Alan Norrie, ‘Freewill, Determinism and Criminal Justice,’ Legal Studies, 1983

One of the most extensively debated topics in philosophy and science emerges from the tussle between free will and determinism. This debate has been the subject of numerous films and has added complexity to the storytelling. Steven Spielberg’s dystopian film, Minority Report, and films from the Matrix franchise artfully weave components of free will and determinism into their plots and depict the friction that exists between them. The free will philosophy is based on the presupposition that individuals are autonomous beings whose decisions and actions are products of their free choice. This is contrary to the view taken by determinists, that is, scientific laws influence an individual’s behaviour and therefore, an individual’s decision can never be the outcome of pure free will. 

Scholars have engaged with the free will versus determinism debate since centuries and are nowhere near putting it to rest. Fascinating and thought provoking questions emerge from this debate. This debate has a bearing on multiple disciplines including criminal law and justice. 

The article ‘Freewill, determinism and criminal justice’ has been authored by Professor Alan Norrie, Professor of Law at School of Law, University of Warwick. He is a noted legal theorist with significant contributions to scholarship in critical legal studies. In this piece, Professor Norrie examines the free will versus determinism debate through the lens of criminal justice. Free will and determinism are both pivotal to criminal justice, with the former providing the rationale for criminal responsibility and the latter providing justifications for certain excusing conditions for criminal responsibility. Typically, individuals are punished for actions undertaken as a result of free will. Actions undertaken under the influence of determinist factors usually entail a reduced form of criminal responsibility. The consideration of mitigating factors such as mental illness, social circumstances, etc. at the sentencing stage of a case is a classic example of consideration of determinist factors.

In his article, Norrie examines two defences for the legal form, which he defines as ‘the law’s insistence on the freedom of the will as the basis for doing criminal justice.’ The first defence is H.L.A. Hart’s claim that free will and determinism are compatible. The other is Anthony Kenny’s claim- that determinism as a hypothesis is incoherent and therefore, poses no threat to free will. Both Hart and Kenny allude to determinism being a hypothetical doctrine and this seems to irk Norrie. Norrie defends the legitimacy of determinism. He argues that determinism is a coherent doctrine and it cannot coexist with free will. He explains that this validity of determinism as a hypothesis leaves criminal law susceptible to criticism and reduces the idea of criminal justice to a mere illusion. If a person’s actions are determined, they cannot be responsible for those actions. Therefore, punishing them for those actions would be unjust.

Norrie scrutinises Professor H.L.A. Hart’s arguments in Legal Responsibility and Excuses. Hart suggests that freedom of choice remains the basis for responsibility even if determinism is assumed to be true, save circumstances involving overt coercion. Norrie identifies the paradox and incoherence in Hart’s arguments by contextualising them in duress. Unlike Hart, he believes that the principle behind considering duress as an excuse is that an individual’s “choices do not remain choices.” Duress is an excuse for an activity done by a person at gunpoint simply because the ‘choice’ so made by the person at gunpoint would not really be a choice.

Kenny roots his argument in psychological determinism, which considers the behaviour of an individual to be determined by their wants or mental state, which in turn is considered to be determined by social causes. He argues that psychological determinism is incoherent because the want of an individual cannot be separately identified from the physical event that it manifests in. Norrie deftly attacks Kenny’s argument. While he acknowledges that an individual’s want cannot always be separately identified from the action, he argues that they can be ‘analytically separated’ in order to explain an individual’s action. For instance, the act of writing an article may or may not involve a person deliberating over what they want to write; but for the purposes of explaining the act of writing, the mental element of wanting to write and the physical act of writing can be distinguished. Norrie further argues that scope of enquiry should not be to determine if wants influence actions, but rather a more preliminary assessment of whether wants are themselves determined.

Norrie discusses the implications of determinism on criminal justice. He opines that while distinctions of kind may be drawn between duress and other determining factors such as economic, political and social insecurity and police harassment, no distinction can be drawn in principle. He argues that the boundaries of determining factors need not be restricted to threats, but should be expanded to include temptations as well as temptations can also motivate individuals to break the law. Finally, Norrie asserts that the legal form does not meet the requirements of individual justice, that is, intentions of individuals should not be separated from their motives. He contends that lawyers operate within the model of abstract rationality, i,e., reasons that they attribute to acts of individuals are divorced from their social and individual context. In doing so, lawyers consider only the intentions behind actions and not the motivations. This ignorance of  an act’s motive results in the act being decontextualised or being ‘abstracted’ from its social and other contexts. Norrie argues that a law affixing criminal responsibility should not ignore motives as motives provide the link between intended actions and their causes. Individual justice requires that the individual’s action be contextualised. Thus, the legal form fails in meeting the requirements of justice to individuals and renders the idea of justice merely illusory.

Additional reading recommendations:

  1. Michelle Cotton, A Foolish Consistency: Keeping Determinism out of the Criminal Law, Boston University Public Interest Law Journal, 2005-2006
  2. Lawrence Newman, Duress, Free Will and the Criminal Law, Southern California Law Review, 1957
  3. Matthew Jones,  Overcoming the myth of free will in criminal law: The true impact of the genetic revolution, Duke Law Journal, 2002
  4. Stephen Schafer, The Problem of Free Will in Criminology, Journal of Criminal Law and Criminology, 1977