Bad Acts and Guilty Minds: Conundrums of the Criminal Law

by Leo Katz

With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law.

" Bad Acts and Guilty Minds . . . revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale founded in basic notions of fairness and reason. . . . It will help lawyers to better serve their clients and the society that permits attorneys to hang out their shingles."—Edward N. Costikyan, New York Times Book Review

Genres: Law, Philosophy, Nonfiction, Psychology

351 pages, Paperback

First published December 1, 1987

About the author

Leo Katz’s work focuses on criminal law and legal theory more generally. By connecting criminal law, moral philosophy and the theory of social choice, he tries to shed light on some of the most basic building block notions of the law—coercion, deception, consent, and the use and abuse of legal stratagems, among others. Katz is the author of several books: Bad Acts and Guilty Minds: Conundrums of the Criminal Law (University of Chicago, 1987); Ill-Gotten Gains: Evasion, Blackmail, Fraud and Kindred Puzzles of the Law (University of Chicago, 1996); and most recently Why the Law Is So Perverse (forthcoming), which he researched with the support of a Guggenheim Fellowship. Together with Stephen Morse and Michael Moore, he edited Foundations of the Criminal Law (Oxford, 1999).

Reviews

[Noah · Rating 3 out of 5]

This is one of those books that nobody should read for pleasure, but I did enjoy it. It's basically a light philosophy textbook that keeps pushing the envelope on assumptions about basic notions like intent. And if you're a fan of ridiculous hypotheticals (I'm the president of the fan club), this is a treasure trove.

[Alex · Rating 4 out of 5]

Katz has an engaging writing style which guides you through the pitfalls and sticky moments of criminal law through a practical and philosophical lens. With intriguing examples and thorough analyses, everything from cannibalism to ghost killing is considered.
My only moments of criticism were in those times where Katz uses a fairly layman’s understanding of Psychology to point to answers that don’t necessarily follow if you have a more thorough grasp of the subject, although this and other off-mark arguments may have a lot to do with the time period in which this book was written.

[Mary Collard · Rating 4 out of 5]

Logical and easy to follow

[Taka · Rating 3 out of 5]

A good primer—

Question: What does it mean to say X caused Y's death?

Well, we might say, it means if it weren't for X, the victim Y wouldn't have died.

Simple, but wrong. Or at least incomplete. Consider this case: Martha fires a bullet at John, trying to kill him, but misses and hits him in the arm instead. He is taken to the hospital, where he unfortunately catches scarlet fever from a nurse and dies.

Who caused John's death?

Surely, if it weren't for Martha, John wouldn't have gone to the hospital, caught scarlet fever, and died there. But we are reluctant to conclude Martha caused John's death. What's going on here?

This approach is a familiar one in philosophy: look at hard cases and test the rules and laws in place, and if they don’t stand up to it, reformulate them so they can explain not just the easy cases but the hard ones too. Using this approach, Leo Katz tackles all the major questions in the philosophy of law: necessity (is murder under "necessity" pardonable?), defining criminal actions (what does constitute a bad act?), determining intention and negligence (e.g., if someone intends to kill someone and ends up killing another, is that "murder"—that is, an intentional killing?), establishing causation, complicity, and conspiracy (all harder than you expect), and finally, attempted crimes. In all cases, our initial smugness and complacency falls away as soon as he presents a hard case to prove our intuition wrong/incomplete.

Other than its down-to-earth tone and effort at elucidation, what I most appreciated about this book is its interdisciplinary approach. Leo Katz draws not only on his extensive knowledge of international legal cases both past and present, but also on a panoply of disciplines: literature, history, psychology (esp. Kahneman and Tversky’s prospect theory), and of course analytical philosophy (Wittgenstein, Austin, and Searle in particular).

Despite the stylistic infelicities—the repetitive, almost incantatory explanations that tend to grind on your ears after a while—this is a solid introduction to the philosophy of criminal law.

[Brandt · Rating 4 out of 5]

The prefatory clause of the book states a truism that is evident throughout the book in its entirety viz.:

According to the common law, each crime consists of two parts, one physical and one mental, the actus reus and the mens rea, the "bad act" and the "guilty mind" - in the case of murder, the act of killing and the malice of aforethought" (p.vi).

The questions that arise from the field of jurisprudence are equally fascinating and disturbing. This book exposes those nagging questions in a style that looks through the history of jurisprudence, and uses cases from a variety of sources to accurately explain the competing theories relevant in questions as diverse as necessity, legal requirements of actus rea, and whether or not, the actus rea should be considered without the requisite mens rea.

The questions are not limited to just these. The strange problems of causation, intention, duress, complicity, negligence, and attempt are also given equal treatment of philosophical questioning. What this book attempts to do is to explain the basic concepts and rules that ground linguistical, psychological, and moral puzzles in simplistic philosophical questions that could either support or discredit competing theories.

There is a great deal of attention paid to jurisprudence and criminal law in the book. The presentation of various disciplines, showing their interconnectedness, makes the reading accessible to all of those interested in the law. Further, this book presents an infinite variety of human behavior that can be called into question by the law. Ultimately, reading this book can revive the mind, challenge superficial analyses, and serve as a reminder of the vast body of case and statutory law that is founded in the rationale of fairness and reason.

[Jane]

This is like the best parts of law school, the hypos and the thinking. Although it's criminal law, it has tidbits from contracts and torts too. If you enjoy watching "Law and Order" I think you'd like reading this, but it does want you to use your brain.

[Alan · Rating 5 out of 5]

I went through a couple years reading books on law and criminal behavior, all the while investigating same. This is one of the best.