“This seems like a philosophical question.”
My classmate was trying to parse the Supreme Court’s reasoning in two cases with similar facts and different outcomes. Our professor did not seem enthusiastic about the prospect of a philosophical discussion. Some professors teach introductory law classes like a foreign language, immersing students in legal syntax and vocabulary until its functioning becomes intuitive and fluid. Imagine trying to teach French students to conjugate a verb while they’re working on a grand theory for the union of sound and thought. You would get further by just drilling, “Je vais à la plage. Tu vas à la plage. Il/Elle/On va à la plage.” So our professor responded with a pointedly practical answer spelling out the officially recognized legal rule at work in the two decisions.
But there was an interesting, philosophical issue beneath the surface of the Court’s reasoning, even if we didn’t have enough time to cover it. These are the two cases:
Case 1: Los Angeles police officers came upon a man on the street and noticed track marks on his arms. When questioned, he admitted to the occasional use of narcotics. They arrested him and charged him under a state law making it a criminal offense to “be addicted to the use of narcotics.” His legal challenge to the law made it to the U.S. Supreme Court, which struck it down because criminal law requires a voluntary act (actus reus), not just a status. Furthermore, the Court grounded its authority to strike down a state law in the 8th amendment, adding that it was particularly cruel and unusual to punish someone for a disease, like addiction, that deprives its victim of free will.
Case 2: Six years later, the Court upheld a man’s conviction under a statute making it illegal to be found in a state of intoxication in a public space. The defendant argued that he suffered from chronic alcoholism and was afflicted with an uncontrollable compulsion to drink. In this case, however, the Court was unmoved by the defendant’s appeal to a lack of free will or to the unconstitutionality of status offenses. For the Court, his crime was not being an alcoholic, drinking, or even being drunk. It was the act of being found in public while drunk. The defendant argued that his alcoholism precluded his drinking without getting drunk and that, once drunk, he had no choice over where he found himself. To this, the Court seemed to suggest that the defendant did have a choice: when he was sober, he chose to have that first drink. Whether or not the compulsion of his alcoholism took over from there, the law anchored its finding of guilt in that initial exercise of free will. His voluntary act, his actus reus, was that first lift of the glass.
So here is the philosophical question that my classmate was raising: why did the Court agree that free will was eliminated under the influence of drugs but not under the influence of addiction? Why was it cruel and unusual to punish a person for the status/disease of narcotics addiction but not for giving in to the compulsion to drink that accompanies the status/disease of alcohol addiction? The question takes seriously the law’s requirement that a defendant truly intends to commit a crime. This isn’t a purely academic or philosophical requirement of criminal law. According to Justice Robert H. Jackson it is, “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Freedom, human will, good and evil. These are not easy to teach or litigate but they are ubiquitous in the law. Consider a third case reflecting a related logic, this time from tort law:
A ship docked at a wharf during a storm and violent waves caused the ship to damage the wharf. The dock owner sued the ship owner and won. This rule emerged from the case: If a ship is caught in a storm and is thrown against a dock, the ship is not liable; if a ship docks with a wharf during a storm, breaks loose from the dock, and damages another boat or dock, the ship is not liable; but if a captain chooses to dock her ship with a wharf to avoid damage to the ship, to other boats, or to other docks, and it then damages the wharf to which it’s docked, the ship is liable for those damages.
This rule is a bit baffling because one of the organizing principles underlying tort is “no liability without fault,” the idea that no defendant should be found liable if they were not at fault. This conforms with the fairly common requirement of mature systems of criminal law that Justice Jackson described. Substantial swaths of tort law do contravene this principle, but they do so for policy reasons: deterrence, cost-spreading, or efficient compensation for injury.
But in this case, the ship captain was not found to be at fault; the court agreed that what he had done was entirely reasonable and appropriate. Furthermore, the policy reasons for finding him liable would also logically apply to the situations the court found to be free from liability. Crucially, those alternative possibilities were “acts of god,” whereas the captain had made the decision to dock his ship. Through choice, he incurred liability.
This is an old idea: free will as the source of guilt. Christian theology came to this conclusion in the fifth century while working through what is known as the evidential problem of evil. This was the puzzle for Christian theologians:
- God is all-powerful (omnipotent), all-knowing (omniscient), and all-loving (omnibenevolent).
- There is evil in the world.
- How can an omnipotent, omniscient, omnibenevolent God allow evil to exist in the world?
The answer was free will. God gave humanity free will and it was the perversion of this will that introduced evil into the world. Furthermore, free will and knowledge are inter-connected because of where it all started: with Adam and Eve choosing to eat from the tree of the knowledge of good and evil.
Original sin, free will, the human capacity to know good and evil, and the Fall from Grace are all implicated in the Anglo-American legal tradition’s conception of guilt. The criminal law doctrine requiring a voluntary act for guilt, along with its tort law analogue of “no liability without fault,” might better be understood as “no liability without the Fall,” i.e. no liability without free will. Clear markers of guilt, fault, right, and wrong are helpful to the law, but they are not necessary for it to make judgments of moral blameworthiness. Choice is the essential prerequisite.
In light of this, it becomes clear that the law is not always as concerned with philosophical coherence as it is with the integrity of its inherited vision of divine order. Within that order, punishment is first and foremost about the exercise of free will. Knowledge of good and evil is of secondary importance. That priority helps to explain the distinctions between a status offense and being found drunk in public, between the generalized loss of free will in narcotics addiction and the willful exercise of raising a glass in alcoholism, and between passively allowing your ship to wreak havoc or choosing to minimize the havoc. Failure to anchor moral judgment in free will would divorce the logic of legal authority from the logic of divine authority. This would compromise the bench’s air of clerical mystery and weaken its ability to speak ex cathedra. Divergence from more modern conceptions of free will and moral culpability are less damaging to the institution.
The Jesuit philosopher, geologist, and paleontologist Teilhard de Chardin called the human being “matter at its most incendiary stage,” referring to the unparalleled capacity and complexity of the human mind. Thinking of the human mind as a blaze puts Eve–who started this great moral drama of consciousness and free will–in the pantheon of demi-gods, tricksters, and heroes who stole fire from the Gods and gave it to humanity. Myths from cultures around the world celebrate the theft of fire, but they also warn of the consequences for the rebel-thief. Prometheus, the most famous fire thief in Western culture, was sentenced to eternal torment for his crime.
So if you are discussing a case in class and it feels as though we are all still serving sentences for transgressions from another lifetime, you might also have a philosophical question to raise. Go ahead and voice it. Or don’t. It’s your choice.
Ian Ramsey-North is a first-year student. He loves to hear from readers: email him at firstname.lastname@example.org.