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Introduction 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 appre- ciation 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 psy- chology, but also to ones in neuroscience, cognitive psychology, and theology. By the early twenty- fi rst 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 fl ourished, regarding both general questions, such as the nature of law, coercion, and legal obligation, and more specifi c ones, such as the foundational principles of criminal law, torts, and contracts, the nature of legal responsibility, and the justifi cation of punishment. While these develop- ments 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 pro- vide 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 fi gure 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 cre- ativity, and over many years developed novel theories of free will, consciousness, rationality, and the justifi cation 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. 1 For a concise summary of the free will debates in analytic philosophy over the past several decades, see Kane (2011). For an overview of the developments in the philosophy of law over roughly the same period, see Murphy (2007 ) and Postema (2011 ). 2 Allan McCay and Michael Sevel Free will and the criminal law For much of the last century, discussions of the problem of free will in the con- text 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 justifi ed 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 sen- tenced to death. In most legal systems, part of the justifi cation for the penalty lies in the need to protect the community; however, another part of the justifi cation 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 signifi cant for the assessment of the offender’s responsibility that the for- mation 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 2 A focus on the remote causal history of behaviour has not been confi ned to theory. In 1924, the American attorney Clarence Darrow, in respect of one of his clients (Richard Loeb), famously referred to “the infi nite forces that were at work in producing him ages before he was born”. Darrow made this reference in his much- publicized plea in mitigation in the sentencing of Loeb and Nathan Leopold, for the murder of Bobby Franks. The plea also touched on the role of heredity and social environment in causing criminal behaviour. For the full text of Darrow’s plea in mitigation, see Sellers (2006 ). Introduction 3 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 contem- porary debate has focused on deterministic causation and its compatibility with and consequences for the scope and signifi cance of free will. Determinism has been defi ned in a number of different ways over the long history of the free will debate. 4 However, a useful working defi nition is as follows: given the causal ante- cedents 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 infl uential 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 signifi cant 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 infl uential 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 signifi cance. For compatibilists, merely knowing that the Manson crimes were caused deter- ministically 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, 3 For an example of some contemporary work that focuses on divine knowledge as a threat to free will, see Hasker (2011 ). 4 Perhaps the most famous historical exposition of determinism is that by the nineteenth century French mathematician, astronomer, and physicist Pierre Laplace: [A]n intelligence which could comprehend all the forces by which nature is animated and the respective situation of all the [things which] compose it – an intelligence suffi ciently vast to submit these data to analysis – it would embrace in the same formula the movements of the greatest bodies of the universe and those of the lightest atom; for it, nothing would be uncertain and the future, as well as the past, would be present to its eyes. ( Laplace 1951 : 4) 4 Allan McCay and Michael Sevel and deserving of punishment.
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