Washington University Jurisprudence Review Volume 9 | Issue 1 2016 Criminal Responsibility and Causal Determinism J. G. Moore Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Criminal Law Commons, Jurisprudence Commons, Legal History Commons, Legal Theory Commons, Philosophy Commons, and the Rule of Law Commons This document is a corrected version of the article originally published in print. To access the original version, follow the link in the Recommended Citation then download the file listed under “Previous Versions." Recommended Citation J. G. Moore, Criminal Responsibility and Causal Determinism, 9 Wash. U. Jur. Rev. 043 (2016, corrected 2016). Available at: http://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/6 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. 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This article is available in Washington University Jurisprudence Review: https://openscholarship.wustl.edu/law_jurisprudence/vol9/ iss1/6 CRIMINAL RESPONSIBILITY AND CAUSAL DETERMINISM: CORRECTED VERSION J G MOORE* INTRODUCTION In analytical jurisprudence, determinism has long been seen as a threat to free will, and free will has been considered necessary for criminal responsibility.1 Accordingly, Oliver Wendell Holmes held that if an offender were hereditarily or environmentally determined to offend, then her free will would be reduced, and her responsibility for criminal acts would be correspondingly diminished.2 In this respect, Holmes followed his father, Dr. Holmes, a physician and man of letters.3 Similar theories, such as neuropsychological theories of determinism, continue to influence views on criminal responsibility, although such theories do not imply that it is physically impossible for accused persons to act other than they do.4 This suggests that some amount of free will is compatible with theories of this kind. Nevertheless, the common understanding that accused persons can be free and responsible agents might disappear altogether if people were to accept the truth of causal determinism,5 which is the philosophical thesis that there is only one physically possible future consistent with the * The author is an analytical philosopher who is presently reading for the degree of Juris Doctor at the University of New South Wales. The original version of this Article was submitted in partial fulfillment of the requirements of that degree. The author would like to acknowledge Dr. Marc De Leeuw, who supervised the original version. 1. Luis E. Chiesa, Punishing Without Free Will, 2011 UTAH L. REV. 1403, 1405 (2011); Stephen J. Morse, Criminal Responsibility and the Disappearing Person, 28 CARDOZO L. REV. 2545, 2547 (2007) [hereinafter Morse, Criminal Responsibility]; Stephen J. Morse, Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience, 9 MINN. J.L. SCI. & TECH. 1, 1 (2008) [hereinafter Morse, Determinism]. See also United States v. Grayson, 438 US 41, 52 (1978), in which Burger C.J. held that “a deterministic view of human conduct . is inconsistent with the underlying precepts of our criminal justice system”; R v. Kennedy [2007] UKHL 38 [14], [2008] AC 269 [275] (Eng.), in which the House of Lords held that “the criminal law generally assumes the existence of free will.” 2. OLIVER WENDELL HOLMES JR., THE COMMON LAW 31 (American Bar Association, 2009) (1881). 3. OLIVER WENDELL HOLMES SR., Crime and Automatism, in OLIVER WENDELL HOMES SR, THE COMPLETE WRITINGS OF OLIVER WENDELL HOLMES 349 (Boston, Houghton Mifflin, 1891). 4. Henrik Walter, Contributions of Neuroscience to the Free Will Debate: From Random Movement to Intelligible Action, in THE OXFORD HANDBOOK OF FREE WILL 515 (Robert Kane ed., 2d ed. 2011). Contra Morse, Determinism, supra note 1, at 2. 5. In this Article, the term ‘accused person’ is used more often than ‘agent’ in order to maintain the focus on criminal, rather than moral responsibility. 43 Washington University Open Scholarship 44 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 9:43 past and the laws of nature.6 Causal determinism touches the criminal law, because it implies that it is physically impossible for an offender not to offend in the precise way and at the precise time that she does. Scholars who conclude that free will is incompatible with causal determinism are called “incompatabilists.”7 There are, of course, two sides to every scholarly coin. On the other side of this coin are scholars who think that free will is compatible with causal determinism. These scholars are called “compatibilists.”8 The purpose of this Article is to argue that incompatibilism is plausible, and, as a consequence, scholars should adopt a view of criminal responsibility and punishment that is consistent with the skepticism that this conclusion should generate. This purpose is motivated by Hart, who defends compatibilism on the basis that incompatibilism is “incautious.”9 The body of this Article consists in several parts. In Part I, causal determinism is explained. In Part II, the notion of free will is discussed. In Part III, the neo-Aristotelian compatibilism of Frankfurt, Hart and Morse is considered. In Part IV, van Inwagen’s argument for incompatibilism is examined. In Part V, an attempt is made to defend incompatibilism against Fischer’s neo-Aristotelianism. In Part VI, Hart’s argument for the incautiousness of incompatibilism is studied. In Part VII, Fletcher’s causal indeterminism is explored. In Part VIII, the concept of legal causation is considered. In Part IX, Morse’s normative compatibilism is investigated. In Part X, the concept of mens rea is analyzed. Finally, in Part XI, the justification of criminal punishment is questioned. I. CAUSAL DETERMINISM H.L.A. Hart makes only a slight attempt to define “determinism,”10 and often shifts his definition between its neuropsychological and causal variations. This occurs, for example, when he discusses determinism in connection with “physiological or neurological symptoms or independently definable psychological disturbances,”11 on the one hand, 6. PETER VAN INWAGEN, AN ESSAY ON FREE WILL 3 (1983). 7. Stephen J. Morse, The Non-Problem of Free Will in Forensic Psychiatry and Psychology, 25 BEHAV. SCI. L. 203, 213 (2007); PETER VAN INWAGEN, METAPHYSICS 271 (4th ed. 2015). 8. Chiesa, supra note 1, at 1405; VAN INWAGEN, supra note 7, at 271; George R. Wright, Criminal Law and Sentencing: What Goes with Free Will, 5 DREXEL L. REV. 1, 8 (2013). 9. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 30 (2d ed. 2008). 10. Id. at 28–31, 48, 53, 179, 241. 11. Id. at 32. https://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/6 2016] CRIMINAL RESPONSIBILITY AND CAUSAL DETERMINISM 45 CORRECTED VERSION and “philosophical determinism,” on the other hand.12 To the extent that Hart does attempt to define causal determinism, it is as the thesis “that human conduct . [is] subject to certain types of law, where law is to be understood in the sense of a scientific law.”13 Luis E. Chiesa gives a more detailed definition along the same lines. For him, causal determinism is the thesis that every event, even every mental event, is caused by an antecedent event, or antecedent events, together with the laws of nature, such that if the event were not to occur, then either the past would have been different from what it in fact was, or a law of nature would have been violated.14 This is also the view of classical physics, such as the physics of Newton and Maxwell, or even the earlier physics of Einstein.15 John Martin Fischer provides a different definition. According to him, causal determinism is the thesis that propositions about the past and the laws of nature logically entail propositions about the future, such that if the future were to be different, then propositions about the past or the laws of nature would be false.16 Scholars who adopt definitions like Fischer’s do so, because they believe that logical entailment is well understood, whereas causation is “obscure.”17 Moreover, some advocates of a causal definition, including Stephen Morse, conflate causal determinism with universal causation, which is the view that every event has a cause.18 While the latter may be true, it does not logically entail causal determinism. For example, agents may be able to cause their own decisions and actions without being causally determined to do so, or causes may not necessarily determine their effects.19 It is unclear whether Fischer’s definition has any advantage over Chiesa’s, other than to prevent confusion on the part of some scholars. To begin, propositions about laws of nature seem to include a priori the concept of causation, since such laws must at least implicitly be treated as the causes of events.20 Moreover, neither definition is compatible with accused persons being able to cause their own decisions and actions 12. Id. at 82. 13. Id. at 29. 14. Chiesa, supra note 1, at 1435. 15. David Hodgson, Quantum Physics, Consciousness, and Free Will, in THE OXFORD HANDBOOK OF FREE WILL 57, 57 (Robert Kane ed., 2d ed. 2011). 16. JOHN MARTIN FISCHER, THE METAPHYSICS OF FREE WILL: AN ESSAY ON CONTROL 9 (1994). 17. JOHN EARMAN, A PRIMER ON DETERMINISM 5 (Robert S. Butts ed., 1986). 18. Morse, supra note 7, at 212; Morse, Criminal Responsibility, supra note 1, at 2547; Morse, Determinism, supra note 1, at 14. 19. Van Inwagen, supra note 6, at 4.