5. Capacity and incapacitating conditions

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. A person should only be held criminally liable where he has the capacity to understand his actions, and to recognise the consequences which may flow from them; and, having understood them, where he has the capacity to control them. The criminal law recognises the requirement of rational capacity by excepting persons who lack rational capacity from liability in certain circumstances. This chapter examines the issues of the age of criminal responsibility, insanity and the M’Naghten Rules (including analysis of the meaning of a ‘disease of the mind’ and the cognitive tests for determining whether someone is legally insane), automatism, and intoxication (with analysis of the distinction between offences of specific intent and basic intent). A revised and updated ‘The law in context’ feature explores the treatment of mentally disordered defendants and offenders in the criminal justice system.

Themistius on Concept Formation

This paper reconstructs the account of concept formation developed in the 4th Century A.D. by Themistius in the most ancient extant commentary on Aristotle’s Posterior Analytics. Themistius’ account can be contrasted with two widespread modern interpretations of Aristotle. Unlike psychological empiricists, Themistius ascribes an active role in concept formation to our innate capacity of understanding (νοῦς). Unlike intuitionists, he would not be satisfied by saying that νοῦς “intuits” or “spots” concepts. Rather, the question is what makes our νοῦς capable of “finding” and “recognizing” concepts in experience, and this can only be an understanding prior to all experience. Themistius seems to be responding here to Platonist arguments against Aristotle’s epistemology: postulating a “potential νοῦς” is not enough, for one can apply Meno’s dilemma to it and ask how it can recognize that it has found what it was looking for. But, contrary to the judgment of some modern scholars, Themistius never embraced the theory of recollection either (he rejects it decisively). He argued that both empiricism and Platonist innatism are wrong and developed a middle path marked by a strong interdependence between the perceptive and the rational capacity. This holds for all rational learning, and concept formation is its first stage: to form a concept means to learn something genuinely new, but also to recognize it as falling, e. g., under one of the ten categories. While being presented as a mere “paraphrasis” of Aristotle’s words, Themistius’ account is a well-advised and original response to the epistemological debates of his time.

Women and Moral Argument

In the Republic, Plato famously admits women into the guardian class and expects them to have the same education as men. The question arises as to what sort of argument Aristotle thought suitable for women. Although the rational capacities of women are not mentioned in the NE, the issue does arise in the Politics. According to one widespread interpretation, women have similar rational capacities to men, but their deliberation is overpowered by emotion, rendering them essentially incontinent. Against this interpretation, I argue that Aristotle thought women’s rational capacity limited in a different way. The problem he has in mind here is not incontinence. Rather, they are able to deliberate well at the individual level and in the household, but not in the political sphere. But this means they would still benefit from rational discussion about eudaimonia and about most of the topics covered in the NE.

Rational Assent and Self-determination to the Better or the Worse

This chapter discusses three philosophers in the Damascian tradition: Damascius himself, Simplicius in his Commentary on Epictetus’s Handbook, and Ps-Simplicius in his Commentary on Aristotle’s De Anima. These philosophers develop the idea that the rational soul engages in a kind of activity that is strictly self-reflexive, but that can be either right or wrong. This is an activity by which the soul makes itself either better or worse. Ps-Simplicius spells out the nature of this activity in his account of the operation of rational faculties. This account makes it possible to explain what is distinctive about the rational capacity for assent. Because it is exercised self-reflexively, this capacity can be reason-responsive: one can assent (and revise one’s assent) on the basis of reasons. The chapter argues that the fact that human beings are capable of this kind of reason-responsiveness helps to explain why they are responsible for their actions.

Meta Logou in Plato’s Theaetetus

The account of knowledge in Plato’s Theaetetus, as true belief meta logou, seems to lead to a regress, which may be avoided by defining one kind of knowledge as true belief that rests on a different kind of knowledge. I explore a specific version of this move: to define knowledge as true belief that results from a successful and proper exercise of a rational capacity (a dunamis meta logou).

5. Capacity and incapacitating conditions

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. A person should only be held criminally liable where he has the capacity to understand his actions, and to recognise the consequences which may flow from them, and, having understood them, where he has the capacity to control them. The criminal law recognises the requirement of rational capacity by excepting persons who lack rational capacity from liability in certain circumstances. This chapter examines the issues of the age of criminal responsibility, insanity and the M’Naghten Rules (including analysis of the meaning of a ‘disease of the mind’ and the cognitive tests for determining whether someone is legally insane), automatism, and intoxication (with analysis of the distinction between offences of specific intent and basic intent). A revised and updated Law in Context feature explores the treatment of mentally disordered defendants and offenders in the criminal justice system.

Trouble with Knowledge

This paper is a critical notice of Andrea Kern's book Sources of Knowledge. In the first part, I outline some criteria of adequacy I believe any credible philosophical account of knowledge should meet. In the second, I consider how Kern's book measures up to those criteria. Finally, I offer a sympathetic and constructive discussion of a number of key elements of Kern's approach, including the relation of her position to the philosophy of John McDowell, from which Kern draws inspiration; her defence of disjunctivism; her concept of a rational capacity for knowledge and its acquisition; and her understanding of scepticism.