Free Will and the Law

New Perspectives

Allan McCay, Michael Sevel, Allan McCay, Michael Sevel

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781472481443
• eBook ISBN: 9781317132967
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

This volume brings together many of the world's leading theorists of free will and philosophers of law to critically discuss the ground-breaking contribution of David Hodgson's libertarianism and its application to philosophy of law.

The book begins with a comprehensive introduction, providing an overview of the intersection of theories of free will and philosophy of law over the last fifty years. The eleven chapters collected together divide into two groups: the first five address libertarianism within the free will debate, with particular attention to Hodgson's theory, and in Part II, six contributors discuss Hodgson's libertarianism in relation to issues not often pursued by free will scholars, such as mitigation of punishment, the responsibility of judges, the nature of judicial reasoning and the criminal law process more generally. Thus the volume's importance lies not only in examining Hodgson's distinctive libertarian theory from within the free will literature, but also in considering new directions for research in applying that theory to enduring questions about legal responsibility and punishment.

1
Introduction

Allan McCay and Michael Sevel

Over the past half century, there has been an unprecedented number of major developments in both the philosophy of free will and the philosophy of law. On the one hand, the number, diversity, and sophistication of theories of free will and responsibility have risen sharply in recent years, and there has been greater appreciation of the connections between these debates and other areas of enquiry – in relation not only to perennial philosophical topics in, e.g., ethics and moral psychology, but also to ones in neuroscience, cognitive psychology, and theology. By the early twenty-first century, the relevant literatures on free will have accordingly become vast and increasingly technical. On the other hand, debates on a range of topics in the philosophy of law have flourished, regarding both general questions, such as the nature of law, coercion, and legal obligation, and more specific ones, such as the foundational principles of criminal law, torts, and contracts, the nature of legal responsibility, and the justification of punishment. While these developments have been concurrent, they have, to a large extent, proceeded in relative isolation from each other. While we cannot, and in any case need not, summarize all the twists and turns of these discussions,¹ we will aim instead to give a broad overview of the points of contact and interaction between theories of free will and the philosophy of law over the last several decades. That overview will provide some of the necessary context for our volume’s eleven newly commissioned essays, authored by many leading philosophers of free will and law.

All of the essays engage in various ways with the libertarian theory of free will of philosopher and jurist David Hodgson (1939–2012). Hodgson is a unique figure in recent times, as he was both a well-respected appellate judge for nearly three decades, as well as an Oxford-trained philosopher of considerable skill and creativity, and over many years developed novel theories of free will, consciousness, rationality, and the justification of punishment. Our introduction will, therefore, conclude with an overview of Hodgson’s career and philosophical views, as well as a summary of the structure and content of the eleven essays which follow.

Free will and the criminal law

For much of the last century, discussions of the problem of free will in the context of the law have largely related to the responsibility, blameworthiness, and punishment of those who have committed criminal offences (Green 2014). In many legal systems, the criminal law often requires evidence of the actus reus (the criminal act) and the mens rea (the guilty mind) for an offence, which meets the requisite standard of proof to convict a person, and thereby hold them legally, and on many views morally, responsible for their crime. Theories of free will have informed normative views about the propriety of such practices. For example, it has been questioned whether the current practices of the criminal law in many, perhaps all, jurisdictions are morally justified if some purported general threat to free will turned out to be well-founded (Pereboom 2014).

To illustrate, consider one such purported threat in relation to the crime of murder. It is generally true of a person who has formed an intent to kill someone (mens rea) and then successfully acted on the intention (conduct constituting the actus reus) without any legally recognized defence that the person may be held responsible for this crime. They may then be sentenced and imprisoned for a substantial period of time. In some jurisdictions the person may even be sentenced to death. In most legal systems, part of the justification for the penalty lies in the need to protect the community; however, another part of the justification is normally retributive – that is, one aim of punishment is to give the murderer what they deserve for what they have done. But if we think of human beings as being part of a world in which all events (including human actions) are caused by prior events, one may then start to wonder whether the formation of intent and the act of killing are part of a long causal chain that began long before the birth of the offender, and are therefore ultimately caused by factors that are outside the offender’s control. This sort of thought can easily begin to cast doubt on the offender’s responsibility for what they have done, and likewise on the punishment rendered in light of it. In relation to the penalty, we may start to question whether the murderer really deserves to be jailed or killed. For many theorists, then, it is morally significant for the assessment of the offender’s responsibility that the formation of an intent to kill and the act of killing resulted from the offender’s free choice, and consideration of the causal history of the criminal behaviour, beyond the control of the offender, seems to call this freedom into question.²

The history of the free will debate includes consideration of various purported threats to human freedom. Concerns about fate, the powers or knowledge of a deity, and, particularly since the advent of modern science, a naturalistic picture of the world in which all events are caused by earlier events have been thought by philosophers to threaten human freedom (Kane 2005). Much, but certainly not all,³ of the contemporary free will debate responds to problems emanating from a naturalistic view of the world in which human action forms part of a web of cause and effect with all other natural events. A large portion of the contemporary debate has focused on deterministic causation and its compatibility with and consequences for the scope and significance of free will. Determinism has been defined in a number of different ways over the long history of the free will debate.⁴ However, a useful working definition is as follows: given the causal antecedents of everything (including everyone) in the world, in conjunction with the laws of nature, there is only one possible future. So if determinism obtains, given the initial conditions of the Big Bang and the laws of nature, it was necessary, for example, that the cult leader Charles Manson and his followers to commit all their crimes in the precise manner they in fact did.

Within the free will debate, some are compatibilists, and, as will be seen in the next section, compatibilism has been influential in the development of much of the legal theory that addresses the issue of free will. Compatibilists argue that determinism is consistent with some or all of the following: free will, moral responsibility, blameworthiness, and retributive punishment (i.e., punishment that is deserved). Many compatibilists argue that the mere fact of deterministic causation does not justify withholding blame (or praise), and usually argue that what is significant in deciding whether an agent is free, morally responsible, or deserving of blame or punishment is features of the agent’s psychological state, rather than metaphysical issues about the causal structure of the world. Thus, one influential compatibilist view, that of Fischer and Ravizza (1998), focuses primarily on the degree to which an agent is responsive to reasons for action in the demarcation of the line between those who are morally responsible and those who are not, rather than focusing on metaphysical issues concerning the nature of causation. On this compatibilist view the agent’s mental capacities for choice are of primary significance.

For compatibilists, merely knowing that the Manson crimes were caused deterministically does not ipso facto ground a reason to exculpate the perpetrators; we would need to enquire into the psychological state, perhaps also the rationality, of those involved to know whether they were free, morally responsible, blameworthy, and deserving of punishment. A compatibilist position has the potential to preserve much of what was purported to be under threat in the contemporary free will debate, including legal responsibility and retributive punishment. It is thus a view that is somewhat friendly to the law’s status quo of presuming that persons are capable of being legally responsible for their actions, which may go some way to explaining its appeal to some legal philosophers.

By contrast, incompatibilists argue that if determinism is true, then we are not free, morally responsible, deserving of praise, blame, punishment, or reward.⁵ For an incompatibilist, if it turned out that the world was deterministic, then no-one would ever be responsible for anything. So this would mean that those involved in the Manson killings would not have acted freely or been responsible for what they did. Nor would they deserve any punishment. In that case, for the criminal law to take morally justified action against them, it must rely on some other justification such as community protection or prevention of future offences.

Compatibilists are often agnostic about whether determinism is true; their core claim is often asserted conditionally (similar to that in the previous paragraph). In this regard, it is worth noting that since the advent of quantum theory in physics, many consider the plausibility of the claim that the world is deterministic to be either diminished or undermined entirely. The view that the universe is indeterministic, i.e., that causes do not determine their effects but somehow bring them about in an indeterministic way, has gained wider acceptance among scientists and philosophers (Kane 2011: 5–9).

While incompatibilists argue that determined choices cannot be free, can undetermined choices be free? Those who espouse libertarianism about free will (whether in response to the indeterministic picture of the world that some see as emerging from the sciences, or for other reasons) argue that the thesis of determinism is false.⁶ Nonetheless, they argue, we can make undetermined choices that we somehow control, and are thus free. So, for example, in order for Manson and his followers to be responsible for their crimes they would need to have made at some point a libertarian choice or choices related to the formation of their character, or the commission of the offence. That is, they would need to have made one or more relevant undetermined choices that they control, to be responsible for their crimes.

Libertarian views have been less influential in legal philosophy than compatibilist views, and, as will be seen later, the main proponent of the view within such debates is David Hodgson (2012). If Hodgson is right, then libertarianism is friendlier to the legal status quo than has been previously thought. That is, if legal subjects are libertarian free agents, they can be morally responsible for their conduct in a way that could preserve a link between legal and moral responsibility. According to Hodgson’s view, the exercise of libertarian free will grounds the kind of responsibility that can make punishment deserved, thus preserving the retributive justification for punishment.

Thus, if one espouses some form of compatibilism or libertarianism, one may not be committed to either a major change to traditional legal practices or a radical shift in understanding of the point of those practices.⁷ However, a notable minority of philosophers see the justification of the criminal law’s responsibility and punishment practices as arising out of considerations that need not rely on any satisfactory account of free will, and so downplay or reject the significance of free will for justifying such practices. Some urge for radical change, seeing the role of the criminal law as being confined to protecting the community and prevention of harm to others, rather than imposing deserved punishment; these practices may be justified even if some sceptical position on free will is true (Pereboom 2014; Caruso 2016). In fact, a perhaps growing number of sceptics argue that there is no place for concepts such as free will, moral responsibility, blame, or deserved punishment in the law at all. Their general proposal suggests a radical reconception of the law’s various frameworks for holding offenders responsible, or doing away with them altogether, while retaining some legal mechanisms for incarceration and in some cases rehabilitation (Waller 2011; Vilhauer 2013; Levy 2012; Corrado, Chapter 9, this volume). These views are revolutionary with respect to their prescriptions for the legal system in a way that compatibilism and libertarianism are not.

But compatibilist and libertarian views of free will and moral responsibility remain the primary approaches to justifying the criminal law’s practices of holding responsible and imposing punishment (for retributive reasons) on those who commit crimes. Compatibilism has been, more generally, the most common way to respond to concerns about free will and responsibility in relation to other long-standing issues in legal theory. However, a greater diversity of views has now emerged; indeed, one purpose of this collection of essays is to contribute to that diversity. We turn now to examining these approaches in more detail, before turning to the distinctive contributions of the essays of this volume.

Compatibilism and legal theory

It is often said that compatibilism is the orthodox approach to free will in legal theory. Kaye (although not himself supportive of compatibilism) has asserted that “[a]ccording to the dominant view in contemporary criminal theory, we have a compatibilist criminal law” (2005: 1158). Norrie (also not himself a compatibilist) has taken the most influential Anglophone legal philosopher of the twentieth century, H. L. A. Hart, to be a compatibilist (Norrie 1983: 62). And the most prominent contemporary theorist who has significantly engaged with the free will problem in the context of legal philosophy, Stephen Morse, contends that “only compatibilism can explain and justify our legal practices” (2004: 431). He states that compatibilism:

is the approach that I and many other criminal lawyers explicitly or implicitly adopt. This approach accepts completely that we live in a thoroughly causal world, ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of contributors
• 1 Introduction
• PART I Libertarian free will
• PART II Libertarian free will and the law
• Index