A Defense of Moral Exclusion in the Law

Kenworthey Bilz, Northwestern University Law School

Abstract

This article challenges a fundamental tenet of the “narrative” approach to legal judging, which I call the “moral inclusionary model,” and which is most closely associated with law and literature. This model states that before we may morally judge an offender, we must give him the opportunity to tell his story fully. Using both hard evidence from empirical psychological research on emotions and perspective-taking, and the more intuitive techniques of literary criticism, I argue that the law both does and should give equal weight to a moral EXclusionary model. That is, in order to render sound, legitimate legal judgments, the law must deliberately limit the sort of mitigating stories offenders are allowed to tell—even when they are logically relevant. That is, conventionally, as both a descriptive and normative matter, we believe that evidence should lead us to particular moral evaluations. By contrast, I defend the position—again, both descriptively and normatively—that our moral evaluations often dictate what evidence is relevant in the first place.