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Freewill, determinism and criminal justice

Published online by Cambridge University Press:  02 January 2018

Alan Norrie
Alan Norrie*
Affiliation:
University of Dundee
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Extract

‘Supposing, then, that determinism is true – and surely many intelligent and well-informed people believe that it is – how can we any longer uphold the notion of responsibility in our courts of law?’

A. Kenny.

The substance of this article revolves around Kenny's rhetorical question. It is a widely held view among lawyers and legal philosophers that the idea of criminal justice involves the presupposition of the freedom of the will, but there are good grounds for accepting some version of determinism as a working hypothesis to explain criminal behaviour. Judges themselves on occasion do this. Unless it can be shown, therefore, that determinism is either compatible with free will, or is itself an incoherent doctrine, the whole rationale of the criminal law as a form of social control stands exposed to criticism.

Type
Research Article
Information
Legal Studies , Volume 3 , Issue 1 , March 1983 , pp. 60 - 73
Copyright
Copyright © Society of Legal Scholars 1983

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References

* I would like to thank Jim McManus, Bob Ferguson and Ian Willock for reading and commenting on this article. If ‘responsibility’ is a viable concept, they have none for it.

1. Freewill and Responsibility (1978) p. 21, In this paper, I am concerned only with the essentially ‘Kantian’ problem posed in Kenny's question. There may be other ways of conceiving of the nature of criminal justice, for example, that of the utilitarian, but here, I concentrate my attention solely upon the implications and problems associated with what has been termed the predominant view of the nature of criminal justice, implicit within the quotation. Cf. M. Bayles ‘Character, Purpose, and Criminal Responsibility’Law and Philosophy I (1982) 5–20.

2. Hart, H. L. A. Punishment and Responsibility (1968) p. 22 Google Scholar. Strict liability offences are seen as an exception to this rule and are not considered here. Hart's later more concrete statement of this principle, that ‘unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’ (ibid., p. 181) has found considerable support among academic lawyers. See Smith, ‘On Actus Reus and Mens Rea’ in Glazebrook, P. (ed.) Reshaping the Criminal Law (1978) and Ashworth ‘Reason, Logic and Criminal Liability’ (1975) LQR 102–130 Google Scholar.

3. ‘Legal Responsibility and Excuses’ in ibid. Hart mentions five excuses: Mistake, Accident, Provocation, Insanity and Duress. For the sake of convenience, I confine my discussion to them, on the view that they form a representative selection of the defences available in English law. Provocation is of course only a partial excuse within the law.

4. Per Lord Simon, Lynch v DPP [1975] AC 653 at 689.

5. Hart, , op. cit., p. 29 Google Scholar.

6. Ibid.

7. Kenny, A., op. cit., p. 33 Google Scholar.

8. See, e.g., Wright, M. Making Good (1982), pp. 72–76 Google Scholar.

9. Devlin J in Duffy [1949] 1 All ER at 932.

10. Daniel McNaghten's Case 10 CI and Fin, p. 200

11. Devlin J in Duffy, loc. cit.

12. Daniel McNaghten's Case, loc. cit.

13. Lord Morris in Lynch [1975] AC at 670. Williams, Cf. Textbook of Criminal Law (1978) p. 578 Google Scholar; Wasik ‘Duress and Criminal Responsibility’ [1977] Crim LR 453–4. Note, however, Dennis's qualification of this point in his ‘Duress, Murder and Criminal Responsibility’ (1980) LQR 208 at 224–228.

14. See footnote 4, supra.

15. Lord Simon in Lynch at 690; Wasik, op. cit., pp. 456–7; Smith, op cit., p. 105.

16. Simon, Lord in Lynch at 686 Google Scholar.

17. Wasik, , op. cit., p. 456 Google Scholar.

18. Per Lord Morris in Lynch at 670. This was the view of the minority judges in Lynch, who argued that the logic of allowing Duress would be to admit the defence to murder as a principal in the first degree, and, beyond that, to a broad defence of Necessity. See Lord Simon at 691–3, Lord Kilbrandon at 701–2. See also Smith and Hogan Criminal Law p. 197. Dennis, however, distinguishes some examples of Necessity from cases of Duress in op. cit., pp. 229–230.

19. The Brixton Disorders 10–12 April 1981 (Cmnd. 8427).

20. Op. cit., p. 16.

21. Ibid., p. 37. This comment rests uneasily with Lord Scarman's distinction elsewhere between ‘causes’ and ‘conditions’ (p. 16). When he writes of social features being ‘conditions’ which predispose to rioting, and not causes in themselves, I take him to mean that those social conditions he identifies are necessary, but not sufficient, causes of disorder.

22. Ibid., p. 14.

23. Op. cit.

24. Ibid., p. 48.

25. Edwards, P., ‘Hard and Soft Determinism’ in Hook, S. Determinism and Freedom (1958)Google Scholar.

26. Op. cit., p. 47.

27. ‘It is necessary’, wrote Tolstoy at the end of War and Peace, ‘to renounce a freedom that does not exist and to recognise a dependence of which we are not personally conscious’. Quoted in A. Kenny, ‘Freedom, Spontaneity and Indifference’, in T. Honderich Essays on Freedom of Action (1973).

28. Kenny, A. Freewill and Responsibility pp. 25–26 Google Scholar.

29. P. Edwards, op. cit.

30. Kenny, A., op. cit., Ch. 2Google Scholar.

31. Ibid., p. 24.

32. Ibid., p. 25.

33. Ibid., p. 24.

34. See, e.g., Kittrie, N. The Right to be Different (1971)Google Scholar.

35. Kenny, A. Will Freedom and Power (1976) p. 148 Google Scholar.

36. Freewill and Responsibility p. 27.

37. Ibid., p. 28.

38. Will, Freedom and Power p. 120. Kenny there counters his own admission with the assertion that ‘There is no need to look for some mysterious causal link between the volition and the action …’ and goes on to ague that ‘if there were a causal link between the want and the action, the action would cease to be voluntary’. Neither comment, nor the general drift of the passage, furthers his argument.

39. Freewill and Responsibility p. 28.

40. Ibid., p. 29.

41. Will, Freedom and Power, p. 116.

42. Ibid., pp. 91–93.

43. Op. cit., pp. 15–16, and p. 64.

44. At p.686.

45. For a full account of such a position, see R. Bhaskar The Possibility of Naturalism (1979) Ch. 3.

46. Marx, K. and Engels, F. Selected Works (1968) p. 96 Google Scholar.

47. op. cit., p. 22.

48. ‘Thus the commitment of the legal form to individuality is ultimately illusory, because the individuality it recognises and presupposes is in fact an alienated form of individuality - individualism.’ Balbus, I. ‘Commodity Form and Legal Form’ in Reasons, C. and Rich, R. The Sociology of Law: A Conflict Perspective (1978) p. 80 Google Scholar.

To a limited extent ‘individual justice’ may be admitted by the backdoor through mitigation of sentence, but this occurs only once legal justice has itself been done, i.e. once the accused has been tried and convicted of a crime. The principle of mitigation of sentence therefore serves only to underline the contrast between legal and individual justice, or as Lord Devlin puts it, between the ‘function of mercy’ and the ‘function of justice’. P. Devlin Samples of Law Making (1962) p. 73.