BSilvEsq
Junior Member
- Joined
- Oct 31, 2025
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- Basic Beliefs
- Determinism, Stoicism, Buddhism
I can't argue in court that as the bank robbery last week is in the immutable past, I therefore had no choice but to commit that robbery. (Well, I could, but only if I wanted to plead insanity).
You are 100% correct about that. Well, actually, you can argue a determinism / lack of free will defense, but the Judge will disagree as a legal matter without regard to whether you are factually correct.
Interestingly, although lack of free will has been used mainly with respect to the defense of insanity (as you suggest), the defense of lack of free will also has been asserted and rejected in other legal contexts. When that has occurred, Courts have acknowledge their inability to resolve ultimate questions of determinism or free will, and have elected to treat defendants "as if" they had free will without regard to whether that is, in fact, accurate, on account of the ramifications of electing otherwise.
In 2005, Michelle Cotton wrote a very thoughtful and well researched article, titled “A Foolish Consistency: Keeping Determinism Out of the Criminal Law.” The article was published in Volume 15 of the Public Interest Law Journal, a publication of Boston University. The article begins with the following statement: “The criminal law is said to be founded on the idea that persons can be held responsible for their actions because they have freely chosen them, rather than had them determined by forces beyond their control.” The article reflects a pragmatic resistance, if not animosity, within American jurisprudence to the notion that human conduct is the product of determinism and not free will. Inasmuch as freedom of thought and expression lies at the core of the United States Constitution, it is unsurprising that American jurisprudence would be built on a view that people are personally responsible for their actions and reject the view that our actions are directed by forces beyond our control.
Consistent with Cotton's observations, Oliver Wendell Holmes wrote in 1881 that criminal responsibility must be based on volitional action, and that the lack of free will, for whatever reason, would be problematic for criminal law. As a Law Review article published more than a century later states: “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.” J. G. Moore, “Criminal Responsibility and Causal Determinism,” 9 Wash. U. Jur. Rev. 43, at p.43 (2016, corrected 2016) (citing Oliver Wendell Holmes, Jr., :The Common Law,” at 31 (American Bar Association, 2009) (1881)).
Employing the same line of reasoning as Justice Holmes, Clarence Darrow regularly relied upon a form of deterministic argument to defend his clients. In a famous case involving two youths known as “Leopold and Loeb,” Darrow incorporated Determinism into his defense of his clients’ alleged cold-blooded and premeditated murder of a young boy. Among other things, Darrow argued in his closing statement to the jury on August 22, 1924, as follows:
Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.
. . .
I know, Your Honor, that every atom of life in all this universe is bound up together. I know that a pebble cannot be thrown into the ocean without disturbing every drop of water in the sea. I know that every life is inextricably mixed and woven with every other life. I know that every influence, conscious and unconscious, acts and reacts on every living organism, and that no one can fix the blame. I know that all life is a series of infinite chances, which sometimes result one way and sometimes another. I have not the infinite wisdom that can fathom it, neither has any other human brain. But I do know that if back of it is a power that made it, that power alone can tell, and if there is no power then it is an infinite chance which man cannot solve.
Twenty-two years earlier, in 1902, Darrow gave a speech to the inmates at the Cook County jail in Chicago. In his speech, Darrow asserted, among other things, the following:
The reason I talk to you on the question of crime, its cause and cure, is because I really do not in the least believe in crime. There is no such thing as a crime as the word is generally understood. I do not believe there is any sort of distinction between the real moral condition of the people in and out of jail. One is just as good as the other. The people here can no more help being here than the people outside can avoid being outside. I do not believe that people are in jail because they deserve to be. They are in jail simply because they cannot avoid it on account of circumstances which are entirely beyond their control and for which they are in no way responsible.
. . .
Let us see whether there is any connection between the crimes of the respectable classes and your presence in the jail. Many of you people are in jail because you have really committed burglary. Many of you, because you have stolen something; in the meaning of the law, you have taken some other person’s property. Some of you have entered a store and carried off a pair of shoes because you did not have the price. Possibly some of you have committed murder. I cannot tell what all of you did. There are a great many people here who have done some of these things who really do not know themselves why they did them. I think I know why you did them — every one of you; you did these things because you were bound to do them. It looked to you at the time as if you had a chance to do them or not, as you saw fit, but still after all you had no choice. There may be people here who had some money in their pockets and who still went out and got some more money in a way society forbids. Now you may not yourselves see exactly why it was you did this thing, but if you look at the question deeply enough and carefully enough you would see that there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions that we take.
. . .
There is one way to cure all these offenses, and that is to give the people a chance to live. There is no other way, and there never was any other way since the world began, and the world is so blind and stupid that it will not see. If every man and woman and child in the world had a chance to make a decent, fair, honest living, there would be no jails, and no lawyers and no courts. There might be some persons here or there with some peculiar formation of their brain, like Rockefeller, who would do these things simply to be doing them; but they would be very, very few, and those should be sent to a hospital and treated, and not sent to jail, and they would entirely disappear in the second generation, or at least in the third generation.
Following Darrow’s lead, a few years after the Leopold and Loeb trial, a sociology professor at the University of Pennsylvania’s Wharton School wrote an article titled “A Deterministic View of Criminal Responsibility,” which was published in the Journal of Criminal Law and Criminology. The conclusion of the article is as follows:
Neither determinism nor libertarianism, in the opinion of the present writer, can ever have more than a pragmatic justification. Nor will the last word ever be said on the subject, for probably there will always be those who emphasize the uniqueness of the individual's inner experience, and these tough-minded and extroverted persons who fasten their attention upon the regularities of human conduct. The present paper is therefore simply an attempt to show the relative superiority of determinism for (1) the understanding of the facts of human experience, even those brought forward as proofs of libertarianism, and (2) the control of human behavior.
Willard Waller, “Deterministic View of Criminal Responsibility, A, 20 Am. Inst. Crim. L. & Criminology,” at 88 (1929-1930).
More recently, J.G. Moore (a philosopher and law student) published a thesis article (for his law degree) examining the relationship between Determinism and criminal law. Among other things, Moore examined the writings of Peter Van Inwagen, who is one of the most significant modern advocates of Hard Determinism (i.e., Determinism is true, and Determinism rules out the existence of Free Will). In that connection, Moore wrote:
If causal determinism is true, then decisions and actions of agents are the consequence of events that happened before they were born, together with the laws of nature. However, it is not up to them what happened before they were born, or what the laws of nature are. Therefore, the decisions and actions of agents are not up to them.
J. G. Moore, “Criminal Responsibility and Causal Determinism,” 9 Wash. U. Jur. Rev. 43, at p.52 (2016, corrected 2016) (citing Peter Van Inwagen, “An Essay on Free Will,” at 16 (1983)).
Consistent with the foregoing, the U.S. Supreme Court wrote in Steward Machine Co. v. Davis, 301 U.S. 548, 590:
The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems. The wisdom of the hypothesis has illustration in this case.
See also:
State ex rel. H. v. Dostert, 165 W. Va. 448, 461-463There is no alternative in our efforts to reconcile the competing goals of the juvenile justice system but to enter reluctantly into a brief discussion of the age-old philosophical controversy about free will and determinism. 10 Neither this Court nor anyone [**411] else in the world will ever definitively answer the question of whether mankind is determined or is possessed of free will. The philosophy of the law has generally accepted that at times people are determined while at other times they have free will. Pragmatically our legal tradition has answered the question by rules which recognize that men are guided entirely neither by external forces nor by free will; every person is influenced by both but is never totally controlled by either.
Goldberg v. R. Grier Miller & Sons, Inc., 408 Pa. 1, 6-7For many centuries there has been a philosophic debate between the respective proponents of determinism and free will, but it should be quite obvious that if there were no ree will, there could be no reason for courts since in that event neither plaintiff nor defendant could have done anything to avoid what was already destined to take place. If there were no free will, every criminal penalty would be unjust, and thus even Adolf Eichmann would have to be a subject of sympathy instead of one of eternal loathing.
Shirley v. State, 149 Ga. App. 194, 201-202Legal insanity is a complete defense for criminal acts committed during such period of insanity. Code Ann. §§ 26-702, 26-703. However, psychiatrists and lawyers disagree as to the correct basis for criminal responsibility. Lawyers assert that an individual has the option to make a choice to obey the law or to disobey the law, that is -- he has a "free will." Psychiatrists advance the theory of pre-determined choice of the individual -- called "determinism." Guttmacher & Weihofen, Psychiatry and the Law 402; 45 ALR2d 1447, § 2 (a). From this basic disagreement, we advance to the critical discord in the choice of words when formulating a criminal responsibility (insanity) test. Psychiatrists properly complain that the words chosen by lawyers and legislatures for insanity statutes have no basis in [*202] psychiatric theory or fact. Thus, they argue that "[t]he psychiatrist's job is to match the defendant's mental state to the formula and to report his opinion to the jury . . ." Davison, Forensic Psychiatry 3. In other words, the psychiatrist determines the question of a defendant's sanity using psychiatric criteria and then translates it into whatever legal language is required by statute. Dr. Zilboorg, a noted forensic psychiatrist is quoted as saying: "To force a psychiatrist to talk in terms of the ability to distinguish between right and wrong and of legal responsibility is -- let us admit it openly and frankly -- to force him to violate his Hippocratic Oath . . . to force him to perjure himself for the sake of justice." Guttmacher & Weihofen, Psychiatry and the Law 406.
United States v. Chandler, 393 F.2d 920, 929The criminal law exists for the protection of society. Without undue harm to the interests of the society it protects, it can exclude from its moral judgments those whose powers of intellect or will are so far impaired that they have no substantial control of their conduct. It can afford, too, elimination of the last vestiges of the notion of punishment for [**26] punishment's sake and a further implementation of the principles of rehabilitation, deterrence and, whereever necessary, the ultimate isolation from society of those individuals who have no capacity for the adjustments necessary to conform their conduct as active members of a free society to the requirements of the law. The law may not serve its purpose, however, should it embrace the doctrines of determinism. Should the law extend its rule of immunity from its sanctions to all those persons for whose deviant conduct there may be some psychiatric explanation, the processes of the law would break down and society would be forced to find other substitutes for its protection. The law must proceed upon the assumption that man, generally, has a qualified freedom of will, and that any individual who has a substantial capacity for choice should be subject to its sanctions. At least, we must proceed upon that assumption until there have been devised more symmetrical solutions to the many faceted problems of society's treatment of persons charged with commission of crimes.
