PUNISHMENT and RESPONSIBILITY Essays in the Philosophy of Law Second Edition BY H. L.A. HART With an Introduction by John Gardner OXFORD UNIVERSITY PRESSUNIVERSITY PRESS Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. I furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dares Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Oxford University Press 2008, except Introduction © John Gardner, 2008 ‘The moral rights of the author have been asserted Crown copyright material is reproduced under Class Licence Number CO1P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Database right Oxford University Press (maker) All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent co the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available ‘Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by Antony Rowe Led., Chippenham ISBN 978-0-19-953477-7 (Hbk.) ISBN 978-0-19-953478—4 (Pbk.) 13579108642PREFACE These nine essays, written during the last ten years, are arranged here, not in chronological order, but with some attention to similarity of subject-matter. Chapters I, II, and III are each in part concerned with the rationale of the doctrine of mens rea, though my main reason for reprinting the essay forming Chapter III is its relevance, in conjunc- tion with the later legal and statistical material added in the Notes, to the discussion of capital punishment which will shortly again be an issue in this country, since the period of abolition secured by the Murder Act 1965 runs out in 1970, Chapters IV, V, and VI are each mainly concerned with the analysis of a specific condition of criminal responsibility (‘acts of will’, intention, and negligence). Chapters VII and VIII confront the claim that the criminal law could and should dispense with mental conditions of responsibility. In Chapter IX, I attempt to distinguish and relate the bewilderingly many meanings of ‘responsibility’ and ‘retribution’. I have not reprinted here, in spite of some requests, my earliest venture into this field: “The Ascription of Responsibility and Rights’, published in the Proceedings of the Aristotelian Society (1948-9). My reason for excluding it is simply that its main contentions no longer seem to me defensible, and that the main criticisms of it made in recent years are justified.’ I am deeply indebted to Mr. A. J. Baxter who identified and corrected more inaccurate quotations and references, and more infelicities of grammar, punctuation, and style, than I care to con- template. I am responsible for those that remain. I am also grateful to Miss Joan Watson for her assistance in the preparation of the Notes. University College H.L.A.H. Oxford 1967 ' See, for example, P. T. Geach, ‘Ascriptivism’, Philosophical Review 69 (1960), p. 221, and G. Pitcher, ‘Hart on Action and Responsibility’, ibid., p. 266.