By Anders Kaye*
*Associate Professor, Thomas Jefferson School of Law.
As fundamentally social creatures, healthy and normal human persons have a deep and well-developed capacity for identification with other persons. We are susceptible to such identification when we see others as similar to ourselves, and especially when we have extensive, particularized knowledge about such other persons. In this Article, I argue that identification plays an important role in our excusing practices.
To date, the leading naturalist and psychological accounts of excuse have made no room for identification. Instead, they follow an influential naturalist account (“the objectification account”) in which all our excuses are explained by reference to either our “reactive attitudes” or the “objective attitude.” In this Article, I offer an alternative naturalist account of excuse that makes room for identification; I describe identification and parse it into component judgments and attitudes; I show how these component parts are conducive to excusing and how they drive some of our most important excuses; and I explain how identification can help us understand a long-standing mystery in excuse law (tout comprendre, c’est tout pardonner). Finally, I suggest that identification helps us understand why certain long-standing controversies in excuse theory persist, including debates about rotten background excuses and about the significance of causation and determinism for excuse.
Having laid out the identification account, this Article also shows that identification has important ramifications for excuse theory. First, where the conventional objectification account makes excusing a disreputable practice, the identification account shows that excusing is connected to our social and imaginative capacities, and thus to some of the best parts of our psychology. Taking identification into account, then, should make us more receptive to innovation in and expansion of the criminal law excuses. Second, where the objectification account resists excuses rooted in formative character influences, the identification account is open to such excuses. And, third, where the objectification account denies the possibility of causal excuses, the identification account offers reasons to think such excuses are plausible. These are deep and important differences between the two accounts, differences that do not emerge clearly until we have a systematic account of identification in mind.
In the end, the identification account gives us a naturalist account of the excuses with which we can identify. Where the objectification account yokes excuse to a weird and detached psychological outlier (the objective attitude), the identification account connects excuse to a central and valued feature of our social psychology. In this way, it gives us a picture of the excuses that feels natural, intuitive, and connected to what we value most in ourselves, and it helps us understand why we persist in the practice of excusing.