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Excuses, justifications and the normativity of expressive

behaviour

From Oxford Journal of Legal Studies, vol. 32 no. 3 (2012)

ABSTRACT

In this paper I look at the role of appeals to the emotions in criminal law defences. A position

commonly held is that appeals to the emotions can excuse but cannot justify. However, we should be

careful that this view does not rest on too simple and non-cognitive a view of the emotions. I contrast a

simple picture, according to which action from emotion involves loss of rational control, with the more

Aristotelian picture recently offered by R. A. Duff. I then look at John Gardner’s theory of excuses,

which seeks to avoid the non-cognitive account of action from emotion as loss of rational control, but

nevertheless denies that reference to the emotions can even partially justify. I argue that what is at issue

between Gardner and Duff is what Gardner calls the “no-difference” thesis, namely that the reasons

that count in favour of an emotion count also in favour of action done from that emotion. I conclude

that Gardner has not yet explained why we should reject the no-difference thesis.

1. Introduction: excuse, justification and appeals to emotion

At coffee break the news comes through at last – and it is good news. Jonathan ends

the call on his mobile phone and, turning to the person next to him – a fellow

conference delegate he has only met in the last ten minutes and with whom he has just

been discussing the likely existence of possible worlds – says, “Oh! I’m sorry – my

daughter’s been going through a cancer scare. We’ve just heard the results”, he

chokes slightly, “And she’s going to be OK!” His neighbour offers him a sympathetic

smile – “I’m so pleased to hear that” – and in response Jonathan, overcome with joy

and relief, puts out his arms and hugs her. She stiffens slightly, initially taken aback

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by this unexpected turn in their relationship, but then relaxes and pats him on the

back. She surmises that his daughter must have been really quite ill. “I’m very sorry,”

says Jonathan, breaking off and suddenly looking sheepish, “I don’t know what came

over me. I’ve been so worried about her; it’s just such a relief.”

This kind of example has the following structure. (1) Jonathan invades his

neighbour’s personal space in a way that would normally be impermissible (or at any

rate very poor manners). Normally such behaviour with a person with whom you have

only slight acquaintance would rightly be thought of as inappropriately forward,

perhaps even as unwanted bodily contact. Yet (2) there is clearly something we could

say in Jonathan’s defence: we would not criticise him as we would had he been guilty

of a straightforward disregard for personal space. Furthermore, (3) what could be said

in his defence involves an appeal to the emotions from which he acted.

We can imagine many situations that have this structure. Here is another possibility.

Angela, on her way home one night, is surprised by a figure looming out of the

darkness towards her, to all appearances launching an attack. Angela, seized by fear

for her life, lashes out at the perceived intruder, causing serious harm, but thereby

giving herself time to make her escape. As it turns out, however, the apparent

assailant was simply an innocent drunk unable to control the direction in which his

steps were taking him. We can see how, when appropriately filled out, this example

could have the same structure as Jonathan’s case. (1) Angela hurts or harms a person

in a way that would normally be impermissible. Yet (2) there is something to be said

in her defence, and (3) it involves a reference to the fear or anger from which she

acted.

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A case like Angela’s is normally thought of as one in which the emotion might, if

certain other conditions are met, serve as an excuse.1 For instance, in the criminal law

defence of duress, the defendant can be excused if she acts in such a way as a “sober

person of reasonable firmness”2 would have acted. The defendant’s will is said to

have been “overborne” by the nature of the circumstances. In other words, she was

presented with a difficult situation; although she acted wrongly, duress represents a

necessary “concession to human frailty” to mark the moral difference that her

situation and its attendant emotions makes. The provocation defence invokes similar

ideas: for this (partial) defence to be successful – in reducing to manslaughter a killing

that would otherwise have fitted the definition of murder – there must have been a

specific provoking incident that led to a “loss of self-control” due to strong emotion.3

Provocation and duress recognise that the defendant acted wrongly, but put the case

that the significance of the wrongdoing was altered by the defendant’s situation and

attendant emotions. However, there are two ways in which the criminal law

recognises such mitigating circumstances. To see these defences specifically as

excuses is to deny that they are justifications. The distinction between excuse and

justification is often illustrated by reference to Austin: “In the one defence

[justification], we accept responsibility but deny that it was bad: in the other [excuse],

1 See e.g. S. Uniacke, Permissible Killing: The Self-Defense Justification of Homicide (Cambridge:

Cambridge University Press, 1996), p. 13. Though for an argument that duress is at least sometimes a

justification rather than an excuse, see P. Westen and M Mangiafico, ‘The Criminal Defense of Duress:

A Justification, Not an Excuse—and Why it Matters’, Buffalo Criminal Law Review 6 (2003), p. 833. 2 Lord Lane CJ in Graham [1982], 1 All E.R. 801 at 806, quoted in A. Reed and B. Fitzpatrick,

Criminal Law 3rd

edition (London: Sweet and Maxwell, 2006), p. 244. 3 Thus stated, this gives the “subjective requirement” of the provocation defence. There is also an

objective requirement, namely “was the provocation enough to make a reasonable man do as the

defendant did”. See A. Ashworth, Principles of Criminal Law 3rd

ed. (Oxford: Oxford University Press,

1999), pp. 236-9 and 275-285; and J. Horder, Provocation and Responsibility (Oxford: Oxford

University Press, 1992).

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we admit that it was bad but don’t accept full, or even any, responsibility.”4 Now one

reason for denying that provocation and duress are justifications might be that the act

is still wrong: if the act is wrong, how can it be justified? But we can see that this is

not a good reason for treating these defences as excuses as long as we bear in mind

that the existence of justifying considerations for some act does not mean that that the

act was fully justified. Broadly speaking, we can capture the spirit of Austin’s

distinction by saying that a justification is a normative consideration (by which I

mean a consideration that counts, at least partially, in favour of an action) that lessens,

or perhaps cancels, the wrongness of the agent’s action, whereas an excuse is a

psychological consideration that lessens, or perhaps cancels, the agent’s responsibility

for acting wrongly. Normative considerations are usually considerations that are

relevant to an agent (say, someone in the defendant’s position) deliberating about

whether or not to act in a certain way. But many such considerations might have such

relevance, and hence alter the nature of the act, without fully justifying it. As long as

we bear in mind that justifications can be partial, we will not be tempted to think that

accepting a justification means agreeing that an act is fully justified.

So why would we deny that reference to the emotions can supply even a partial

justification? In this paper I seek to dispel two sources of scepticism about emotion

and justification. The first source of scepticism is that, insofar as these defences seek

to explain the defendant’s action by reference to strong emotion, they involve

essential reference to the agent’s psychological states rather than to justifying

considerations, and hence fit Austin’s excuse category rather than his justification

one. After all, someone might ask, how could the fact that the act was done from a

4 J. L. Austin, “A Plea for Excuses”, Proceedings of the Aristotelian Society 57 (1956/7), pp. 1-30.

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certain emotion have anything to do with whether the act was permissible? The

second source of scepticism is more subtle. It concerns what would follow from

allowing that reference to the emotions can partially justify. “When acts are only

partially justified by the emotions from which they are done,” it might be said, “It is

because those emotions, and the actions they prompt, are disproportionate to the

situation. However, if the emotions were proportionate, the acts would be justified.

Therefore if reference to the emotions can sometimes partially justify, it will follow

that reference to the emotions can sometimes give us a full justification of the action.”

My second source of scepticism rejects this conclusion: reference to the emotions, on

this view, could never figure irreducibly in a full justification of an action. However,

the consequence of this, according to this source of scepticism, is that we must deny

that emotions can figure irreducibly even in a partial justification. Thus: a) if

emotions can partially justify then, in certain circumstances, they can fully justify; b)

emotions cannot fully justify; c) therefore emotions cannot partially justify.

Now this second source of scepticism may look conclusive. On the other hand, look

again at the case of Jonathan. Can’t we imagine a scenario in which his relationship

with his daughter was so close, and the threat to her life was so great, that he no

longer merits criticism at all for his behaviour? Wouldn’t we have to have rather a

buttoned-up view of personal space to rule that out altogether? If you agree with that,

now consider whether in such a situation you want to say that his act was still wrong,

albeit that he was blameless (because fully excused) in performing it. Or could it be

that the act no longer merits criticism because its agent has a kind of justification? In

particular, consider the fact that in such a case we might want to say that his emotion

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was quite appropriate, proportionate or reasonable and it is this fact that makes the

action that the emotion brings about a fully justified one.5

Given these considerations, I will argue, there is a debate between those who see

reference to the emotions as referring to psychological states that excuse but cannot

justify, and those who see reference to emotions as sometimes partially, and

sometimes wholly, justifying. I set this debate up by contrasting a simple picture of

action from emotion as loss of rational control with the more Aristotelian picture

recently offered by R. A. Duff. I then look at John Gardner’s theory of excuses, which

seeks to avoid the non-cognitive account of action from emotion as loss of rational

control, but nevertheless denies that reference to the emotions can even partially

justify. I argue that what is at issue between Gardner and Duff is what Gardner calls

the “no-difference” thesis, namely that the reasons that count in favour of an emotion

count also in favour of action done from that emotion. And I conclude that Gardner

has not yet explained why we should reject the no-difference thesis.

2. “Loss of rational control” through strong emotion

The defences of provocation and duress seem to rest on a shared picture. Human

beings are rational and responsible, capable of rule-governed behaviour, but also have

emotions – and emotions are inherently hard to govern. They have a tendency to spill

over, overwhelming our will, and sometimes making it impossible for us to exercise

5 This justification of action through proportionate emotion is one way to interpret Aristotle’s doctrine

of the mean: “We can be afraid, e.g., or be confident, or have appetites, or get angry, or feel pity, in

general have pleasure or pain, both too much and too little, and in both ways not well; but [having these

feelings] at the right times, about the right things; towards the right people, for the right end, and in the

right way, is the intermediate and best condition, and this is proper to virtue.” Aristotle, Nicomachean

Ethics, trans. T. H. Irwin (Indianapolis: Hackett, 1985), 1106b18-23. See especially the interpretation

put forward in J. O. Urmson, “Aristotle’s Doctrine of the Mean” in A. O. Rorty (ed.), Essays on

Aristotle’s Ethics (Berkeley: University of California Press, 1980), pp. 157-170.

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rational control over our actions. Therefore while in general it is quite fair and

reasonable to expect us to act in such ways as are (or as the criminal law recognises to

be) justified, it must also be recognised that a) there is another side to us, a side that

sometimes makes it hard to be guided by what is justified, and b) that we can control

that emotional side only imperfectly. Morality and the law quite properly recognise an

important difference between someone who acts wrongly because of a genuine

disregard for the relevant justifications, and someone who acts wrongly out of strong

emotion.

One way of understanding these defences would take a strictly non-cognitive view of

the emotions: seeing emotions as strong psychological forces that it is the job of

reason or will to control. The defence arises, on this view, because in some

circumstances self-control is too much to ask. The person of reasonable firmness can

be expected to keep his emotions in check to some degree, but certain circumstances

cause emotion to be too strong for even the reasonably strong-willed person to be able

to act as he would, in his clear-thinking moments, see fit. There are a number of

problems with this interpretation, however, stemming from the fact that the emotions

are seen purely mechanistically, as non-rational psychological forces rather than at

least partly cognitive states.6 For instance, the “reasonableness” condition, on this

interpretation, could be applied only to our ability to control our emotions. Crucially,

it could not be applied to the emotions themselves. Indeed this might suggest that

there is no real reasonableness condition: after all, that condition is meant to be

intersubjectively valid, and couldn’t reasonable self-control vary widely between

6 M. Nussbaum and D. Kahan, “Two Concepts of Emotion in the Criminal Law”, Columbia Law

Review 96 (1996), pp. 269-374. For a related analysis, see A. Von Hirsch and N. Jareborg,

“Provocation and Culpability” in F. Schoeman (ed.), Responsibility, Character and the Emotions

(Cambridge: Cambridge University Press, 1987), pp. 241-255.

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individuals – given their psychological differences?7 Furthermore, strong emotion that

“overburdens the will” appears on this view to be like the onset of some pathological

condition: an extreme phobia or temporary insanity. That suggests that this

interpretation views provocation and duress as structurally analogous to defences of

diminished responsibility or temporary insanity.

John Gardner has drawn attention to the important difference between the provocation

and diminished responsibility defences.8 Gardner is interested in a series of criminal

cases in which women killed husbands or partners who had subjected them to serious

and prolonged abuse. As Gardner sees it, these women had a choice of two defences:

provocation; or some form of diminished responsibility. The defence of diminished

responsibility was in some ways a safer bet, since it presents the attack (as on the

mechanical conception of strong emotion) as the product of a loss of rational control

and doesn’t have to meet an objective reasonableness condition. Against the

interpretation we looked at in the previous paragraph, Gardner thinks that provocation

is fundamentally different, and more difficult to establish. In order successfully to

plead provocation “one needs to argue that getting angry to a murderous extent was

reasonable.”9 However, many of the women opted not to plead diminished

7 As Marcia Baron points out, excuses can be loosely divided into two categories: those, such as duress

and provocation, that come into play because the situation is such that it would be extremely difficult

for an agent to avoid acting wrongly; and those, such as the insanity defence, that come into play

because of some peculiarity about the agent that makes it extremely difficult for her to avoid acting

wrongly. The interpretation we are considering might be thought to collapse this distinction. See M.

Baron, “Killing in the Heat of Passion” in Calhoun (ed.), Setting the Moral Compass (Oxford: Oxford

University Press, 2004), p. 356. 8 J. Gardner, “The Mark of Responsibility” in his Offences and Defences: Selected Essays in the

Criminal Law, p. 181 (originally published in Oxford Journal of Legal Studies 23 (2007)). See also e.g.

J. Dressler, “Provocation: Partial Justification or Partial Excuse?” Modern Law Review 51 (1988), pp.

467-480. 9 J. Gardner, “The Mark of Responsibility”, p. 181

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responsibility, and rather chose to argue that they were reasonably provoked.10

What

explains their decision? Gardner nicely presents the principle behind this choice:

“By making use of the provocation defence … she defends herself against the

… charge with her head held high as a rational being. She relies not simply on

her disturbed emotional condition, but on the rational defensibility of her

disturbed emotional condition. There were reasons for her to get angry or

aggrieved to a murderous extent, and she got angry or aggrieved for those

reasons, and as a rational being she wants the law to recognise this rational

explanation. She doesn’t want to be dismissed as someone who can’t explain

herself rationally, someone whose responsibility, and hence whose

participation in the human good, was diminished. She wants to give an

account of herself as a fully responsible, adult, sane, human being.”11

When someone pleads provocation, Gardner claims, she is not pleading that at the

time she was incapable of responding to reasons. Rather she is mounting the defence

that the emotion from which she acted did have (good or reasonable) grounds and she

wants that fact recognised and recorded. As I have suggested with the example that

opens this paper, we are familiar with many such situations, not just the life-and-death

cases dealt with by the criminal law.

In contrast to the mechanistic conception of the emotions, Gardner’s view appeals to a

view of emotions as at least partly cognitive states. And as such, it appears to give us

an answer to the first source of scepticism about treating reference to the emotions as

10

See also J. Dressler, “Battered Women and Sleeping Abusers”, Ohio State Journal of Criminal Law

3 (2005-6), pp. 457-472. 11

J. Gardner, “The Mark of Responsibility”, p. 181.

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a justification rather than an excuse. An excuse, we said, according to Austin’s

picture, explains an agent’s action by reference to some psychological state. And the

first source of scepticism was founded on the concern that appeal to the emotions

involves essential reference to psychological states, and hence would only excuse

rather than justify. Now, however, we can see that we need to distinguish between

two types of mental states: those – like most of our fears, hopes and desires – that are,

at least in principle, guided by reasons (that is, guided by normative

reasons/justifications/considerations-that-count-in-favour-of) – and hence are what T.

M. Scanlon has called “judgement-sensitive attitudes”; and those, like phobias, that

are not.12

Mental states like fear and anger seem to be, at least very often, guided by

considerations that count in favour of those states: in short, guided by the fact that

there is something to be fearful or angry about. That is what the defendants that

Gardner has in mind wish to take a stand on. These states are judgement-sensitive

because when a person is shown that there is really nothing to be angry about, the fear

and anger typically abate. Phobias, on the other hand, do not respond to grounds in

this way. Convincing someone that there is nothing to fear from the spider does not,

in a case of pathological phobia, do anything to shift the fear. Provocation is a defence

in which the defendant claims to have responded as a rational being with something to

be fearful or angry about, rather than someone whose capacities to respond to reasons

were impaired or diminished.

This distinction has an important consequence for our discussion. For when an action

is explained by reference to a judgement-sensitive attitude, it seems that the

explanation need not be incompatible with the action being at least partly justified.

12

For this distinction, see Scanlon, What We Owe to One Another (Cambridge, Mass.: Belknap Press,

1999), pp. 18-22.

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For instance, say one runs away out of fear. Here one explains the action by reference

to an emotional state. But the explanation as it were looks through that mental state to

the justifications by which the agent’s mental states were themselves guided: that is,

to what the fear was about, to what provoked the fear, and whether the provoking was

justifiable. And that means that the mere fact that mental states are mentioned in an

explanation of action does not by itself show that they figure as an excuse. Reference

to mental states figures in a particular way in excuses: acknowledging that there is a

shortfall in the justification of the behaviour; but pointing out some relevant

circumstance, such as an incapacitating mental episode, that reduced the agent’s

responsibility for being guided by such justifying considerations. When the mental

state is at least partly justifiable, on the other hand, it now looks as though reference

to the emotions cannot simply excuse. Provocation does have a “subjective element”

to do with incapacitating loss of control;13

but it appears also to have a justificatory

element to it. And the justificatory element seems not to be incompatible with the

explanation of behaviour (as rational behaviour) by reference to emotion. This, then,

is why the first source of scepticism about emotions as justifications is unwarranted:

as Gardner says, in order to explain why at least some episodes of emotion are not

simply rational aberrations like phobias, we must accept that emotions can themselves

be rationally defensible. But accepting that emotions are rationally defensible seems

to put them, and the actions associated with them, in the realm of justification.

3. Gardner on provocation and duress as excuses

Understood in this way, Gardner’s claim that an emotion figures in a defence like

provocation only when “rationally defensible” seems to suggest that these defences

13

On this, see R. Holton and S. Shute, “Self-Control in the Modern Provocation Defence”, Oxford

Journal of Legal Studies 27 (2007), pp. 49-73.

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should be understood as partial justifications rather than excuses. If I act from a

rationally defensible emotion, it seems that my action could thereby be, not merely

excused, but (at least partly) justified by the considerations that count in favour of the

emotion. For instance, in a recent paper, R. A. Duff argues that, for an emotion to

serve in a defence such as provocation or duress, it would have to be a good and

appropriate emotion that – in some way understandably – got out of proportion given

the strains of the situation.14

Duff’s view appears to see these defences as partial

justifications rather than as excuses (or at any rate as having a strong justificatory

element). However, a question that could be raised about Duff’s view is that it would

seem to have the implication that motivated our second source of scepticism: that

action done out of emotion that is in proportion has at least a claim to be fully

justified. If action from emotion can be partially justified when done from

disproportionate emotion; and if the reason that it is only partially justified is that the

emotion prompting the action was disproportionate; then, it seems to follow, the act

would be justified if the emotion had been proportionate. But this seems to imply that

the full justification of some actions lies in their being done from proportionate

emotion. Or at any rate, Duff’s view raises an interesting question about how the

justification we attribute to an action in saying that it was a proportionate expression

of (appropriate) emotion relates to the other ways in which we might seek to justify it.

We will say more about the content of this implication later on.

In contrast to Duff, however, Gardner himself claims that these defences are only

excuses. Gardner’s view, of course, is not the simple view that he argues against, that

emotions remove our responsibility by removing our capacity for responding to

14

R.A. Duff, “The Virtues and Vices of Virtue Jurisprudence” in T. Chappell (ed.), Values and Virtues:

Aristotelianism in Contemporary Ethics (Oxford: Oxford University Press, 2007), pp. 90-104.

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justifications. Indeed Gardner takes issue with the Austinian claim that excuses work

by pointing to factors that remove responsibility.15

On his view, both justification and

excuse appeal to distinctively rational considerations. Reference to incapacity, on his

view, is therefore neither justification nor excuse, but requires some other category.16

An excusatory explanation, on his view, falls short of justification because it does not

point to reasons that speak in favour of the action, but instead:

“relies on reasons the agent had for thinking that she had reasons to do as she

did, or reasons she had for being inclined or inspired or driven (etc.) to do as

she did. Excuses point to features of one’s situation that do not militate in

favour of the action one took, but nevertheless do militate in favour of the

beliefs or emotions or attitudes (etc.) on the strength of which one took that

action.”17

Now this claim draws attention to two quite different things that might be going on in

an excuse, neither of which is included in the Austinian category of excuses as

explaining incapacity to respond to reasons. One is that excuses sometimes employ a

distinction between what the agent actually had reason to do, and what she reasonably

or with warrant thought that she had reason to do. For instance, if reasonable

ignorance is an excuse then it is this sort of excuse, one that turns on the agent’s

limited, partial but perhaps warranted perspective. However, Gardner also wants to

include in the category of excuse cases in which an agent actually had no reason to do

as she did but where she had reason e.g. to feel driven to do as she did. This category

of excuse does not, like the first one, rely straightforwardly on the difference between

15

J. Gardner, “In Defence of Defences” in his Offences and Defences, pp. 77-89. 16

J. Gardner, “In Defence of Defences”, pp. 88-9. 17

J. Gardner, “In Defence of Defences” in his Offences and Defences, pp. 77-89, at p. 86.

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the agent’s partial tttperspective and what is actually the case. Rather it relies on a

difference between types of reasons. And it is this claim that is at the heart of

Gardner’s unwillingness to allow that emotions can figure even in partial

justifications. In Gardner’s view, there are reasons for emotions, and so emotions can

be rationally defensible. However, those reasons are not justifications of the sort with

which the criminal law deals, since reasons for emotion cannot count as reasons for

action.

Gardner’s distinction between types of reason is central to the argument we have been

pursuing. The motivation for our second source of scepticism was that, if we allow

that reference to emotions might figure as a partial justification, we would be

compelled to allow that reference to emotions might also figure as a full justification;

and that since (one might think) that implication is untenable, one ought to deny that

emotions can figure even in partial justifications. This claim came under pressure

because we need to invoke the reason-guidedness of emotion in order to explain the

difference between emotion and phobia. But Gardner now offers us a way out. He

shows how we might deny that the justification of actions could derive from the

justifiability of the emotions from which those actions are performed; deny, that is,

that there is any transfer of normative force from emotion to actions done out of

emotion. Because nothing that counts in favour of an emotion thereby counts in

favour of action done out of that emotion, appeal to emotion can only ever excuse; it

cannot justify, partially or fully.

4. Gardner on emotions, reasons and excuses

In a recent paper, Gardner claims that:

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“We can find logical space for excuses that answer to reason, that require

reasonableness on the part of the agent, without collapsing excuses into

justifications. It is true that when we claim an excuse for what we did, we also

claim to have been justified. But we do not claim to have been justified in

what we did. On the contrary, we concede that we were unjustified in what we

did. We claim to have been justified in something else. In the case of

emotional excuses, we claim to have been justified in our emotions. The action

is excused because the emotion in the thrall of which we acted is justified, or,

to put the same point in terms of reasonableness, it was an unreasonable action

in the grip of a reasonable emotion. It was an excessive retaliation, for

example, in reasonable fury at continual belittling. It was a premature strike in

reasonable terror of impending attack. This is not to be confused with the idea

that excuses are somehow partial or incomplete justifications. A wrong is part-

justified only if there are reasons, albeit not sufficient reasons, for its

commission. Yet a wrong may be fully excused, on the view being advanced

here, even though there was no reason at all to commit it. What count under

the excuse heading are not the reasons in favour of our action but the reasons

in favour of our being in the condition in which we were driven to perform

that action, the reasons in favour, for example, of our being as despairing or as

grief-stricken as we were.”18

In other words, Gardner accepts that an emotion can be justified qua emotion. It can

be an appropriate response to the reasons that bear on the subject in that situation. He

18

J. Gardner, “The Logic of Excuses and the Rationality of Emotions”, Journal of Value Inquiry 43

(2009), 315-338, at p. 317.

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also accepts that when we are “in the grip of” or “in the thrall of” an emotion then the

emotion is instrumental in making us act as we do. But when we give an excuse we

are pleading that ours was an “unreasonable action in the grip of a reasonable

emotion.” However, Gardner’s position in this passage is ambiguous between the

view we attributed to Duff and the view we said was distinctively his own. On the one

hand, he suggests that the reason that these actions from emotion cannot be justified is

that the emotional response is excessive. The problem with this interpretation (for

Gardner) can be seen if we ask how things would stand if the emotion was not

excessive … wouldn’t the act then be justified? On the other hand, Gardner clearly

has in mind a more radical break between reasons for emotion and reasons for action,

a break that he argues for in the rest of the paper. He denies that the reasons we have

for the emotion thereby give us any justification to act in those ways prompted by the

emotion.

Gardner acknowledges that there are reasons for emotion, but such reasons “do not

militate in favour of or against action.”19

So what does he take reasons for emotion to

be? Gardner notes that one measure of adequacy or appropriateness in emotion is that

it should bear some relation to how things actually are – as when we are sad when

things are going badly, and happy when they are going well. He calls these tracker

reasons. What Gardner has in mind is that, for e.g. fear to be supported by reasons, a)

there must be something that the fear is about, and b) the fear cannot be about just

anything, but has to be about something that merits that response. Therefore when I

experience fear (assuming my fear presents itself as guided by reasons, rather than

merely phobic) my fear can be understood as claiming that there is something in the

19

Gardner, “Logic of Excuses”, p. 332.

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situation that merits that response; and as with any other claim, my fear can be judged

adequate insofar as it represents the situation correctly.

Gardner’s line of thought draws on de Sousa’s idea that each emotion has a formal

object at which the emotion “aims” (as truth is the object at which belief aims), and

which therefore provide internal success-conditions for the state.20

Thus fear aims at

the fearful in the sense that it presents itself as a proper response to that something is

fearful. But because only certain things can intelligibly count as fearful, the emotion

is accountable to a standard of genuine fearfulness. In that sense, fear aims at the

fearful. Similarly, shame aims at the shameful; joy at the joyful, etc: as a general

schema, emotion X aims at the X-worthy. When an emotion fully reflects the relevant

tracker reasons then it can be fully reasonable.

However, there is a crucial difference, on Gardner’s view, between the reasonableness

of fear and the reasonableness or justifiability of fear behaviour.

“A’s conformity or nonconformity with emotional tracker reasons, we are

arguing, can bear on the reasonableness of A’s emotions; the reasonableness

of A’s emotions can bear, in turn, on the excusability of A’s unreasonable

actions on the strength of those emotions; and the excusability of A’s

unreasonable actions can bear, of course, on what ought to be done to or by A

in response to those actions ... But these are not cases in which emotional

tracker reasons qualify as a reason for or against actions.”21

20

R. de Sousa, “The Rationality of Emotion” in A. O. Rorty (ed.), Explaining Emotions (Berkeley:

University of California Press, 1980). 21

Gardner, “Logic of Excuses”, p. 332.

18

Although there can be normative considerations that count in favour or against an

emotion, and the reasonableness of an emotion can help excuse action done from that

emotion, the fact that the emotion is responsive to such reasons is not by itself enough

to show that the action is justified. Gardner takes this position because he believes

that the only reasons that count in favour of action are what he calls service reasons.

Service reasons are “reasons to adapt the way things are … in the service of value.”22

In other words, what justifies action is not the emotion from which it was performed,

or the feature of the situation that called for that emotion, but rather the good that it

brings about (or constitutes). Actions are justified, not virtue of the justifiability of the

emotions they express, but only insofar as they bring the world closer to the way it

ought to be. As a result, there is scope for the view that excuses recognise the

reasonableness of emotions without treating such reasonableness as in any way

counting in favour of the action performed for that reason. We can excuse action from

emotion but not justify it.

We can now isolate the claim underlying Gardner’s denial that reference to the

emotions can figure in justifications. This claim is a version of the second source of

scepticism with which we began. If emotions were to figure in justifications then it

would have to be the case that the consideration that justifies the emotion is the same

consideration that justifies the action. Gardner denies that emotions can ever figure in

this way in justifications because he denies that reasons for emotion can ever be

reasons for action. He can make this claim a priori – without looking in each case at

the strength of the reasons for emotion – because he thinks that the only reasons there

can be to act one way rather than another are service reasons.

22

Gardner, “Logic of Excuses”, p. 328.

19

5. The “no-difference” thesis

Gardner’s position places a lot of weight on the distinction between emotion being

justified and action from emotion being justified, a distinction supported by the

further distinction between tracker and service reasons. Can the distinction bear the

weight? There are two related concerns one might have. The first, which Gardner

addresses explicitly, concerns how an emotion could be reasonable if the act to which

it leads is unjustified. If the act is unjustified, doesn’t that imply that the emotion is

also? The second, which I am more interested in here, puts the issue the other way

around, and asks whether the reasons that speak in favour of emotion can never speak

in favour of the action itself. Both of these concerns rest on what Gardner calls the

“no-difference” thesis, a thesis he states in two subtly different ways.23

First of all, he

says that the no-difference thesis is that “a reasonable and hence justified emotion is

simply an emotion that motivates a reasonable and hence justified action.” Secondly,

he says that the thesis is that “any reason that there may be in favour of or against any

emotion also favours, or disfavours, to the same extent, the very action that the

emotion motivates one to perform.” The difference between these two ways of putting

the thesis is important because of the different direction in which each claims the

normative force to be transferred: the first takes service reasons to be basic, and says

that the normative status of emotions derives from the normative status of the actions

(determined by service reasons); whereas the second takes tracker reasons to be basic,

and says that the normative status of acts done from emotion derives from the

23

Gardner, “Logic of Excuses”, p.

20

normative status of the emotion – so that if the emotion is reasonable (and justified)

then the action will also thereby be justified.24

Gardner seems to feel the pressure of the first interpretation more than the second, and

most of his arguments are directed at vindicating the idea of reasonable emotion to

someone who thinks that reasons for action are always only reasons to bring about

good. However, if the second version of the thesis could be defended, it would give us

a way of saving the view that reference to the emotions can figure as a justification.

Reference to reasonable emotion would figure as a justification because, according to

this version of the no-difference thesis, the considerations that justify the emotional

response would also justify action from that response. Hence the status of this version

of the no-difference thesis is central to assessing the relative plausibility of Gardner’s

position and its rival.

Gardner does consider the alternative provided by the second interpretation of the no-

difference thesis. He asks “whether the tracker reasons that help to make [A’s]

emotions reasonable can themselves contribute to making [A’s] actions motivated by

and manifesting those emotions similarly reasonable, such that he does not need an

excuse for those actions.”25

And one of the possible answers he considers is that there

could be “tracker reasons . . . for and against actions [which] would [involve] a kind

24

The no-difference thesis is therefore closely related to what John Skorupski calls the Bridge Principle

(in earlier works, the Feeling/Disposition Principle): “If there’s reason to feel Φ, there’s reason to do

that which Φ characteristically disposes to.” See J. Skorupski, The Domain of Reasons (Oxford: Oxford

University Press, 2011); and “Propositions about Reasons”, European Journal of Philosophy 14

(2006), pp. 26-48. 25

Gardner, “Logic of Excuses”, p. 332

21

of practical fittingness, a way in which actions could be apt to an occasion

independently of their value.”26

To illustrate the possibility, consider that I have just published an article in a good

journal, and am justifiably proud of my achievement. I am strolling around the

department beaming, bursting (as we say) with excitement, and generally dispensing

good will on all those who come into contact with me. According to the no-difference

thesis, my actions are, not simply reasonable, but justified. I have, not just a reason

for such behaviour, but (potentially) a good reason (that is, if one agrees that this is an

appropriate thing to feel proud of, and an appropriate way to behave when proud).

The good reason that I have for behaving in that way is precisely the same reason I

have for being proud of my achievement. Similarly, if I have acted wrongfully, and

am troubled by guilt and remorse, I will have the same reason to apologise or make

amends for what I have done as I have to feel guilty or remorseful (at least insofar as

my guilt and remorse are justified and apologising and making amends are the sorts of

actions to which these emotions appropriately lead). Here the acts in question (acts

that, we might say, give expression to their emotions) are fitting, not because of the

contribution they make to value, but because they are responses that track, fit or do

justice to the significance of the situation. In other words, the reasons I have for acting

in these ways derive, not from the fact that the world ought to contain such

expressions of emotion (that the world has more of value in it when it contains such

things), and hence my so acting brings the world closer to how it ought to be (service

reasons), but rather that acting in those way is constitutive of my properly recognising

the significance of the situation I am in.

26

Gardner, “Logic of Excuses”, p. 332

22

Before we look at the plausibility of the no-difference thesis as compared to

Gardner’s view, we need to make three clarifications about the nature of that thesis.

First of all, on any plausible view of it, the no-difference thesis needs to be qualified

to acknowledge that, if there are tracker reasons for action, they won’t be the only

such reasons, and hence the presence of good tracker reasons will not guarantee the

all-things-considered justifiability of the action. This means that, even if not

disproportionate, action from emotion may fail to be all-things-considered justified

because of countervailing considerations. Action from emotion might fail to be

justified because, although in the absence of certain other considerations, such action

would have been justified (and hence it is pro tanto justified), in this particular

situation there are those competing considerations in play that affect the

permissibility of acting in that way. (A simple example of such a case would be a

situation in which an all-powerful evil demon had threatened the country with terrible

consequences should anyone act from the emotion in question. Say the emotion, and

hence the action from emotion, is supported by tracker reasons: such action would

therefore be pro tanto appropriate and justified; but all-things-considered it would be

a terrible mistake.) Nevertheless, in some situations defeasible reasons are not

defeated. Therefore the distinctive claim made by the no-difference thesis, which

Gardner cannot accept, is that in some situations, tracker reasons for emotions would

provide all-things-considered justification for actions from those emotions.

Secondly, if reasons for emotion are to give us reasons for action, as the no-difference

thesis claims, they cannot be reasons for just any action, but only for those actions

that are appropriately prompted by that emotion, or appropriately express that

23

emotion. Hence there is a normative question, not just about the emotions one

experiences in a particular situation, but about the ways in which one expresses those

emotions. Just as we are guided by tracker reasons when responding emotionally to

situations, so it seems a corollary of the no-difference thesis is that we are guided by

reasons when giving expression to our emotions. Indeed, if emotions can be based on

knowledge or belief, it is a matter of practical thought how to “translate that

knowledge into action”27

in such a way that it captures the significance of the

situation. If there are more or less adequate ways of translating one’s understanding of

one’s situation into action then there will be considerations that count in favour of

some ways of doing do and against others. Some modes of expression can be

disproportionate. Some can fail to do justice to the gravity of the situation. The

reasons for action postulated by the no-difference thesis would be reasons to do with

finding a fitting or adequate emotional-and-expressive response.

Thirdly, the question of what an appropriate expression of emotion is will depend

heavily on the details of the particular situation and context. We can say some abstract

things about what e.g. expressions of pride have to be like in order to count as pride at

all – that they tend to be “up” rather than “down”, perhaps, or that they are linked

with optimism and looking at things on the bright side – but questions about degree or

proportion of pride, and about how precisely to translate one’s pride into behaviour

are issues of practical intelligence that demands sensitivity to the field of competing

considerations in which one acts. Our question when we engage in expressive

behaviour is how to do justice to the core feature that gives significance to our

situation (say, the article in the top journal) while at the same time finding a mode of

27

See von Hirsch and Jareborg, “Provocation and Culpability”, pp. 250-1.

24

expression that accommodates the situation’s other evaluative features (say, the

feelings of one’s not-so-lucky colleagues).

6. The service reasons thesis vs. the no-difference thesis

Now that we have some idea of what the alternative to Gardner’s view would be, we

can now ask which is more plausible. My main concern is that Gardner cannot

entirely reject the normativity of expressive behaviour – as postulated by the no-

difference thesis – if his own view of excuses is to be plausible. However, if he

accepts that expressive behaviour is governed by sui generis normative standards then

that undermines his claim that all practical reasons are service reasons. To see this,

consider the relation between emotion and the behaviour with which it is associated.

There seem to be two broad possibilities. The no-difference thesis says that reasons

for emotion also support the actions that “the emotion motivates one to perform”. We

could read the “motivating” relation in a causal way, as saying that the emotion

commonly, or typically, causes such behaviour. Or it could be read in a normative

way, as saying something like: the behaviour fittingly expresses such an emotion. In

other words, on the first possibility, an emotion and its associated behaviour might be

only externally or contingently linked, where the one just happens, as the world has

turned out, to cause the other. (Perhaps it might have been different – perhaps joy

might have brought about the behaviour we associate with shame. Perhaps, for some

unusual people, that is just what happens, and their joy does make them behave in

unusual ways, and it is still joy). Or, on the other hand, according to the second

possibility, it might be said that the relation between the emotion and the behaviour is

not simply contingent. Rather there is some criterion of adequacy: certain sorts of

behaviour will fail to “do justice to” or to “satisfy” the emotion.

25

Now if emotions are to excuse in the way Gardner wants, we have to be able to judge,

not just that the emotion is reasonable, but that the behaviour is reasonable given the

emotion, or given those particular grounds for the emotion. And hence Gardner would

be committed to the thought that some behaviour is such as fittingly to express the

appropriate emotional reaction to a situation. This might seem to put him quite close

to accepting the no-difference thesis. Consider, for instance, a case in which someone

pleads provocation, but where she killed her victim by slowly torturing him over a

matter of days. It is pointed out to her that the defence of provocation requires that the

killing was caused by “red mist” anger. But she insists that red mist anger did cause

her to torture her victim to death over a matter of days. How do we decide whether

her defence is plausible? On the interpretation that claims that there is only a causal

connection between anger and its characteristic actions, there is at least a slim

physical possibility that what she says might be true: we would have to carry out an

empirical investigation to decide whether it was. On the normative interpretation,

however, what we are rather asked to decide is whether this could intelligibly be an

expression of her anger, whether someone who had such grounds for anger as she had

would have been at least partly reasonable in translating it into the actions she did.

Now I take it that what we do in deciding on the adequacy of excuses involves the

latter type of inquiry. All in all, the merely causal connection between emotion and

behaviour sounds too much like the mechanistic conception of the emotions to be

what Gardner means to suggest. Therefore, we should conclude that there is (and that

Gardner accepts) a normative relation between emotion and its expression in

behaviour.

26

However, if Gardner accepts that there are standards of intelligibility regarding

expression of emotion then he has also to accept that there are some sui generis

rational standards governing action from emotion. For in thinking about the

intelligibility of behaviour from emotion we are already in the realm of reasons and

meanings. The question of the intelligibility of counting some behaviour as e.g. an

angry response is not the question whether a certain mental state causes such a

response but rather whether such behaviour could have that meaning. And once we

allow that action from emotion can have meaning then we have acknowledged that

there are some standards concerning how to give behaviour meaning, how to make it

adequate, and we can begin to ask whether a particular episode of e.g. angry

behaviour has the meaning that it ought to have (given the situation). Once talk of

intelligibility has been allowed, it seems to follow that there are considerations that

count in favour of some behavioural responses rather than others – considerations that

do not concern how much good would be brought about by so acting but are rather sui

generis reasons to do with the fitness of the act to the emotion (or with how to give

one’s act the right meaning given the cause (i.e. ground) of one’s anger).

Gardner’s view, therefore, has to be that, when someone acts out of anger, she is not

simply so impelled by psychological forces; rather her response is in some way

mediated by her understanding. She is responding to a field of meanings, meanings of

possible forms of behaviour that are the object of interpretation and construal.

Expressive behaviour is not simply forced on us (or forced out of us); rather it is an

intelligent response to one’s situation, the kind of thing that often we do not pause to

deliberate about, but which we could do. We do not simply manifest our emotions as

symptoms of underlying mental states; rather we can think about how to give

27

expression to our emotion (or how to capture the significance of the thing the emotion

is about).

If that seems plausible then Gardner has to accept that there are not just tracker

reasons to do with the fitness of an emotion to its object, but also expressive reasons

concerning the meaningfulness of the behaviour given the emotion and its object.

Expressive reasons are the reasons that guide us in finding appropriate forms of

expression for our emotions. However, expressive reasons are clearly considerations

to do with action. Indeed, they seem in some sense to count in favour of some actions

rather than others. In that case they seem at least related to reasons for action. If

Gardner is committed to that then it puts pressure on his thesis that service reasons are

the only reasons for action. Why does he think that expressive considerations cannot

in principle serve as justifications, as the service reasons thesis implies?

Indeed, the service reasons thesis itself needs further spelling out. For instance,

Gardner clearly thinks that the service reasons thesis rules out the possibility of

reasons for emotions (and hence reasonable emotions) serving as justifications. But it

is not altogether clear that I am not “adapting the world in the service of value” when

I give expression to my emotions: for instance, when I attempt to do justice to what I

have done by issuing an apology, or respond to my success by walking proudly. In

some sense, my response is in line with what the relevant evaluative considerations in

those situations require. If Gardner thinks that these cases do not give us reasons for

action then he must be working with a particular interpretation of “serving value.”

28

The service reasons thesis might result in Gardner’s conclusion if we took it as

shorthand for the view that a) the ultimate bearers of value are states of affairs, and b)

our reasons for action have to do exclusively with bringing such states of affairs

about. Actions, on this interpretation, could derive value either as means to bringing

about such valuable states of affairs or as partly constituting such valuable states of

affairs. If our reasons for action derive their force from the value of the states of

affairs to which those actions contribute then perhaps there would be no room for the

no-difference thesis’s claim that some of our reasons for action derive from the

fittingness of those actions to their situations. This interpretation is suggested by

Gardner’s description of the notion of practical fittingness as “a way in which actions

could be apt to an occasion independently of their value” (my italics). At any rate, if

the service reasons thesis did turn out to be compatible with that thought then it would

start to become unclear whether there really was a distinction between tracker and

service reasons in the first place.

However, if this interpretation does capture his argument then Gardner needs to

explain why the service reasons thesis is plausible and why it is incompatible with the

practical fittingness view and the corollary that reasons for emotions might justify.

The basic problem is that expressions of emotion do sometimes seem to be

appropriately – fittingly – related to value, and we seem to have reasons to experience

such emotions and express them in those ways because of that relation to value. If

Gardner denies this then he needs to develop the service reasons thesis in order to

give us good reasons to explain away the appearance. However, if he endorses this

appearance and accepts that relating appropriately to value can mean serving value

29

then he needs to show why it does not follow that reasons for emotion can be

justifications rather than excuses.

7. Conclusion

We can summarise the position developed in this paper by returning to Jonathan.

Jonathan’s act was unjustified: strictly speaking, it was wrong, or at any rate poor

manners. But we are inclined to think that his motivation affects the extent to which

we should criticise him. I have been considering the view that this is not because his

emotion gives us grounds to excuse him, but because his emotion, though it falls short

of full justification, is at least in the realm of justification. His concern for his

daughter is the kind of thing that is, or at any rate can be, an important part of a good

human life. His action of hugging his neighbour is the sort of thing that properly

expresses such joy or relief (though there might have been others, such as dancing her

around the room). What went wrong was that the emotion became disproportionate

and led him to ignore some important personal boundaries. The failure in justification

of the emotion (its disproportionality) led to a failure in justification of his action. In

this situation it is understandable that it did become disproportionate: that is why it

can be partially justified.28

This view raises the possibility that we could fill out the details of Jonathan’s situation

in such a way as it looks as though his behaviour is quite proportionate to his

situation. In this case, it would seem that the action could be justified, and justified in

the currency of appropriate emotion: there is no need for another type of reason, a

28

Cf. Duff, “The Virtues and Vices of Virtue Jurisprudence”.

30

service reason, to give us a reason to act.29

Thus, the view that emotion can serve as a

partial justification – not a full justification because the emotion was out of proportion

– leads to the second version of what Gardner calls the no-difference thesis: that the

reasons that justify an emotion can thereby justify action from that emotion. From the

start of the paper, I marked the no-difference thesis out as an important source of

scepticism about the notion that emotions might figure in justifications. But we have

not found persuasive grounds to think that such scepticism is justified. Gardner rejects

the no-difference thesis on the grounds that the only reasons for action are service

reasons. Although I have not attempted to refute the service reasons thesis, I have

argued that more work would need to be done in order to make it plausible and show

that it rules out the possibility that emotions could serve as justifications.

29

Could it be that the emotion itself is fully proportionate, but that the action it motivates is not? I think

not. This is because I suspect that acts are criterial for the ascription of the emotion, particularly when

we are thinking about the degree or the proportion of an emotion. The degree of an emotion is judged,

not by its psychological intensity, but by something like the extent to which considerations that would

normally register with a person (or ought to) are put to one side (in their perception, deliberation and

action) in favour of the features of the situation on which the emotion centres. An emotion is

proportionate when the importance a person gives the object of the emotion (i.e. its importance relative

to the other features of their situation) tracks its true importance.