Actions, Agents, and Consequences

Abstract

According to an appealing and common view, the moral status of an action – whether it is wrong, for example – is sometimes important in itself in terms of the moral status of other actions – especially those that respond to the original action. This view is especially influential with respect to the criminal law. It is accepted not only by legal moralists but also by adherents of the harm principle, for example. In this paper, I argue against this view. The main arguments emphasize the distinctions between the moral status of actions, consequences, and agents. I argue that what matters, in terms of other actions, is not the moral status of the original action but rather other factors that may be confused with it, such as the moral status of its consequences – whether they are good or bad – and the moral status of the agent – whether she is praiseworthy or blameworthy. The intuitive appeal of the common view is, I argue, at least partly due to a conflation of these factors. Most importantly, once we recall the distinctions between these factors, we can see more clearly that this view lacks a compelling rationale. Or, at least, that it is based on assumptions that, first, are much more controversial than their conclusion, and, second, do not support every aspect of this view – and thus do not offer a unified foundation for this view.

Keywords:

• actions
• agents
• consequences
• moral status
• prevention
• desert

1. Introduction

According to an influential view, the moral status of one action – whether it is wrong or permissible, for example – can be important in itself in terms of the moral status of other actions.¹ For example, it is generally assumed that the fact that an action is morally wrong is a reason against facilitating the action or assisting the agent² and in favor of preventing the action,³ using (more) force in defending against it,⁴ punishing the agent,⁵ and compensating the victim (if there is one).⁶ Conversely, some hold that such responses are inappropriate with respect to actions that are morally permissible.⁷

Salient examples of this view are concerned with legal responses of these types. Indeed, the view that the moral status of actions is a reason for or against various legal responses ("legal moralism") appears to be a common answer to the questions of why, and, accordingly, when it is morally justified to use the law.⁸ An example is the claim that the law in general should promote “conformity of people’s behavior to what fundamental morality dictates given the empirical conditions.”⁹ More specific claims are concerned with particular legal fields. Regarding private law, for instance, it is claimed that the law of contracts should not enforce immoral contracts,¹⁰ and that tort law should require wrongdoers to compensate their victims.¹¹

The most prominent examples involve criminal law. As Victor Tadros points out, "much of the philosophy of the criminal law rests on the assumption that there is a close relationship between moral wrongdoing and criminalization" and that it is "relatively uncontroversial" that criminal law ought to be used in response to wrongful actions.¹² Thus, some argue that the criminal law should prohibit¹³ or prevent wrongdoing.¹⁴ Others hold that the criminal law should target certain types of wrongdoing,¹⁵ for example, “harmful” wrongdoing,¹⁶ “public” wrongdoing,¹⁷ or wrongdoing that amounts to the violation of rights.¹⁸ And many maintain that criminal law should not be used against actions that are morally permissible.¹⁹ More specifically, some argue that the criminal law should allow defensive force only against wrongful attacks²⁰ and that third parties should be allowed to assist defenders whose actions are justified but not those whose actions are wrong.²¹

The view that the moral status of actions is important to the legal response to these actions is both attractive and common. Indeed, even standard versions of the "harm principle" – which is often considered an alternative to legal moralism – are not concerned only with harm (whether the relevant actions cause harm or whether their prevention would prevent harm) but rather focus on wrongful harms.²² This is presumably so because it is implausible to use the criminal law against actions that are harmful but justified (for example, justified self-defense). And once this is noticed, it may be tempting to conclude that what ultimately matters in this respect is whether the action is wrong rather than whether it is harmful. Indeed, even some adherents of the harm principle hold that the wrongful nature of an action is itself a reason to apply criminal law against it, regardless of whether the action is harmful (namely, even if it is not). According to this explication of the harm principle, the reason why the criminal law should be used only in response to harmful actions is not that there is no reason to use it against wrongful actions that are not harmful, but rather due to other, conflicting, reasons, such as liberty or the dangers of mistake and abuse (which these scholars consider as conclusive in this context).²³ The reasoning of other advocates of the harm principle is less clear in this regard, but their arguments are at least compatible with the view that there is a reason to use criminal law in response to wrongdoing, since these arguments highlight countervailing reasons (rather than claim that there is no reason to use the criminal law against wrongful actions that are not harmful).²⁴

The view that there is sometimes a reason to respond to actions because of their moral status thus seems to underlie many common accounts in diverse moral and legal contexts.²⁵ However, despite its appeal and popularity, I argue that there are significant doubts regarding this view. The main arguments that I consider emphasize the distinctions between the moral status of actions (especially whether they are wrong or permissible), the moral status of states of affairs (the degree to which they are good or bad), and the moral status of persons (the extent to which they are praiseworthy or blameworthy, virtuous or vicious). Recalling these distinctions helps clarify which arguments are relevant to the question at hand and which are not. Accordingly, recalling these distinctions reveals more clearly that the intuitive appeal of the common view is partly due to a conflation of these factors; that it involves some unappealing implications; that it is less parsimonious than the opposing view; and, most importantly, that it lacks a compelling rationale – or, at least, that it is based on assumptions that are much more controversial than the view that they entail.

My suggestion is radical in several respects. First, I argue that the moral status of an action is never important in itself with regard to the justification of actions that respond to it. Since this suggestion applies to all responsive actions, it is more radical than views that hold that the moral status of actions is irrelevant to the justification of some responsive actions but is relevant to the justification of others. For example, one narrower proposal is that the moral status of an original action is relevant to the moral status of responsive actions that affect the agent who performed the original action but is not relevant to actions that affect others. According to this view, it matters, for example, whether defensive force is employed against a wrongful attack or if punishment is imposed on a wrongdoer, but the fact that A violates her duty to help C is not relevant to the question of whether B should help C.²⁶ In contrast, I argue that the moral status of actions is not relevant to the moral status of other actions in both types of cases. Indeed, I focus especially on actions that affect the original agents (that is, on cases in which my suggestion differs from the above narrower view).²⁷

A second way in which my suggestion is radical is that I submit that the moral status of actions is not morally significant in itself at all to the justification of other actions: that there is not even a pro tanto reason for or against responding to an action (inter alia) because of its moral status. That is, my doubts are not directed only against the view that such a reason is conclusive (all things considered). In this respect, too, my view is more radical than common versions of the view that the law should not "enforce morality" (in the sense of prohibiting and punishing wrongdoing), which emphasize the significance of the reasons against such enforcement (such as liberty or the dangers of mistake or abuse). In contrast, my claim is that there is no independent reason in favor of doing so to begin with.

Yet, in another respect, my suggestion is less radical than it may seem. I suggest that the moral status of actions is not in itself a reason for or against responsive actions, and specifically that it is not an independent and ultimate reason in this regard. This claim is compatible with the possibility that the moral status of actions is sometimes significant in other ways, especially in light of its relation to different (more basic) factors, such as the moral status of states of affairs and of persons (for example, if a person is blameworthy because she is responsible for a wrongful action).²⁸ Accordingly, (responsive) legal rules that refer to the moral status of actions (such as justificatory defenses)²⁹ may be appropriate if this is the case.

A few more clarifications should be noted at this point. First, the view that I criticize may refer to the moral status of actions in the abstract, for example, to the fact that an action is right or wrong, or to the facts in virtue of which the relevant action is right or wrong, for instance that it causes or prevents underserved harm. It is not always clear which of these versions is endorsed. But in any case, my doubts concerning this view apply to both of these versions.³⁰ Second, there are many versions of the common view that I criticize and there are some important differences between these versions. Still, it is also interesting to emphasize what these versions have in common, as some relevant arguments for and against the common view are general. Accordingly, I focus especially on such general arguments. Third, although my main arguments are general, in this paper I focus on responsive actions that are especially pertinent in the context of the criminal law, such as prevention and punishment.³¹ Fourth, in addition to the objection that I consider in this paper – that the moral status of actions is not an independent reason regarding responsive actions – I think that there is another compelling argument against the legal version of the common view, namely, that there are no ultimate reasons for or against legal responses in particular since the law is merely a means and therefore not a constitutive element of ultimate reasons.³² However, I do not consider this argument in this paper. Finally, the question under consideration is not simply a variant of the familiar controversy between consequentialism and deontology. On the one hand, standard accounts of not only consequentialism but also deontology entail that the moral status of actions is not important in itself to the moral status of other actions.³³ On the other hand, there are not only deontological consequentialist arguments for the opposite view.³⁴

My contention, that the moral status of actions is not important in itself in terms of the response to these actions, is important both theoretically and practically. Its theoretical significance is due to its contribution to the morality of responsive actions and specifically to the well-known discussion of the goals and the limits of the criminal law and (more specifically) to the evaluation of legal moralism. Additionally, this claim has practical implications, inter alia, regarding the proper scope of the criminal law. It entails that the fact that an action is morally wrong is not in itself a reason for using the criminal law, while the fact that an action is morally permissible is not a reason against using the criminal law. These conclusions are practically important when there are no other reasons, for or against criminalization, or when such reasons are not decisive (these include reasons relating to the good or bad consequences of criminalization and to the question of whether the agents are culpable or not). For example, the view that I defend implies that the criminal law should not be used against actions that are wrong since they violate deontological constraints, when the agents are not (sufficiently) blameworthy (for instance due to a mistake), and the consequences of using the criminal law are not optimal. The relevant instances include both cases of harmless wrongdoing (such as, for example, some cases of trespass) and harmful actions whose overall balance of consequences is optimal (since the harm that they prevent is greater than the harm they cause).³⁵ These conclusions are especially important due to the expanding reliance on technologies such as driverless cars³⁶: my view suggests that the regulation of such technologies should be based on consequentialist considerations if (when) the construction of technologies in this way does not amount to a violation of a deontological constraint in itself.³⁷ Another implication of the view that I defend concerns strict liability offenses. There are often reasons for and against such offenses. On the one hand, they sometimes promote optimal consequences. On the other hand, they often impose sanctions on agents who are not culpable. Thus, it is reasonable to conclude that such offenses are sometimes justified and sometimes not, depending on the extent to which they bring about good consequences and the degree of injustice that they involve. My view entails that the fact that strict liability offenses often proscribe actions that are not morally wrong is not another reason against such offenses. This claim does not imply that strict liability offenses are always justified – since there may be other reasons against it, most notably the fact that such offenses may facilitate sanctions that the relevant agents do not deserve. But my claim does imply that such offenses may be justified more often than it is sometimes assumed (especially when they also prevent undeserved harm).³⁸

I begin by presenting several arguments against the common view that the moral status of actions is itself a reason for or against responsive actions. Since these arguments are not decisive, I next consider whether there is a compelling rationale that may vindicate the common view. I conclude by noting the practical implication of the discussion.

2. Arguments Against the Common View

2.1. The Moral Status of Actions, Agents, and Consequences

Consider a paradigmatic case of a wrongful action, for example a case in which one person seriously harms another for a trivial reason. This event appears to trigger various reasons for responsive actions, including prevention and punishment (as well as compensation). Indeed, it seems that if the use of criminal law is ever justified, it should be used in such a case. But why exactly are such responses appropriate?

One answer is obvious and uncontroversial: if it is possible to prevent the harm to the victim, there is a reason to do so, at least when the harm is undeserved, as such harm is unjust and thus bad. Indeed, preventing undeserved harm seems to be pro tanto good according to every plausible and familiar account.³⁹ This is, more generally, the reason to prevent states of affairs (including the consequences of actions) that are not optimal overall. This answer, it is important to note, is not concerned with the moral status of the action as such, but rather with the moral status of its consequences – the harm to the victim – or, more accurately, with the fact that preventing this consequence would create a better state of affairs. In this respect, it makes no difference if the action is wrong, or indeed if the harm is due to an action at all.

Another answer is concerned with the agent: if the agent is blameworthy – for example, since he is responsible for (the decision to commit) the wrongful action – there may be a reason to punish him to the extent to which he deserves to be punished. Unlike the first answer, this answer is controversial; there are familiar doubts regarding the assumption that persons are sometimes blameworthy (or praiseworthy), as well as concerning the assumption that blameworthy agents deserve to be punished. However, the rationale of this answer is transparent – and, most importantly for our purpose, it too is not ultimately concerned with the moral status of the action, but rather with that of the agent: the agent deserves to be punished since – and accordingly if and only if and to the degree to which – he is blameworthy.⁴⁰

Some views combine elements of both the above answers. For example, one view holds that there is a reason to harm a blameworthy agent only if this would prevent harm to an innocent victim. This view is thus concerned with the moral status of both the agent and the victim, as well as with the moral status of the ensuing state of affairs. Another combination considers desert as a constitutive aspect of states of affairs. According to this view, a state of affairs in which the blameworthy agent is harmed (or punished) is better than one in which an innocent victim is harmed, other things being equal. This view thus combines a concern for the moral status of states of affairs and of persons.

The question that I am concerned with is whether the fact that the action is wrong is itself an additional reason in favor of responsive actions, that is, a reason that is independent of other reasons. Specifically, the question is whether this is a reason that is independent of the reason to prevent the negative consequences of the action (a reason which is concerned with the moral status of a state of affairs) and of the reason to give the culpable agent her just desert (which is concerned with the moral status of the agent). Once we recall the distinctions between these factors, I think that both the intuitive appeal and, most importantly, the theoretical rationale of a positive answer are called into question. Indeed, I think that in light of these distinctions, a negative answer is more plausible. While it is clear why there is a reason to prevent bad states of affairs, such as those that involve undeserved harm, and why (some believe that) there is a reason to punish or reward people in light of their moral record, the suggestion that the moral status of actions is an independent reason for or against responsive actions such as prevention and punishment is puzzling. I believe that the fact that the latter suggestion is nevertheless commonly assumed to be correct is partly the result of a conflation of the relevant factors – the moral status of actions, states of affairs, and persons. Such a conflation appears to be common mainly because these factors are related in various ways. However, it is important to bear in mind that despite these relations, the above factors are distinct.

It may be objected that the distinctions between (the moral status of) actions, consequences, and agents are untenable.⁴¹ This objection may rely on the fact that the description of actions often refers to their consequences and to the motives of the agents. More specifically, it may be objected that once we subtract the consequences and the agent, there is nothing left in terms of the action itself; or at least that the moral status of the action is not independent of the moral status of its consequences and of the agent. However, while there are various relations between these categories,⁴² and while there are controversies regarding the significance of certain factors, for instance whether they affect the moral status of actions or that of agents, the distinctions between actions, consequences, agents, and the moral status of these factors, are entailed by plausible and common assumptions. Indeed, the premise that there are distinctions between these categories is widely accepted both in moral theory in general and especially in criminal law theory. In moral theory, the definitions of both consequentialism and deontology assume that there is a distinction between actions and consequences, as consequentialism holds that only consequences are morally significant in themselves, whereas deontology insists that there are also distinct moral concerns relating to actions independently of their consequences. And (as many criminal law theorists have pointed out) the most salient topic in criminal law theory in the last few decades – the distinction between wrongdoing and culpability and particularly between justifications and excuses – reflects the assumption that there is a viable distinction between the moral status of actions and of persons.⁴³ Moreover, the above objections are incompatible with the view that I criticize. For this view holds that the moral status of actions matters for the appropriate response to these actions in itself, that is, independently of other concerns. It thus assumes that the moral status of actions, agents, and consequences are distinct factors. Therefore, for the sake of the arguments against this view, we should assume that this is indeed the case.

Consider first (the moral status of) actions and states of affairs, including consequences of actions. These factors are related in various ways. First, the moral status of actions depends on their consequences; only on their consequences according to consequentialist theories and partly on their consequences according to the standard version of deontological theories.⁴⁴ Second, one way to prevent the consequences of an action is to prevent the action itself. Indeed, preventing the action is often the most obvious way and frequently the only or the best way to prevent its consequences.⁴⁵

Given these relations, the moral status of actions and of their consequences might be conflated.⁴⁶ Therefore, it is important to recall that despite these relations, the factors are distinct. First, the proposition that an action is right or wrong is conceptually different from the proposition that its consequences are better or worse (optimal or not). This is the case even if the moral status of an action is determined solely in light of its consequences (either in general, if consequentialism is true; or, even if consequentialism is not true, in a specific case in which there are no other morally significant factors). Moreover, the moral status of an action and the moral status of its consequences may come apart in specific cases according to common views. These include the (deontological) view that the moral status of actions is not determined only in light of their consequences, as well as the view that the moral status of actions depends on the (actual or justified) beliefs of agents regarding the relevant facts rather than on these facts themselves.⁴⁷ According to both of these views, there may be wrongful actions whose overall consequences are optimal and permissible actions whose overall consequences are not optimal.

Consider next the distinction between the moral status of actions and the moral status of persons – the extent to which they are praiseworthy or blameworthy (or virtuous or vicious). These factors, too, are related in various ways. First, some think that the moral status of persons depends not only on (some of) their mental states but also on the extent to which they are responsible for certain actions. More specifically, many hold that people are praiseworthy or blameworthy only if they perform (and are responsible for) certain actions.⁴⁸ Second, even if the moral status of persons does not depend (only) on the extent to which they are responsible for actions, but (also) on their intentions or character, for example, their actions are typically evidence of what does matter. Indeed, their actions are often the only available evidence, since an inquiry into other issues may be impossible or too costly. Third, it is plausible and common to assume that the degree to which an action is wrong (or right) affects the degree to which the agent is blameworthy (or praiseworthy), when the agent knows the facts that pertain to the moral status of her action. Fourth, people are often responsible for their actions. Indeed, it is commonly assumed that people are responsible for their actions unless they have an excuse (such as a mistake or coercion). Finally, as noted above, according to certain views, some of the mental states of agents – for instance, their beliefs and intentions – affect not only the moral status of persons but also the moral status of their actions. According to one version of this view, for example, the answer to the question of whether an action is permissible depends on the beliefs of the agent regarding the morally significant facts.

In light of these relations, the moral status of actions and of persons may also be conflated. One example is the tendency to conflate legal moralism, which is concerned with the moral status of actions, and retributivism, which is ultimately concerned with the moral status of persons.⁴⁹ Yet these factors, too, are distinct.⁵⁰ First, the claim that an action is wrong or right is conceptually different from the claim that the agent is blameworthy or praiseworthy. Second, the moral status of persons and of their actions may diverge. This is clearly the case according to the view that these factors (ultimately) depend on variables that are completely different, that is, if the moral status of actions depends (only) on their nature and consequences, while the moral status of persons depends (only) on their intentions (including intentions to perform various actions) or character (including the tendency to perform certain actions). However, even if some variables are relevant to both of these factors (for example, if the moral status of actions depends on some of the mental states of the agents, or if the moral status of persons depends on the moral status of their actions and their consequences), the overlap is not complete. Particularly, it is uncontroversial that people are not always (fully) responsible for their actions since they may have an excuse, for example, when these actions are the result of mistake or coercion. Moreover, this divergence highlights the fact that the ultimate concerns regarding the moral status of persons and of actions are distinct.

Proper attention to the distinctions between actions, consequences, and persons thus demonstrates that the view that the moral status of actions matters in itself is not as self-evident as it may seem at first sight. This is the case not only regarding the proposition that wrongdoing is itself a reason for negative responses, but also concerning other views that consider the moral status of actions as important in itself in terms of the justification of responsive actions.

One example is the proposition that the fact that an action is morally permissible is a reason against negative responses, including through criminal law; for example, that such actions should not be prevented, and that the agents who perform them should not be punished. This proposition may seem appealing due to a conflation of the moral status of actions, consequences, and persons, inter alia, since paradigmatic cases of actions that are morally permissible also involve good consequences and praiseworthy agents. Such cases include both harmless actions and harmful actions that are permissible due to some redeeming feature such as that they prevent greater harm. Accordingly, one appeal of the view that negative responses are inappropriate in such cases stems from the fact that there is no reason to prevent, and indeed there is a reason to encourage, actions whose consequences are optimal overall.⁵¹ Moreover, there is usually a consequences-based reason against using criminal law due to its (morally significant) cost. Another appeal of this view is that agents who perform the relevant actions are typically not blameworthy (and indeed are often praiseworthy); thus, they do not deserve a negative response (and indeed often deserve a positive one). However, it should be recalled that this, too, is not necessarily the case: agents may perform the right actions for the wrong reasons, for example.

These reasons are thus (ultimately) concerned with the moral status of states of affairs and persons, and not with the moral status of actions. However, these factors may be conflated, such that the claim that permissibility is a reason against negative responses appears unduly attractive. Consider, for example, the following arguments in support of the claim that criminal law should not be used against actions that are morally permissible: “moral desert is a necessary condition of blame or punishment: morally innocent individuals (individuals whose actions are justified) do not deserve punishment”⁵²; "to inflict such responses [punishment and condemnation] on others seems clearly wrong unless they've done something to merit them."⁵³ These claims are intelligible if their ultimate concern is what people deserve in light of their moral status: It is unjust to punish persons who do not deserve punishment. In contrast, the rationale of these claims is less clear if they are concerned with the moral status of actions as such. Indeed, we punish people, not actions. Accordingly, even if we punish people for their actions, we should do that only if, and because, the agents are blameworthy (that is, lack an excuse).

3. Test Cases

I thus suggest that once we distinguish the moral status of actions, states of affairs, and persons, the common view that the moral status of the actions is in itself a reason for or against responsive actions becomes less appealing. Still, this view seems to retain some – perhaps considerable – intuitive appeal that may not be (completely) due to the conflation of the relevant factors, including in test cases in which we isolate the moral status of actions.

For instance, many seem to think that there is a reason to respond to wrongful actions, for example to prevent them even if the overall consequences of prevention are not optimal and the agents are not blameworthy. One example is a variation of a paradigmatic case of deontological wrongdoing: the familiar bridge case (killing a person who stands on a bridge by pushing him onto a track, such that his body will stop a trolley that would otherwise kill five people who are on another part of the track),⁵⁴ where the agent believes, due to a blameless mistake, that pushing the person would not harm her.⁵⁵ Some feel that there is a reason to prevent the action in this case because it is wrong.

In addition, some think that there is a reason to prevent harmless wrongdoing, even if the overall consequences of intervention are not optimal and the agent is not blameworthy.⁵⁶ An example is a case of trespassing that (let us assume for the sake of the discussion) is wrong despite the fact that it does not affect the property owner (or any other person), where the agent is blameless since she made an innocent mistake regarding the boundary of the relevant property.

The implication of the common view may also seem intuitively appealing regarding a case in which one innocent person attacks another (for instance due to the mistaken but blameless belief that the latter is about to kill her): some feel that we should intervene in favor of the victim even if all else is equal, namely, if both parties are equally innocent and the consequences of interference in favor of the victim are not better than the consequences of helping the attacker or doing nothing.

Finally, some believe that discrimination is (sometimes) wrong regardless of its consequences and that there is a reason to prevent such discrimination because it is wrong, even if the consequences of doing so are not optimal.

Some of these intuitions appear to be powerful and common. But I suspect that this is partly due to concerns that are not about the moral status of actions as such, for example concerns about states of affairs and agents (or duties to victims). For instance, it is natural to assume that in real-life versions of these cases, employing the law in response to the relevant actions would have overall positive consequences because it may deter actions whose overall consequences are not optimal.

Moreover, there are also conflicting intuitions. First, there are more general intuitions that are incompatible with the common view. One example is the intuitive principle that it is, in one respect, unjust to prefer one innocent person over another. This intuition holds, it seems to me, even if one of the innocent persons is performing a wrongful action (and the other is not), if neither is culpable.⁵⁷ Indeed, even those who feel that the person whose action is not wrong should be preferred may see the force of the clashing intuition that it is unfair to prefer one innocent person over another.

In other test cases, the common view entails implications that are less appealing. Consider first some variations of the bridge case. The common view implies that while there is a reason to prevent the action in the standard bridge case, there is no reason to prevent a machine or an animal from pushing the person on the bridge when this does not constitute an action (or at least not a wrongful action). This distinction may seem arbitrary. A further unattractive implication of the common view is that whether or not we should prevent the action in the standard bridge case depends on whether the fact that the trolley is about to kill the five persons is the result of wrongdoing, as opposed to a force of nature, for example.⁵⁸ Another test case in which the implication of the common view seems unappealing – perhaps the most obvious one – is that punishment seems inappropriate in response to wrongdoing if the agent is not blameworthy and the consequences of punishment are not optimal. Indeed, in such cases, there does not seem to be even a (pro tanto) reason to punish.

Other test cases involve mistakes. Consider a doctor who administers a substance that she thinks will cure the patient but ends up killing him. Clearly, there is a reason to intervene in this case – to prevent the action in order to prevent its bad consequences. It is equally clear, I think, that there is no reason, not even a pro tanto one, against interference (by way of prevention), even if (and because) the action is permissible; that is, even assuming a subjective account according to which the action is justified in light of the (justified) belief of the doctor. Moreover, there is no reason to encourage the action, even assuming it is permissible (or even obligatory) given the (justified) belief of the agent.⁵⁹ Notice also that the reason to prevent the action, in order to prevent its consequences, exists both if the agent is blameworthy (for example, if her mistake is culpable) and if she is praiseworthy (for instance, if her mistake is blameless and she made a personal sacrifice to help the patient). Finally, the answer to the question of whether there is a reason to punish the agent seems to depend (ultimately) on the moral status of the agent – if she is blameworthy (or the extent to which she is blameworthy) – and not on the moral status of the action as such. These judgments reinforce the hypothesis that there is no reason to respond to wrongdoing as such.

A similar analysis applies when the valences of the mistake are reversed – when the agent thinks that the overall consequences of the action would not be optimal but in fact they would be; for example, if an evil doctor mistakenly thinks that a certain substance is poisonous where in fact it ends up curing the patient. In this case, there is clearly a reason against preventing – and indeed in favor of encouraging – the action, as a means of bringing about its good consequences. And, it seems to me, there is no reason, not even a pro tanto one, against encouraging the action (or in favor of preventing it), even if (we assume, for the sake of the discussion that) the action is wrong given the (justified) belief of the agent. In this case, there is a reason to punish the agent if she is blameworthy (or if the overall consequences of punishment are optimal), but this reason stems (ultimately) from the moral status of the agent (or the consequences of punishment, if they are optimal), and not from the moral status of her action as such.⁶⁰

Another example regarding prevention is comparative. Assume that a choice must be made between preventing harmless wrongdoing and preventing harm to an innocent person that is not the result of an action, or not the result of a wrongful action; or between preventing harmful wrongdoing and preventing greater harm that is again not the result of a (wrongful) action (where all else is equal). If there is a reason to prevent wrongdoing as such, it seems that we should sometimes prevent it rather than the (greater) harm. The only way to avoid this implication, which seems to me implausible, is to assume that the force of the reason to prevent wrongdoing is so weak that it is always defeated by the clashing reason to prevent (greater) harm. Yet the common view seems to assume that the force of the reason to prevent wrongdoing is not trivial and indeed may be significant (recall the bridge case, where the cost of preventing the action is assumed to be high – the lives of five persons). This suggests that, according to this view, the reason to prevent wrongdoing sometimes defeats the reason to prevent (greater) harm to innocents, even if the harm is not trivial and indeed even when it is significant.⁶¹ This seems to me implausible.⁶² Indeed, I think that we should always prevent the (greater) harm. This intuition seems robust, especially when recalling that we should assume that all else is equal; for example, that preventing the wrongful action would not deter future wrongdoing and thus prevent the bad consequences that typically accompany it. If this judgment is correct, it corroborates the hypothesis that there is no reason to prevent wrongdoing as such. For if the reason to prevent the greater harm is decisive despite being very weak (as the greater harm is only slightly greater), this is presumably because there is no countervailing reason in favor of preventing wrongdoing as such, apart from its consequences.

Finally, some other implications of the proposition that there is a reason against negative responses to morally permissible actions, for instance through criminal law, appear doubtful, too. For example, this proposition entails that there is a reason against prohibiting and punishing attempts even when the agents are blameworthy and the consequences of employing the law are optimal if the attempts are not wrong, for instance since they failed at a stage that is early enough in the relevant respect.⁶³ As another example consider the action of turning a trolley that would otherwise seriously harm one person onto a sidetrack where it causes lesser harm to another person, when the only goal of the (evil) agent is to harm the latter person for no good reason (and saving the first person is merely an unintended side-effect for her). This action, let us assume, is permissible (as not only consequentialists but also many deontologists agree), although the agent is blameworthy (given her intentions). I suggest that the fact that the action is permissible is not in itself a reason against using the law in response to it. This is practically important, for example if a legal response would be appropriate in terms of retributive justice or if it would bring about good consequences overall (for instance by deterring other actions whose consequences are bad).

4. Theoretical Doubts

Additional doubts regarding the view that the moral status of actions is pertinent in itself to the justification of responsive actions are more theoretical. One is that standard accounts of both consequentialist and deontological concerns do not vindicate this view.⁶⁴ This is evident with regard to the consequentialist concern (which is endorsed not only by consequentialism but also by standard deontological accounts that consider both deontological reasons and reasons regarding consequences). This concern is ultimately about the moral status of states of affairs – the extent to which they are good or bad – including when they are the result of actions. According to the standard understanding of this concern, the moral status of actions does not affect the moral status of states of affairs in itself; hence, for instance, the fact that a wrongful action was performed is not in itself bad.⁶⁵ For example, if you can persuade only one of several persons to give part of her income to charity, the relevant factor, from the consequentialist perspective, is who would give more and not who would give the amount that she is required to give.⁶⁶

It may be less evident that the standard deontological concern also does not support the view that the moral status of actions is important as such to the justification of responsive actions. Deontological accounts view certain actions as objectionable due to features other than their consequences and hold that they should not be performed even when this would prevent more actions of the same (objectionable) type (except perhaps in extreme cases). For example, according to this view, one should not perform an action that is deontologically objectionable (such as pushing the person in the bridge case), even if this is the only way to prevent several agents from each performing the same action.⁶⁷ There are two ways to understand this view. The first assumes that there is a (pro tanto, deontological) reason to prevent the (deontologically) objectionable actions of others as such (that is, apart from their consequences), but, in addition, a (much) stronger reason not to perform such actions oneself, and the latter reason defeats the former. The other interpretation is that there is not even a (pro tanto) reason to prevent the objectionable actions of others as such, but only a reason not to perform such actions oneself.⁶⁸

Thus, the first interpretation, but not the second, considers the moral status of actions as important in itself to the moral status of other actions. Yet the second interpretation appears to cohere better with the widely accepted view that we should normally not perform an objectionable action, even if this would prevent more actions of the same type. For if there is a (deontological) reason to prevent such actions, it is unclear why this reason is considered to be so weak that it is regularly defeated by the reason not to perform an objectionable action oneself.⁶⁹ Thus, it seems that even the standard deontological account does not entail a reason to prevent wrongful actions as such.

My suggestion that the moral status of actions does not matter in itself, in terms of the justification of responsive actions, also coheres better than the common view with a widely accepted view regarding Justification defenses in the criminal law. According to this view, such defenses should not apply whenever the relevant action is justified given the relevant facts, but only if the agent (justifiably) believes that the facts that justify the action pertain,⁷⁰ and only if she acts for the right reasons.⁷¹ These requirements cohere better with my suggestion that what ultimately matters for the justification of responsive actions is not the moral status of the original actions but (for example) the moral status of the agents. For while it is clear that the mental states of agents are relevant to their moral status, the relevance of such mental status to the moral status of their actions is controversial.⁷²

Finally, another theoretical weakness of the common view is that it is more complex and thus less parsimonious than my suggestion. For the common view holds that the morality of responsive actions depends, inter alia, on a factor (the moral status of original actions) that is important only in this context (or at least only in a few specific contexts). By contrast, my suggestion that the morality of responsive actions depends on the same factors that determine the morality of all other actions is simpler. This view considers the moral status of (original) actions as important to the justification of other (responsive) actions only if, and to the degree to which, this factor is related to other (more basic) concerns.

Overall, I think that these doubts regarding the common view that the moral status of actions is important in itself in terms of the response to such actions are substantial. Still, they are not decisive: the intuitive appeal of the common view is not entirely based on a conflation of the moral status of actions, states of affairs, and persons; the intuitions against this view may be misguided; the standard consequentialist and deontological accounts may not be misguided; and parsimony is not the only virtue. Therefore, the next question is whether there is a theoretical rationale that vindicates the enduring intuitions that support the common view.⁷³

5. Arguments for the Common View

There are various arguments for the common view that the moral status of actions is morally significant in itself to the morality of responsive actions. The goal of the following discussion of salient examples of such arguments is to highlight two points. The first is that these arguments often rely on assumptions that are more controversial than the common view they aim to vindicate. This highlights the fact that the common view is less obvious than it may be taken to be. Since the relevant controversies are typically familiar from other contexts, my aim here is not to resolve these controversies, but rather to relate these broader concerns to the current discussion and thus to clarify what is at stake. The second point that should be noted with respect to the following arguments for the common view is that each of them provides only partial support for this view. For example, some of the arguments entail only a reason for certain negative responses to wrongdoing, while others entail a reason against such responses to permissible actions. Thus, the common view appears to require a combination of several independent rationales. In this respect, the common view is unified.

One natural argument for the common view is that responsive actions – especially legal responses and particularly responses by way of criminal law – should be concerned with the moral status of original actions in order to guide people how to act: indicate what is right and what is wrong and induce people to act accordingly. However, although there may be a reason to use responsive actions as a means of guiding actions in this way (when such guidance is effective),⁷⁴ this does not entail that the goal of such guidance should be to affect the moral status of actions as such. Rather, for example, the law may be a means of guiding actions in order to bring about certain states of affairs, by deterring actions whose consequences are bad and encouraging actions whose consequences are good. Therefore, the question is whether the ultimate goal of such guidance should be to impact the moral status of actions (for example, to prevent wrongful actions or to encourage obligatory ones).

Different arguments relate the moral status of actions to that of states of affairs. One argument combines the plausible and uncontroversial premise that there is a reason to prevent bad (non-optimal) states of affairs with the claim that the performance of wrongful actions comprises a bad feature of states of affairs in itself.⁷⁵ This suggestion reflects an unorthodox view regarding the relation between actions and states of affairs. Indeed, the claim that moral wrongdoing is itself a bad state of affairs appears to be no less (and arguably more) controversial than the view that there is a reason to prevent wrongdoing. Indeed, this suggestion comes very close to begging the question under consideration. If performing certain actions itself is assumed to be bad, the first premise of the above argument – that there is a reason to prevent bad states of affairs – becomes much less plausible with respect to this aspect. While it is obvious why there is a reason to prevent a state of affairs that is bad because it involves underserved harm for example, it is unclear why there is value in preventing wrongdoing as such. And classifying wrongdoing as itself a bad state of affairs does not provide an illuminating explanation, it seems to me. In addition, the doubts regarding some of the implications of the view that there is a reason to prevent wrongdoing appear especially pressing given the assumption that wrongdoing is bad. Particularly, the claim that wrongdoing is bad entails that we should sometimes prevent wrongdoing rather than harm.⁷⁶

A more specific claim that relates actions and states of affairs is that the performance of a wrongful action is bad in itself for the wrongdoer; that the life of a person who performed a wrongful action is worse due to this fact alone, even if it has no other consequences (such as remorse or punishment).⁷⁷ Thus, it may be objected that there is a reason to prevent wrongful actions even if the action is harmless and the agent is not culpable (for instance, since she is temporarily insane) – out of concern for the agent. The above concerns regarding the more general claim that wrongdoing is bad in itself apply to this claim, too.⁷⁸ In addition, the appeal of this claim may result from a conflation of the moral status of actions and agents, as the claim is more plausible (or at least less implausible) if – and because – the agent is blameworthy (for example, since she is responsible for a wrongful action). This distinction may explain why it is especially implausible to prevent wrongdoing by coercive means out of concern for the (wellbeing of the) agent.⁷⁹ For while it is clear why the moral record of an agent who decides to abandon a plan to perform a wrongful action is improved sometimes (depending on her reason to abandon the plan), it does not seem that the action of another person (that prevents her action), for which she is not responsible, would improve her moral record. The suggestion that there is a reason to prevent wrongdoing by non-coercive means, and especially by convincing the agent by rational means that she should not perform the wrongful action because it is wrong, is more plausible. However, the best explanation for this suggestion appears to be concerned with the moral status of the agent rather than with the moral status of the action as such: an agent who acknowledges that wrongdoing should be avoided (as opposed to an agent whose action is prevented by force) improves her moral record. In any case, to the extent to which the concern is for the moral record of the agent, it is not a concern about the moral status of the action as such. If the agent is not culpable, the wrongful action does not affect her moral record. Similarly, if the rationale of preventing the action for the sake of the agent is due to her feeling, for example since she may feel agent-regret for her action later, this is not ultimately a concern about the moral status of the action but about the wellbeing of the agent.⁸⁰

Another argument for the view that wrongdoing is bad and its prevention is good relies on the comparative claim that it is better if a wrongful action is not performed than if it is performed and the (culpable) agent is punished.⁸¹ This claim is no doubt typically true, but it does not entail that preventing wrongdoing is good in itself. Indeed, the most plausible explanation as to why preventing wrongdoing is typically good is that it prevents the bad consequences of the wrongful action, such as harm to innocent people. (An additional explanation is concerned with the morally significant cost of punishment.)

According to a different type of claim, the moral status of actions matters for the justification of responsive actions since it affects, in itself, what people deserve – that is, in a way that is not merely instrumental or evidentiary. According to this claim, a person who performed a wrongful action is more culpable than a person who did not (other things being equal), even if the latter had the same intentions (and did not perform a similar wrongful action due to mere – circumstantial or resultant – luck). There is some tension between this claim and my view, which coheres better with the alternative view that what people deserve ultimately depends only on their intentions or character.⁸² According to this alternative view, actions are morally significant, especially but not only in the context of the criminal law, due to other concerns (for instance, instrumental and evidentiary ones).⁸³ Such concerns provide the best explanation in my view, for the common intuition that punishment is justified only in response to wrongful actions (for which the agent is responsible). This is an advantage of my suggestion, it seems to me, since I think that the latter account of desert is more plausible in general, mainly since it does not involve moral luck.

However, the more important point here is that one version of the claim that the moral status of actions affects what the agents deserve is compatible with my suggestion. This is the version that holds that the moral status of actions matters in terms of desert only if and to the extent to which it affects the moral status of persons.⁸⁴ Thus, according to this version, the most basic factor in terms of desert is the moral status of persons, whereas the moral status of actions is important, with regard to desert, only since and when it affects the moral status of persons (as agents who perform actions). I think that this is indeed the standard version of desert. This version holds that what a person deserves depends on the features of that person,⁸⁵ and accordingly that the moral status of actions is important in terms of desert only if and to the extent to which the relevant person is responsible for these actions. Thus, people may not be blameworthy even if their actions are wrong (for example, if they have an excuse, such as a mistake or coercion), and in this case, they do not deserve punishment. This view explains why a person who performs a greater wrong deserves more punishment (other things being equal). For a person who is responsible for a greater wrong is more culpable than a person who is responsible (to the same degree) for a lesser wrong (other things being equal).

What is incompatible with my suggestion is a (revisionist) account of desert according to which what people ultimately deserve depends not only on their moral status – the degree to which they are blameworthy or praiseworthy – but also on the moral status of their actions – the extent to which their actions are wrong or right.⁸⁶ This account considers the moral status of actions as important for desert independently of the moral status of the agents. This account is, however, less plausible (and more controversial), it seems to me. For while the idea that what people deserve depends ultimately on their moral status is intelligible (albeit controversial), the suggestion that what people deserve depends ultimately (also) on the moral status of their actions, even if the latter does not affect the former, is perplexing. Indeed, this revisionist account of desert faces the following objection. On the one hand, if it rejects the assumption that the moral status of actions matters in terms of desert only if, and to the extent to which, the relevant agents are responsible for these actions (namely, if they lack an excuse), it is implausible. Rejecting this assumption entails, for example, that a person who intends to inflict more (unjustified) harm, but fails in a way that is completely a matter of brute luck, sometimes deserves more punishment than a person who intends lesser (unjustified) harm but causes more harm in a way that is completely a matter of brute luck.

On the other hand, a view that combines the claim that the moral status of actions affects what the agents deserve independently of the degree to which they are culpable, and the assumption that the moral status of actions matters in terms of desert only to the extent to which the relevant agents are responsible for these actions, seems to be incoherent. For this assumption in fact acknowledges that the moral status of actions is not an independent factor in terms of what people deserve, but rather matters only if, and to the extent to which, it affects their moral record.

Consider, for example, Michael Moore's view that both culpability and wrongdoing are independent factors that affect what people deserve. He claims that wrongdoing matters, in terms of desert only if there is also some culpability, but that if there is a certain amount of culpability, the degree to which a person deserves punishment also depends on the degree to which his actions are wrong. This view thus implies that a person who is culpable to a certain degree deserves a much harsher punishment than a person who is equally culpable, if the former's action is worse.⁸⁷ This implication is incompatible with my suggestion. However, I think that it is implausible.

It may be objected that, contrary to my suggestion, the moral status of actions is more basic than the moral status of persons, including in terms of desert, since people are culpable only when they are responsible for wrongful actions (or for attempting such actions), and not, for example, in light of their tendencies to perform such actions. However, this claim faces the same problems as the view that considers wrongdoing as an independent factor in terms of desert: the intuition that supports it may be due to instrumental and epistemic concerns; and it entails, implausibly, that people who are less culpable sometimes deserve more punishment.

A different suggestion aims to vindicate the view that it is justified to prefer a person whose action is not wrong over a person whose action is wrong, even if the latter is not (more) culpable, for example, in self-defense cases. This suggestion is sometimes based on notions such as "liability" (wrongdoers are liable to be harmed) or "forfeiture" (people may lose their rights against various negative responses if they perform wrongful actions).⁸⁸ It is unclear, however, what exactly the reference to these notions adds to the intuitive appeal of the above view.

One variation of such liability or forfeiture accounts may require a combination of wrongdoing and blame (or blame due to responsibility for wrongdoing). I think that this version is less plausible than the one that focuses merely on blame. However, the more important point in this context is that if the wrongdoing is assumed to be important only if and to the extent to which it affects the more basic factor of blame, then this version is compatible with my suggestion that the moral status of actions is not an independent factor in terms of the justification of responsive actions. By contrast, if the claim is that wrongdoing is an independent factor that supports negative responses independently of blame, this version is subject to the same objections that apply to the revisionist account of desert.

A different suggestion is that wrongdoers incur duties because of their wrongdoing – for example, a duty to prevent (further) harm to innocents (including by accepting punishment as a means of preventing such harm) – and that it is justified to enforce these duties (inter alia, through criminal law). This view thus considers the fact that an action is wrong as a reason to perform other actions – by the original agent as well as others.⁸⁹ Here, too, it seems to me that the distinction between actions and agents is important. While it is plausible that culpability triggers various duties – for example, to prefer an innocent person over a culpable one – this is ultimately due to the moral status of the relevant persons. In contrast, it is unclear why we should prefer one innocent person over another because one of them performed a wrongful action (assuming that she is not culpable, for example, because her action was due to a blameless mistake). Accordingly, the claim that “serious wrongdoers ought to aim to redeem themselves by committing themselves to the victims of their wrongdoing,”⁹⁰ is more attractive if it refers to culpable agents and focuses on the moral status of persons rather than actions. Indeed, the claim that a culpable agent should "redeem" herself appears more plausible than the claim that a wrongdoer should "redeem" herself (even) if she is not culpable.⁹¹

Tyler Doggett suggests a similar view. He claims that a bystander should prevent another from doing wrong (only) if and because the wrongdoing involves a victim and the bystander owes this victim protection from the wrongdoing.⁹² He does not explain why there is a reason to prevent wrongdoing (only) in such cases (apart from the intuitive appeal of pertinent cases). The most promising answer, it seems to me, is that the presence of a victim matters, in the relevant respect, in a way that is not ultimately concerned with the fact that the action is wrong, but rather with the fact that the harm to the victim is bad. Indeed, Doggett clarifies that he considers the important factor to be not the fact that the relevant action is wrong, but the presence of a victim – and that therefore we should sometimes intervene even if there is no wrongdoing.⁹³ This comes close to my suggestion that what matters, in the relevant respect, is not the moral status of actions as such, but rather the moral status of states of affairs (including consequences of actions).⁹⁴

A related argument for the common view is based on the assumption that there are patient-centered deontological constraints, for example against using persons as means. According to this suggestion, there is (at least) a reason to respond to violations of such constraints for the sake of the (potential) victims – for instance, to prevent the violations or to compensate the victims. This idea may be naturally described also in terms of (patient-centered, deontological) rights, namely, that some actions are wrong since they violate these rights and there is a reason to prevent such violations in order to protect the rights-holders.

The following points should be considered concerning this suggestion. First, it assumes not only deontology but a specific type of deontology. More importantly in this context, even this assumption does not entail in itself that there is a reason to prevent the relevant type of wrongdoing. The fact that the standard version of deontology is agent-relative and accordingly does not focus on preventing violations of its prohibitions reinforces this doubt.⁹⁵ Thus, while it is tempting to relate the patient-centered nature of the relevant constraints to the idea that we should prevent their violations for the sake of the potential victims, this relation is not obvious.

Indeed, once we separate the moral status of actions from the moral status of their consequences and of the agents, the point of responses that are directed at the actions themselves is not clear, even if we assume a patient-centered deontological account. This is apparent in test cases that separate wrongful actions from bad consequences and blameworthy agents, such as harmless wrongdoing by an innocent agent (for example, one whose action is due to a blameless mistake). In such cases, responses such as prevention and punishment (as well as compensation) seem pointless, as there is no harm, and the agent is not blameworthy.

Moreover, the unappealing implications of the common view – for example, that we should sometimes prevent wrongdoing rather than prevent harm to innocent persons that is not the result of wrongdoing⁹⁶ – seem to apply as well when the wrongdoing is accounted for in terms of patient-centered deontology.

Finally, the present suggestion is limited to one type of wrongdoing – the violation of patient-centered deontology; it does not apply to other types of wrongdoing, including actions that are wrong due to their consequences, as well as to other types of deontological wrongdoing (if any exist). Thus, there are two options in this regard: there may be no reason to prevent other types of wrongdoing, or there may always be a reason to prevent wrongdoing that is based on different rationales regarding different types of wrongdoing. Both options offer an account of responsive actions that is not uniform. Accordingly, the extent to which these options are compatible with the intuition that there is a reason to prevent wrongdoing is doubtful, as this intuition does not seem to make such distinctions.⁹⁷

A different suggestion concerns the claim that the fact that an action is permissible triggers a reason against interfering with it, for example, against enacting or enforcing a criminal offense that proscribes such an action.⁹⁸ This claim can also be naturally described in terms of rights, namely, that people have a right that others not interfere with their permissible actions (and the reference to rights may be seen as a rationale that vindicates this claim). The first point that should be noted regarding this suggestion is that the alleged relation between permissibility and non-interference is not conceptual. The fact that an action is permissible means only that there is no decisive reason against it (and no duty to refrain from it); it does not entail what another person should (not) do in response to this action. For example, it does not entail a reason against preventing the action.⁹⁹ This point may be obscured by the fact that the same terms, such as "freedom," are often used to describe both of these distinct claims.

Moreover, the reasons due to which an action is permissible are not necessarily reasons for or against interference (and vice versa). The moral status of the original action and the moral status of responsive actions may depend on different factors.¹⁰⁰ For example, the consequences of interfering with an action may differ from those of the action (the former consequences may extend beyond merely enabling or preventing the consequences of the action). Accordingly, there may be a reason to interfere with an action that is permissible (for example, to prevent a permissible action whose overall consequences are not optimal), and there may be no reason to interfere with an action that is not permissible (for example, if its overall consequences are optimal). Another example is the view that actions are sometimes permissible due to agent-relative reasons that do not apply to people other than the agent.¹⁰¹ For instance, some argue that people are not always required to make a personal sacrifice even when making such a sacrifice would be best, all things considered. This reasoning may not extend to people who can respond to the original actions (or omissions) in various ways.¹⁰²

More specifically, even assuming that there are (non-instrumental) reasons, such as freedom or autonomy, against interference with certain actions, these reasons are not necessarily sensitive to the moral status of the original actions as such, and, more specifically, they do not necessarily exist because of the moral status of these actions. For example, there may be more often reasons against interference with permissible actions, compared to wrongful ones, since the consequences of the latter are usually worse. These reasons are not due to the moral status of the actions as such. Accordingly, these reasons may not be limited to permissible actions.¹⁰³ In terms of rights, to the extent that there are rights that limit what others are permitted to do in response to an agent's action, this may not be due to the moral status of the original action as such. For example, the fact that an action is permissible may not trigger in itself a right against interference with it, and the fact that an action is wrong may not in itself support interference. Indeed, it is not clear why the significance of autonomy and freedom, for example, is limited to permissible actions. Here as well, my goal is not to settle this question, but rather to note that the assumption that the moral status of actions matters in itself in terms of the moral status of responsive actions is not obvious, even if freedom or autonomy are important in themselves (and not only instrumentally).¹⁰⁴

Other pertinent accounts are expressivist. One suggestion is that there is a non-instrumental reason to condemn wrongful actions, for example by employing the criminal law against them.¹⁰⁵ A related claim is that there is a reason to prevent wrongful actions, since failure to do so expresses an endorsement of these actions, at least when this is done so that some good consequences would follow (as in the bridge case, for example, when not preventing the action is a means of preventing greater harm).¹⁰⁶ One familiar concern regarding these views involves the assumption that the relevant expressions are valuable in themselves. Clearly, there are often reasons for or against expressions due to their consequences. Indeed, the intuitive appeal of the view that various expressions are valuable is at least partly due to the likelihood that they will have some positive consequences (including indirect and long-term ones). The controversial question is only if there is a reason to express some facts when the expression does not bring about any good consequences. It seems to me that the more plausible answer is negative. Consider a case in which condemnation of wrongdoing is certain to have no (positive) consequences (including indirect and long-term ones), for example because no one hears the message, or since no one understands it, or due to the fact that no one is moved by it. In such cases, the claim that there is nevertheless a reason to express the fact that the relevant actions are wrong may seem puzzling.¹⁰⁷

More specifically, someone who does not prevent a wrongful action does not necessarily endorse it, even if this is done so that good consequences would follow. Such a person may believe that the wrongful action should not have been performed, but given that it was, or will be, carried out, we should take this fact into account when we consider what to do next. The attitude of such a person toward the wrongful action is thus different in one respect than the attitude of an agent toward a means that she takes to achieve a goal.

Finally, another suggestion is that we should respond to ("public") wrongs by way of a criminal trial since wrongdoers should "answer" to the members of their political community; namely, explain whether their actions are justified or excused. Indeed, according to this view, responding to such wrongs is the "unique function" of the criminal law.¹⁰⁸ Of course, such a procedure is often valuable in light of its consequences; for example, as a means of preventing (unjust) harm in the future (for instance, by way of deterrence) or of punishing those who deserve to be punished. The question is whether such a procedure is valuable in itself and thus regardless of these concerns about the moral status of states of affairs and persons. A test case is one in which the relevant facts are known to everyone; for example, all know that the agent is not blameworthy (and that the action is not wrong). In such a case, where everyone knows all the relevant facts, a trial appears to be redundant. Of course, such a case is not common. But this test case indicates that the value of such a procedure is merely instrumental. It is especially implausible, I think, to hold that a legal response, in particular, is valuable in itself, as the law is merely a means.¹⁰⁹

There are other arguments for the common view that the moral status of actions matters in itself to the justification of responsive actions. But I believe that the above discussion clarifies the objection that I want to press in this part of the paper. In a nutshell, my suggestion is that when it comes to prevention, it is more plausible to focus on the moral status of states of affairs (including consequences of actions), whereas with respect to responses whose goal is not prevention, such as retributive responses, what ultimately matters is the moral status of persons rather than actions.

6. Conclusion

The view that the moral status of actions is an independent reason for or against some responsive actions is intuitively appealing and widely accepted. However, a careful distinction between the moral status of actions, states of affairs, and persons casts doubts on the intuitive appeal of this view and its rationale.

My suggestion that we should reject this view has various implications, inter alia regarding the law. For example, it implies that (responsive) legal rules that refer to the moral status of actions, such as justification defenses, are appropriate only if, and when, the moral status of actions is related to other (more basic) concerns (for example, regarding the moral status of agents and states of affairs). This conclusion applies also to specific questions such as whether justificatory defenses should be concerned with the mental states of the agents,¹¹⁰ if they should apply only to actions that are obligatory, or also to actions that are merely permissible, and whether the legal status of people who aid or resist the actions of others should depend on the moral status of the latter actions. The above discussion also demonstrates why controversies as to whether specific defenses are justifications or excuses¹¹¹ are, in an important sense, misguided, since the basis and content of both types of defenses ultimately depend on the same factors – the moral status of states of affairs and of persons.¹¹² More generally, my suggestion implies that the morality of responsive actions should not mirror that of the actions to which they respond.

It may be objected that my suggestion is incompatible with the common and plausible view that the (criminal) law may be used only in response to actions, and not, for example, in response to mental states that are not manifested in actions (even if the relevant persons are blameworthy or when this would bring about optimal states of affairs).¹¹³ A natural elaboration of this view may be that using the (criminal) law is justified only in response to wrongful actions. However, even if (or to the extent to which) this elaboration is reasonable,¹¹⁴ it does not follow that wrongdoing is itself a reason against criminal law responses. For there are often other strong reasons against using the criminal law in response to actions that are not wrong or to mental states that are not manifested in actions. These include the concerns that evidence regarding culpability that is unrelated to (wrongful) actions is often unreliable and that the power to punish people who did not perform wrongful actions would be abused. Indeed, I think that such reasons provide a better (and specifically a more parsimonious) explanation for the significance of (wrongful) actions to the criminal law.¹¹⁵

A more general objection is that my suggestion would exacerbate the tendency to use the criminal law too much. But while excessive use of the (criminal) law is a serious concern, the proper limits of the law should be determined in light of factors that are morally significant in the relevant respects. Therefore, this objection is compelling only if the moral status of actions is morally significant in itself in this regard. Yet the use of the criminal law in many cases may be inappropriate based on concerns that are not related to the moral status of actions as such, but rather to that of the relevant agents (who may not be culpable enough), or to the consequences of applying the criminal law (which may not be optimal), or both. Therefore, employing the criminal law in these cases is unjustified, even if the moral status of actions is insignificant in itself in terms of the justification of responsive actions.

Acknowledgments

[For helpful comments, I am grateful to Ron Aboodi, Alon Harel, Jonathan Jacobs, Liat Levanon, Michael Moore, Haris Psarras, Anthony Sangiuliano, Tom Sinclair, and the participants in the UK Analytic Legal and Political Philosophy Conference and in the Faculty Workshop at the University of Illinois College of Law.]

Disclosure Statement

[No potential conflict of interest was reported by the author(s).]

Additional information

Funding

[I am also grateful to Inbar Gill and Hallel Arbell for assistance in the research and to the Israel Science Foundation for financial support (Grant 355/21).]

Notes

1 In what follows, I sometimes refer to the first action as the “original” action and to the other actions as “responsive actions.”

2 See Shiffrin, “Paternalism, Unconstitutionality, and Accommodation,” 223–24.

3 See Feinberg, Harm to Others, 154–55; Moore, Placing Blame, 647–49; Dworkin, “Devlin Was Right,” 943; Thomson, “Physician-Assisted Suicide,” 516; Alexander and Ferzan, Crime and Culpability, 17–18; Edwards, “Ouster of the Courts,” 728; Simester and von Hirsch, Crimes, Harms, and Wrongs, 29–30; Arneson, “Enforcement of Morals Revisited,” 441; Dougherty, “Agent-Neutral Deontology,” 530–31; Tadros, Wrongs and Crimes, 107; Edwards, “Theories of Criminal Law,” 5, 7; Edwards, “An Instrumental Legal Moralism,” 175; Duff, “Criminal Law and Criminalization,” 68–70; Kelly, The Limits of Blame.

4 See Quong, “Proportionality, Liability, Defensive Harm,” 145; Quong, Morality of Defensive Force, 108–9; Gordon-Solmon, “Liable to Defensive Harm,” 547.

5 John Stuart Mill’s claim that “we do not call anything wrong unless we mean to imply that a person ought to be punished in some way or other for doing it” (Mill, Utilitarianism, 72) goes even further.

6 See Sher, Desert, 4; Gardner, “Corrective Justice,” 22.

7 Other versions of the common view refer to the infringement of rights, even if they are not wrong, all things considered. See Gordon-Solmon, “Liable to Defensive Harm,” 547 (defensive force); Wellman, Rights Forfeiture and Punishment, 69–70 (compensation).

8 See Thaysen, “Defining Legal Moralism,” 179.

9 Arneson, “Self-Defense and Culpability,” 244. See also Gardner, who asks: “What should the rules of tort law be if not instruments to improve what people do?” “Tort Law,” 543.

10 See Shiffrin, “Paternalism, Unconstitutionality, and Accommodation,” 229–30.

11 See, for example, Gardner, “Corrective Justice,” 22; Wellman, Rights Forfeiture and Punishment, 69–70.

12 See Tadros, Wrongs and Crimes, 135, 159. See also Alexander, who argues that “the fact that a discriminatory action is wrong is a reason to prohibit it and to punish the agent.” “Biases, Preferences, Stereotypes, Proxies,” 157; Kelly, The Limits of Blame; Petersen, Why Criminalize; Petersen, “Defense of Utilitarian Criminalization.”

13 See Moore, Placing Blame, 33; Moore, “Legal Moralism Revisited,” 443; Dworkin, “Devlin Was Right,” 927–28; Gardner, “Corrective Justice,” 7; Arneson, “Enforcement of Morals Revisited,” 44.

14 See Tadros, Wrongs and Crimes, 159; Edwards, “An Instrumental Legal Moralism,” 156. James Edwards claims that this is the most plausible interpretation of influential versions of legal moralism such as those of M.S. Moore and R.A. Duff.

15 See Tadros, Wrongs and Crimes, 159.

16 See Feinberg, Harm to Others, 11; Simester and von Hirsch, Crimes, Harms, and Wrongs, 29.

17 See Marshall and Duff, “Criminalization and Sharing Wrongs;” Husak, Overcriminalization, 135–36; Duff, “Criminal Law and Criminalization,” 76. R. A. Duff emphasizes that the reason to employ criminal law in these cases is the wrongful nature of the action, whereas the “public” nature of the action secures the “standing” to employ criminal law. “Criminal Law and Criminalization,” 74.

18 See Wellman, Rights Forfeiture and Punishment, 6.

19 See Hart, Punishment and Responsibility, 9; Moore, Placing Blame, 72–73; Moore, “Legal Moralism Revisited,” 443, 445; Moore, “Steinhoff and Self-Defense,” 324–25; Hurd, Moral Combat; Husak, Overcriminalization, 65–66; Simester and von Hirsch, Crimes, Harms, and Wrongs, 23; Simester, “Enforcing Morality,” 483; Duff, “Towards Modest Legal Moralism,” 218–21; Dimock, “Contractarian Criminal Law Theory,” 152; Danaher, “Robotic Rape,” 77.

20 See Fletcher, Rethinking Criminal Law, 760–62; Greenawalt, “The Perplexing Borders,” 1918–27; Gur-Arye, “Between Justification and Excuse,” 225–29.

21 See Fletcher, Rethinking Criminal Law, 768.

22 See, for example Feinberg, Harm to Others, 34–35; Simester and von Hirsch, Crimes, Harms, and Wrongs, 38–39. The same is true regarding the view that there is a reason to use criminal law in response to conduct that is “offensive.” See Feinberg, Offense to Others, 2; Simester and von Hirsch, Crimes, Harms, and Wrongs, 91–92.

23 See, for example, Feinberg, Offense to Others, 4–6.

24 See Raz, The Morality of Freedom, 419–21; Almeida Ribeiro, “A Pluralist Case.” H. L. A. Hart interprets John Stuart Mill as endorsing the view that there is a reason to enforce morality while assuming that the relevant moral criterion is harm to others. See his postscript to the Hebrew edition of Hart, Law, Liberty, and Morality, 120–21.

25 Keeling says that “most people” accept some version of this view. “Why Trolley Problems Matter,” 303.

26 For this distinction, see Tadros, Wrongs and Crimes and Enoch, “Against Utopianism,” 6–7.

27 It is, however, worth noting that a less radical conclusion – according to which certain specific claims for the contrary view are false (or at least not as obvious as we may have thought) – is also interesting.

28 It is not always clear if claims that the moral status of actions matters in terms of the justification of other actions assume that it matters in itself or rather only in light of its relation to other factors, inter alia, due to the tendency to conflate the relevant factors.

29 Namely, defenses that apply to actions that are morally permissible despite the fact that they are harmful, for example, since they prevent greater harm.

30 Of course, facts due to which actions are right or wrong may be significant also in other ways. For example, the fact that an action prevents or causes undeserved harm is relevant not only to its moral status, but also to the moral status of its consequences. I suggest that such facts are not relevant only in terms of the moral status of actions.

31 I consider other types of responsive actions, such as compensation, in a currently unpublished paper on “Wrongdoing and Compensation.”

32 See Segev, “Should Law Track Morality?” and “For and Against Criminalization.”

33 See section II.

34 see Section III.

35 I consider more examples in the following section.

36 I discuss relevant cases also in section II.

37 This is the case regardless of whether the relevant technologies are moral agents themselves. For discussion of related questions, see, for example, Keeling, “Why Trolley Problems Matter” and Woollard, “The New Trolley Problem.”

38 I consider this topic further in Segev, “Moral Innocence.”

39 What may be controversial is whether the ultimate reason in this regard is the harm itself or the fact that it is undeserved.

40 I return to this point below.

41 This objection has been raised on various occasions when I have presented this paper, as well as by a referee.

42 These relations may explain, inter alia, why actions are often described by reference to their consequences and to the motives of the agent.

43 The most influential book on the topic is Fletcher, Rethinking Criminal Law.

44 As John Rawls famously noted, “deontological theories are defined as non-teleological ones, not as views that characterize the rightness of institutions and acts independently from their consequences. All ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would be irrational, crazy.” Rawls, A Theory of Justice, 26.

45 And one way to bring about a certain state of affairs is to encourage an action that has the relevant consequence.

46 Examples are the association of the claim that there is a reason not to assist wrongful actions, and the claim that there is a reason not to promote inequality (see Shiffrin, “Paternalism, Unconstitutionality, and Accommodation,” 223–24, 231); and the explanation that there is a reason to persuade another to keep his promise so as to prevent disappointment (see Edwards, “An Instrumental Legal Moralism,” 186).

47 See, for example, Zimmerman, Living with Uncertainty. I discuss this controversy in the context of the criminal law in Segev, “Justification under Uncertainty.”

48 This view appears to be especially common in legal contexts and particularly in the context of the criminal law. See, for example, Fletcher, Rethinking Criminal Law, 463 and Fletcher, Grammar of Criminal Law, 306–7. It should be noted, however, that focusing on actions in the legal contexts may be appropriate for other reasons.

49 Katz asserts for example that “legal moralism” is “sometimes called retributivism.” The Law is Perverse, 192. The term “culpable acts” (see, for instance, Alexander and Ferzan, Crime and Culpability, 93) also relates the moral status of actions and agents. It may be used to refer to cases in which the actions are wrong and the agents blameworthy (since the latter are responsible for these actions). But it seems best to separate these issues in order to leave room for the possibilities whereby the moral status of the actions and of the agents diverge; namely, wrongful actions committed by agents who are not blameworthy and permissible actions committed by agents who are blameworthy. Larry Alexander and Kimberly Kessler Ferzan seem to rule out the latter option, namely, to assume that agents are blameworthy only if they perform wrongful actions, either in general or only in a way that is pertinent to the criminal law. See Alexander and Ferzan, Crime and Culpability, 199–209; Alexander and Ferzan, Problems and Puzzles, 186; Alexander, “Case for Strict Liability,” 532. However, this assumption is controversial of course and it does not affect the first divergence.

50 As noted above, the distinction between the moral status of actions and of persons – and more specifically between wrongdoing and culpability and between justifications and excuses – is especially salient in theoretical discussions of the criminal law.

51 See Hurd, Moral Combat, 303.

52 Ibid., 12.

53 Cornford, “Wrongness Constraint on Criminalisation,” 622.

54 The standard assumption is that the death of five persons is (significantly) worse than that of the one. This assumption is widely accepted but not obvious (due to doubts regarding the significance of death and of the number of persons involved). A version that avoids these complications is harming one person in a way that prevents (much) worse harm to another.

55 I assume that the agent is not blameworthy, inter alia, since the action would be justified if it would not harm the man on the bridge. This assumption is plausible, it seems to me, although it is not obvious. Another test case involves a mistake regarding the moral standard itself (as opposed to a morally significant fact); for example, a belief that consequentialism is true (which, we should assume, for the sake of the argument, is false). But considering such a case involves an additional complication, given the controversy about whether mistakes regarding basic moral standards exculpate in the same way as factual mistakes. A third version involves an agent who acts under severe duress.

56 See Tadros, Wrongs and Crimes, 165, 203.

57 See Otsuka, “Killing the Innocent;” McMahan, “The Innocent Attacker.”

58 For these implications, see Mogensen, “Optimific Wrongs,” 224–26.

59 Compare Greco, “Justifications and Excuses,” 527.

60 Paul H. Robinson emphasizes that the answer to the question of whether a third party should be entitled to interfere should depend on the facts rather than the mental state of the agent. But while this is clearly right with respect to our concern with the consequences of the action, this is not the case with regard to the concern about desert, which depends rather on the moral status of the agent. See Robinson, Structure and Function, 100–24.

61 The above view implies that the force of this reason is sometimes significant as well if it depends on the degree of wrongdoing.

62 See also Tadros, Wrongs and Crimes, 163–64; Mogensen, “Optimific Wrongs,” 222–25; Alexander and Ferzan, Problems and Puzzles, 36; Oberman, “Killing and Rescuing,” 448–49. But see Kamm, “The Taliban Women,” 75–76.

63 The assumption that such attempts are not wrong is controversial, but it follows from fairly common premises. For the view that incomplete attempts are not wrong, see for example Alexander and Ferzan, Crime and Culpability, 210–11.

64 This is therefore the case also with respect to accounts that combine consequentialist and deontological concerns, as standard deontological theories do.

65 I consider a revisionist version in this respect in section III.

66 This example is taken from Norcross, “Rethinking Rightness,” 41 and Reasons without Demands, 22–23).

67 When it seems that such actions should be performed, in order to prevent other objectionable actions, the most plausible explanation appears to be related to the prevention of the consequences of these latter actions. See, for example, the case described by Kramer, “Demandingness of Deontological Duties,” 20–21.

68 According to this interpretation, if there is a reason to prevent the actions of others in extreme cases, this is the reason to prevent their bad consequences.

Another question is whether there is a reason to prevent the good consequences of actions that violate deontological constraints. For the view that there isn't, see Alexander, “World Full of Risks.”

69 See Segev, “Deontological Wrongdoing;” Mogensen, “Optimific Wrongs.”

70 See, for example, Greenawalt, “The Perplexing Borders,” 1907–09.

71 See, for example, Fletcher, “The Right Deed,” 320; Greenawalt, “Distinguishing Justifications from Excuses,” 94–95; Gardner, “Justifications and Reasons,” 104–5; Gardner, “The Gist of Excuses,” 588–59; Husak, “Criminal Liability of Accessories,” 516–17; Gur-Arye, “Between Justification and Excuse,” 232–33; Simester, “Wrongs and Reasons,” 659, 664; Simester and von Hirsch, Crimes, Harms, and Wrongs, 31; Uniacke, “Criminalising Unknowing Defence.”

72 It is especially uncommon to hold that the moral status of actions, as opposed to that of agents, depends on the fact that the agent acted for the right reasons.

73 It may be objected that it is unnecessary to seek a rationale for the common view beyond its intuitive appeal; and, moreover, that such a rationale is impossible, since the moral status of actions is an independent factor and thus does not have a more basic explanation. However, even ultimate concerns can be explained, as the suggestions that I discuss demonstrate, and such explanation is required, given the above doubts.

74 This may not be always desirable, however. See Dan-Cohen, “On Acoustic Separation.”

75 See Temkin, Rethinking the Good, 205; Lippert-Rasmussen, “Telic and Deontic Egalitarianism,” 105.

76 A related view is that while there is no reason to prevent wrongdoing as such, there is a reason to prevent the facts that render wrongful actions wrong. See Tadros, Wrongs and Crimes, 162–66. This suggestion is of course plausible and uncontroversial if these facts are bad states of affairs, for example, the harm that some wrongful actions cause (which makes them wrong). But if this is the case, the reason to prevent wrongful actions is not an independent one but rather derives from the more basic reason to prevent bad states of affairs, which applies regardless of whether they are caused by wrongful actions. Therefore, the question is whether there is a reason to prevent the facts that constitute wrongful actions even when these facts are not in themselves also bad states of affairs in the standard sense.

77 See Tadros, Wrongs and Crimes, 1.

78 See also Alexander and Ferzan, Problems and Puzzles, 183.

79 As Tadros himself acknowledges. See Wrongs and Crimes, 164.

80 And if the point is that such regret is appropriate since the action does affect the moral record of the agent, this is again a concern about the moral status of the agent rather than the action.

81 See Edwards, “An Instrumental Legal Moralism,” 167.

82 For such a view, see, for example, Alexander and Ferzan, Crime and Culpability.

83 Compare Moore, “Legal Moralism Revisited,” 448–49.

84 This view thus accepts moral luck regarding actions (circumstantial luck), and it is also compatible with moral luck regarding consequences (resultant luck). It may not be compatible with moral luck regarding character (constitutive luck). But if a distinction between these types of moral luck is untenable, the more plausible option is, I think, to reject the idea of desert altogether, rather than to endorse all types of moral luck.

85 See, for example, Feldman and Skow, “Desert,” section 1.

86 For this view, see Moore, “Moral Significance of Wrongdoing,” 237–38; Moore, “Legal Moralism Revisited,” 444.

87 M. S. Moore accepts this assumption. See Moore, “Moral Significance of Wrongdoing,” 238.

88 Notice that these notions are sometimes based not on wrongdoing, but on different grounds, for example risk or culpability. See, for example, McMahan, “Liability to Defensive Killing,” 394; Quong, Morality of Defensive Force, 108–9; Ferzan, “Culpable Aggression,” 669–70; Tadros, “Two Grounds of Liability.”

89 Victor Tadros, who argues that there are such duties, sometimes refers to “wrongdoing” as their trigger (see for example, Tadros, The Ends of Harm, 266, 269, 272, 274, 276, 281, 288, 291) and sometimes to “culpable wrongdoing” (see Tadros, The Ends of Harm, 268, 283). My suggestion is that it is only culpability that matters in this respect.

90 Tadros, “Appropriate Response to Wrongdoing,” 241.

91 Tadros also claims that “the state does not have a powerful reason to prevent wrongful acts because they are wrong.” Wrongs and Crimes, 162–63. It is unclear if he thinks that a reason to prevent such acts exists, but that it is not powerful, or that no such reason exists.

92 See Doggett, “Letting Others Do Wrong,” 48.

93 See ibid., 51.

94 One difference is that Tyler Doggett claims that persons should prevent states of affairs that are not optimal only when a duty to protect exists, whereas my view implies that there is always a pro tanto reason to prevent such states of affairs.

95 See section II.

96 See section II.

97 Another version of a patient-centered deontological constraint forbids not only using people as means oneself but also allowing others to be used as means, including by other agents. See Sinclair, “Preventing Optimific Wronging,” 464; Alexander and Ferzan, Problems and Puzzles, 108–32; Walen, The Mechanics of Claims. This version is not an example of the view under consideration if the ultimate factor is the fact that other people are being used as means, as opposed to the fact that they are used as means by the wrongful actions of others. The first option objects also to cases in which people are being used as means without the wrongful actions of others (for example, if a person falls onto the tracks such that his body would stop the trolley that would otherwise kill five others). The second option that considers the wrongdoing as the ultimate factor is a variant of the patient-centered deontological constraints that I discuss above.

98 See Raz, The Morality of Freedom, 381; Cornford, “Wrongness Constraint on Criminalisation,” 625–29.

99 Similarly, the fact that an action is wrong entails only that the action should not be performed and not a reason to respond to the action in a particular way, such as a reason to prevent the action (or to punish the agent).

100 See Dworkin, “Devlin Was Right,” 943; Arneson, “Conceptions of Equal Opportunity,” 161.

101 According to one view, it is possible to transfer an agent-relative reason to another, but even this view requires an agreement, which may be subject to various limitations. See Bazargan-Forward, “Vesting Agent-Relative Permissions,” 672–74.

102 See Arneson, “Deontology’s Travails,” 354, FN 8. But compare Thomson, “Turning the Trolley.”

103 See, regarding autonomy, Enoch, “Violate One’s Duty,” 379–80; Herstein, “Defending the Right,” 351. Enoch and Herstein are concerned with the possibility and plausibility of “a right to do wrong.” My claim is stronger than the claim that there is such a right in one respect, since such a right may be based on the fact that there is no conclusive reason to interfere with a wrongful action, whereas I suggest that the fact that an action is wrong is not even a pro tanto reason for interference.

104 Notably, even if there is a non-instrumental reason for or against interference that is sensitive to the moral status of the relevant action, this reason is not necessarily decisive. In this respect, this suggestion does not align with the common view that often considers the reason against employing the criminal law in response to permissible actions as decisive.

105 See, for example, Kelly, The Limits of Blame.

106 Sinclair, “Preventing Optimific Wronging,” 467–68. Compare Hampton, “The Goal of Retribution.” Another expressive claim may be that there is a reason against condemning actions that are not wrong, perhaps as a particular expression of a more general reason against lying, and that enacting a criminal offense involves condemning the actions to which it applies. See Duff, Answering for Crime.

107 This doubt applies also to the claims that there are non-instrumental reasons to express regret about bad states of affairs, or to condemn culpable agents.

108 See Duff, Realm of Criminal Law, 100, 186, 468.

109 See section I.

110 See section II.

111 See, for example, Huigens, “Duress;” Berman and Farrell, “Provocation Manslaughter.”

112 The position of several writers regarding criminal law defenses seem to align with my suggestion, but is inaccurate and not completely clear in several respects. These authors begin with the claim that the criminal law should ultimately be concerned with culpability rather than wrongdoing (see Alexander and Ferzan, Crime and Culpability, 92, 103; Alexander and Ferzan, Problems and Puzzles, 8; Dsouza, Rationale-Based Defences, 13) and that the rationale of both justification and excuses in the criminal law is desert (see Husak, “Partial Defenses,” 169). These claims appear to cohere with my view that the moral status of actions – including whether they are justified – is not important in itself to the morality of responsive actions. However, first, these claims are different from my suggestion in that they assume that concerns about culpability always defeat concerns related to consequences (other than desert). For example, one reason in favor of justification defenses is that they may encourage actions the consequences of which are optimal overall. Second, it is unclear if these authors consider the criminal law, and sometimes even more specifically criminal law defenses, to be special in this regard. (Mark Dsouza limits his claim to a certain part of the criminal law – the part that consists of justification and excuse defenses –, which he conceives of as decision rules. And he seems to think that another part – the definition of offenses, which he classifies as conduct rules – should be concerned with the moral status of actions.) My suggestion applies to all responsive actions. Finally, these claims do not consider all aspects of culpability, but rather, for instance, only beliefs as opposed to other mental states. See Alexander and Ferzan, Crime and Culpability, 105. The relation between this claim and the above claims is unclear: if the moral status of actions matters for the criminal law only if and when it affects the moral status of agents, what is important is not whether actions are justified but rather whether agents are not blameworthy.

113 For relevant discussions, see Husak, Overcriminalization, 4–5; Mendlow, “Punish Thought;” Schauer, “Sanctions for Acts.”

114 For some doubts, see Segev, “Moral Innocence.”

115 See section III.