5.2 Difficulty
5.2.2 Difficulty as Merely an Excuse Condition
It is generally accepted, as discussed earlier, that a morally wrong action is blameworthy except when an extenuating circumstance applies.15 Exten- uating circumstances include justifications and excuses.16 To say that an action is justified “is to say (insofar as we focus on the action, rather than the agent) that though the action is of a type that is usually wrong, in these circumstances it was not wrong” (Baron, 2005, p.389). The proponent of either the Weak or Strong Difficulty Thesis claims that difficulty can be a justification condition. I, however, will argue that difficulty is of the type of extenuating circumstance that makes an action whichis morally wrong not blameworthy: excuses.
We can make one argument for the consideration of difficulty as an excuse condition by making use of discussion from literature. First, it might be useful to think a little about the nature of excuses. Often, in everyday moral discourse, a mistaken belief can provide an excuse. Imagine the case in which an agent deliberately smashes the window on the front of someone’s house with a rock. Ordinarily we would acknowledge this behaviour as wrong, as it is wrong to damage the property of others without permission. If there is no more to the story – if this was sheer and gratuitous destruction – the
distribution of costs matters here. For example, we might not think that an aggregation of interpersonal costs can outweigh the cost to one individual, e.g. (Scanlon, 1998, chapter 5). Whether or how this is the case is not a matter for discussion here.
15
For example, Smith (1983), Kelly (2013), Baron (2005, 2007).
16In criminal law, we can categorise these asdefences. These acknowledge that a law
was broken, but point to circumstances which make it the case that punishment is not appropriate, and (where successful) result in acquittal (Dressler, 1995, §16.01). In legal philosophy there are also two other types of defenses. These are “specialised defenses”, which are specific defenses acknowledged in the law for particular crimes, and “extrinsic defenses”, which acknowledge the culpability of the agent but offer reasons why prosecution is not appropriate (Dressler, 1995, §16.03,[D],[E]). These less obviously have parallels in the moral case.
agent is blameworthy for this conduct.
If however, the agent broke the window to gain access to the building after judging that a resident needed urgent medical attention the verdict is likely to be different. This will often provide at least an excuse for doing this, even if the agent was mistaken. Perhaps they leapt to the verdict that the resident was ill, when they were simply lying in the middle of the floor relaxing, and the agent should have knocked on the window first or done more to ascertain the particulars before responding in that manner. (If they were correct, or perhaps warranted in their judgment that help was needed, then the verdict is likely to be that the act was not even wrong, as this would justify the breaking of the window.)
So mistaken beliefs or ignorance of certain facts can absolve an agent of blameworthiness.17 These types of scenarios do not usually provide an excuse in legal philosophy, as a certain mens rea – state of mind – is, for most crimes, a required element.18 There is a structural similarity even
between these cases and the moral cases however, as it is still accepted that theactus reus – the criminalised action – has been committed, but that the agent is not culpable.
What else can count as an excuse? There is considerable discussion of excuses in legal literature. While there are differences in what amount to excuses in legal and moral discourse, the sorts of explanation that can serve as excuses are similar. Of course, excuses that exculpate in law may not leave one without blame morally, because there is a great deal of behaviour which, though we may condemn, we do not deem suitable for criminal punishment.
Marcia Baron categorises excuses as falling into two types:
a. those (insanity being the paradigmatic instance) that come into play because of some feature of the actor that differentiates him from most adults and makes it very difficult for him to act as the law requires.
b. those (such as duress) that come into play because the situation was
17This is not always the case, as there are cases of culpable ignorance, discussed notably
by Holly Smith (1983).
18There are cases where mistakes of facts (or even mistakes of law, which usually
cannot provide legal excuses) are able to excuse, and arguments that further mistakes should excuse as discussed in Garvey’s “When Should a Mistake of Fact Excuse?” (2009). Normally, however, defenses based on mistakes of fact will constitute “failure of proof” defences.
such that it was extremely difficult for that actor and would be ex- tremely difficult for most actorsto avoid acting wrongly or unlawfully.
(2007, p.2319)
It is notable that both categories reference difficulty. However, the de- scriptions here seem to relate more obviously to other sorts of difficulty. Motivational difficulty, it seems, has to be perceived, whereas some of the difficulty discussed here clearly does not. Its being difficult (either generally, or for a particular agent) to discern whether someone needs urgent medical attention or whether they are simply relaxing in a situation is not something the agent will notice. These are instances more like the difficulty involved hitting a bullseye, in that they are difficult because of the unlikelihood of success despite intentions oriented appropriately, rather than Cohen’s case of cycling with someone on the handlebars, or the motivational difficulty previously mentioned, where the difficulty is phenomenologically salient to the agent.
Cases of excuse because of duress are helpful cases. They give an instance of non-blameworthy agents, where it seems like they are not blameworthy because of difficulty, but the obligation remains unchanged. This is evident because we still deem the agent succumbs to duress as having done some- thing wrong (even if they are not blameworthy because of it). Duress is (usually20) accepted as a legal defense if the following holds:
1. another person threatened to kill or grievously injure the actor or a third party, particularly a near relative, unless she committed the offense;
2. the actor reasonably believed that the threat was genuine;
3. the threat was “present, imminent, and impending” at the time of the criminal act;
4. there was no reasonable escape from the threat except through com- pliance with the demands of the coercer; and
5. the actor was not at fault in exposing herself to the threat
19While Baron intends her discussion to bear fruit in legal discussions of excuses, she
expects her discussion of excuses to apply to morality more generally (2005, p.39).
(Dressler, 1995,§23.01[B])
It seems clear that duress of this sort may excuse an agent, not only legally, but also morally. In many cases, it might look like the agent is not only excused, but also morally justified, in complying under duress. We could imagine, for instance, a legitimate threat against one’s life unless one stole a snack from a convenience store. This type of behaviour, at least for consequentialists, will be entirely justifiable. When the action required under compliance is considerably worse (but still excusable), however, we may judge that the agent isn’t blameworthy, but be unwilling to accept that the action was not wrong. By excusing the agent in this case, we say “Yes, you did something wrong, but considering the circumstances, we can’t blame you”.
It also seems like identifying difficulty as the cause for this excuse is the correct diagnosis. We can imagine an agent going through a horrible internal struggle before co-operating with a terrorist’s demands and finding resisting – believing that this would result in their death – to be too difficult (maybe impossible, but for simplicity, let us not assume that at this juncture). If another agent of very cool temperament, simply evaluated the situation and decided that they would rather live succumbed to the same demands – with no sign of difficulty or internal struggle – we may judge them considerably more harshly.
In some relevant ways, the duress cases seem structurally similar to the cases involving motivational difficulty discussed earlier. The agent may re- alise what theyshould do, and this may involve minimal physical exertion, but psychologically it can still be extremely difficult. If we accept the sym- metry in this regard, and accept (as I have suggested we should) that diffi- culty acts as an excuse condition in duress cases — and that the difficulty cannot, in those cases change the obligation-status of actions — we may expect a parallel verdict in other motivational difficulty cases.
Unless some relevant disanalogy can be noted, or alternative arguments provided, I suggest that this treatment is appropriate in all cases where difficulty can alleviate blameworthiness. If this is correct, then though dif- ficulty can alleviate blameworthiness, it does not prevent difficult actions from being obligatory.
A supplementary argument for this conclusion may be made based on the phenomenology of blameworthiness for the blameworthy agent, and fe-
licitous responses for an excused agent. Consider an agent who has an obligation to φ, but something transpires that makes φ-ing significantly more difficult. Perhaps she had agreed to meet a friend, but her method of transport broke down and the additional difficulty this entails makes it not blameworthy to fail to φ.21 Now, we may imagine that the agent realises this about her situation — she knows that she would not be blameworthy if she does notφ. For an agent in this situation, it would be strange to count the fact that she would be ‘off the hook’ as an allowance to notφ. In order for the agent to not be blameworthy, it should be thedifficultythat explains the notφ-ing.
It would be infelicitous for the agent to count the reason that she could be excused as somehow in favour of not performing the required act. We might imagine an agent who has promised to meet a friend, but knows that if the weather is horrible enough, this would make motivating her action difficult enough that she would not be blameworthy for failing to do so. She stares out of the window while getting ready to leave, and when the rain picks up sufficiently says to herself with a smile “Oh good, the weather is horrible enough now, so I’m off the hook — I don’t have to go.” This somehow seems inappropriate. It would be much more appropriate for her to anxiously struggle over the decision, still perhaps feeling that sheshould
go, but not being able to bring herself to do it.
An agent with appropriate sentiments will also feel differently in the aftermath both of these cases. If, as Ross discusses, an agent who deems themselves justified in breaking a promise, while realising that the prima facie reason to keep the promise remains, may feel a compunction to make amends (2002, p.28). They will not however (or, it would not be appropriate to) feel the “shame or repentance” which accompanies a wrongdoing (even when not blameworthy).
If the arguments presented in this section are successful, we should reject the claim that the difficulty of an action that otherwise would be obligatory can render it non-obligatory, i.e. we should reject the Weak Difficulty Thesis.
21
Keeping costs fixed in this type of case will be difficult. Usually this sort of case will result in additional time, physical effort or money being expended. For the sake of the example, let us assume that costs are somehow fixed between the cases.
5.2.3 Resistance to Understanding Difficulty as Merely an