ABSTRACT
This chapter addresses the question of moral justification for legal doctrine pertaining to agency-related mitigation practices, and discusses the philosophical work of Dana Nelkin and David Hodgson, to develop a moral theory of agency-related blame assessment. It argues that Nelkin’s theory needs to be modified and made more complex, using diachronic insights relating to self-formation from Hodgson’s work, in order to better evaluate sentencing practices. Acceptance of the complexity might raise questions about human capacity (and thus the capacity of courts) to competently assess degrees of blameworthiness. Nelkin’s theory is more fine-grained than Hart’s as to what constitutes a difficulty – she makes it explicit that both the need for effort and sacrifice create difficulties in complying with norms. The chapter deals with Nelkin’s contribution to the composite theory, which focuses on the way the capacities of the agent, interact with the situation of wrongdoing to create difficulty in complying with a norm.
