation defense and its status as merely a partial
defense:  "Though the law condescends to human frailty, it will not
indulge human ferocity. It considers man to be a rational being, and
requires that he should exercise a reasonable control over his

In addition to examining issues specific to the defenses mentioned
above and the recurring question of how to understand "the
reasonable person" (until recently, "the reasonable man"), we will
discuss justifications and excuses, and how they differ (a question
that turns out to bear on the issue of reasonableness. We will also
discuss negligence, and address arguments claiming that it should
never be a sufficient mens rea, at least to any serious crime. A
broader topic we will also take up (related to most, if not all, of
the issues listed) above is responsibility for character.
Readings for this course will include articles and excerpts from
books by philosophers and legal scholars (among them, J.L. Austin,
Sarah Buss, Joshua Dressler, Anthony Duff, Kimberly Ferzan, Claire
Finkelstein, Jean Hampton, Jeremy Horder, Hibi Pendleton, Arthur
Ripstein, Gideon Rosen, Andrew Simester, Ken Simons, Jay Wallace,
and Gary Watson), as well as several (abbreviated) cases, and
excerpts from the Model Penal Code.