As the notion of free will and rationality depend upon an array of criminological, sociological and philosophical perspectives this essay was to be contrasted through various seminal works that had inspired various perspectives and critiques with regards to the notion of criminal law. In an attempt to draw out these perspectives it was decided to first look at the birth of rationality. In the age of the enlightenment and with the birth of rationality came the absolute principle of judgement. This notion of judgement quickly moved to become the central notion in the philosophical and legal realm. With the role of judgement being at the heart of law and legality, this new philosophical emphasis on judgement and it’s validity in every sense applied to the idealistic principles of rationality. With the divine rule of kings long since dismissed seminal rational philosopher Immanuel Kant began his Critique of Judgement, which defined these basic principles, from which all judgements from a rational perspective had to apply. Writing on the notion of rational judgement Kant separated what could be considered a law with solid grounding and what could be considered a matter of taste, surmising that,
‘If we wish to discern whether anything is beautiful or not, we do not refer the representation of it to the object by means of understanding with a view to cognition, but by means of the imagination (acting perhaps in conjunction with understanding) we refer the representation to the subject and it’s feeling of pleasure or displeasure. The judgement of taste, therefore, is not a cognitive judgement, and so not logical, but is aesthetic – which means that it is one whose determining ground cannot be’ (Kant, 1978, p.41).
Of course what Kant was writing about here was a notion of judgement that related to taste and not whether or not it was related to moral freedom. However, the question he raised with this distinction was with regard to whether or not the notion of law and its validity were inextricably linked to morality and liberty. According to the ideals of rationalism the principles of judgements, which formed the foundation of law, were to be found between the determining of understanding and the aesthetic of taste. For Kant, Law was to be determined by that which could be understood and determined by the ideals of rationality, whereas the judgements of taste were to be left to the individuals own freedom of choice. Writing against the truth held in judgements imposed by rationalist ideas, radical empiricist and libertarian John Mills introduced the notion of indefinable experiences that could not be accounted for by the ideals of rational law. Subsequently, Mill’s suggested that the only justification for limiting one’s personal freedom was to prevent the restriction of another person’s personal freedom (Hamlyn, 1987). This deviation from a universal determination of the world and it’s laws to the perspective of a society of individuals living out their lives of unique experience and subjective values could be viewed as having one fundamental concern – when does the judgements and values of one persons experiences impact upon the other.
Mills subsequently suggested the notion that one must not impinge upon another’s liberty as a universal law. Essentially, the role of the law was to act as an objective guardian protecting the liberties of the individual from being impinged upon by the liberties afforded to others. As Mills suggests that we are organisms that live within our own subjectivity experiencing life through the uniqueness of individual experience, then to apply an objective set of morals, ethics and values to that person would be restricting that liberty and that experience. This means that the only way of applying law to the true state of our nature and individual experiences would be to do so without any particular individual’s own moral code. In essence, for Mill’s the law must be devised with only the notion of protecting one’s liberties, values and uniqueness of experiences, whilst preserving the physical and psychological space of others living in that same condition. This meant that the law was not to be concerned with the subjective morality of the individual as its only purpose was to determine whether or not someone’s liberty was being protected. It’s only function then was to be an objective judicator of maintaining a liberal condition and keeping those who wished to impose themselves or abuse that liberty from doing so. It was then agreed by both rationalist and empiricist alike that all law must be based upon rational principle inscribed into law that must be at the heart of any society. This would suggest that the criminal is rational and is able to commit a crime as an act of free will. However, the concept of the law itself may change this.
In his book associated with the actualities of a societies law and the rationality of that law, H, Hart suggested that it was without imperatives that the law had to be validated if it was to give man a free will from which to commit a rational crime. In his text The Concept of Law, Hart suggested that,
‘The foundations of a legal system consisted of the situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves obey no one.’ (Hart, 1961, p.100)
Though keen to point out that this was a blurred and misleading concept, he still placed it as a significant contributor to the concept of the law, affirming that,
‘This social situation is for this theory both a necessary and a sufficient condition of the existence of law’ as it does contain ‘certain truths about certain aspects of law.’ (Hart, 1961, p.100)
This positioning of the law as an imperative based enforcer of rationally determined principles that presided over society and the liberties of the individuals in that society is suggested by Hart not to be put forward by the policeman or any citizen of society, but rather through coercive imperatives that are adhered to and shaping of the society. In this sense, we can see that law is an established in Hart’s concept of law. It is not informed by society or morality as traditional Marxist criticism would have suggested (Morgan & Reiner, 2006). Rather it is fuelled by a coercive will all of its own. Neither is it particularly protective of the individuality or their experiences for Hart. Rather, it is, for purposes of its own design, instilling an idea of a way of being and creating notions of societal norms, whilst creating a condition for society to live within. This is not one that is enforced through morality or informed by society but one that enforces a morality which then informs and dictates to society an oppressive way of being. Hart seems to suggest that it is not through the individual within the society that the imperatives of the law are distributed, but through the idea of the law itself. Instead of this law representing the morality, virtues, politics and ethics of the society or the individual put forward by an authority, it is instead achieved through a coercing of individuals within the society into a way of being, whilst creating the very condition in which that being then lives out its life. Speaking on this notion of coercion and the insignificance of an individual’s imperatives, Hart suggests that,
‘These simple situations are not, and could not be, the standard way in which law functions, if only because no society could support the number of officials necessary to secure that every member of the society was officially and separately informed of every act which he was required to do’ (Hart, 1961, p.21)
With this flaw in the application of law through individual and societal enforcement, Hart then turns to the ways in which this coercive action would actually work, saying that,
‘Instead such particularised forms of control are either exceptional or are ancillary accompaniments or reinforcements of general forms of directions which do not name, and are not addressed to, particular individuals, and do not indicate a particular act to be done’ (Hart, 1961, p.21)
This accounting for the ideas pertaining to law and the accompanying officials of law was believed by Hart to be essential to the maintenance of the society and its protection of every person’s liberty. Reconciling the role of subjective experience and objective reality found in the philosophies of the empiricist Mill’s and the rationalist Kant, Hart suggested that it was essentially the ideology of the law that shapes our consciousness and experiences and, perhaps most importantly, our actions. Therefore, he suggested that the law should render the person free from any complex ideological thoughts such as morality. However, and what is fundamental to Hart’s statement and belief that the validity of law should be independent of whether it is moral or just, is that the law itself defines our morality. We can see then that what is essential to Hart’s philosophy is that law itself is the prevalent and determinate factor in a society and that societies condition from which morality and ideas spring should be preserved through coercion instead of a presiding moral authority. Under its guardianship and through implementation of the protection of others liberties achieved through reinforcement and coercion, the individuals within the society will subject themselves and understand the roles defined by the correct and the criminal given by rational choice. For Hart, the law defines the roles in society of the privileged and misfortunates alike through defining what is criminal and what is not in a social context. The law then defines what the consequences for criminality are, which is understood by everyone through the established rational ideology that it perpetuates throughout the society thus creating moral choice as its condition. It is with this condition that Hart can then say and lay legitimate claim to the notion that a crime is committed because the criminal is a rational being, able to make the decision to offend as an act of free will. This is made clear in Hart’s reasoning of the failings in Devlin’s pro judicial argument that “society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence.” (Devlin, 1965). Hart suggests that,
“No one should think even when popular morality is supported by an ‘overwhelming majority’ of marked by widespread ‘ intolerance, indignation, and disgust’ that loyalty to democratic principles requires him to admit that its imposition on a minority is justified.” (Hart, 1963, p.81)
This could be said to be plausible and suggests that for Hart morality is tantamount to individual and private restriction, whilst also facilitating oppression of the minority and the freedoms that Mill’s prescribed. We can see that for Hart the law is not to be impacted upon by the morality of society as this destroys the privacy and freedom of moral choice that the individual must make between civility and criminality. We can see that although he suggests that the law is a determinate of society and morality it cannot be interfered with by an interchangeable morality that will act as an imperative enforcer of morality rather than prescriber of the rational ideals of social decency. However, much criticism has also been aimed at Hart calling his approach a positivist one that denies the individual the ability to commune. One such criticism of the positivism placed by Hart’s claim that whether a law is legally valid is independent of whether it is moral or just was put forward by Jon Fuller, who began his rationale by suggesting that,
‘The analytical positivist sees law as a one-way projection of authority, emanating from an authorized source and imposing itself on the citizen. It does not discern as an essential element in the creation of a legal system any tacit cooperation between lawgiver and citizen — morally or immorally, justly or unjustly, as the case may be. The positivist philosophy asks of law not what it is or does, but whence it comes. Its basic concern is with the question, ‘Who can make the law?’ (Fuller, 1964, p.192)
With this notion, Fuller attacked the grounding position in Hart’s rationale that suggested, like Mills, that the law was only concerned with social harmony and the coercive enforcement of Mill’s idea of protecting people’s right to have their freedoms preserved. Unhappy with the notion that the philosophical enquiry into the nature and concept of the law should be primarily concerned with the rights of the individual in their free state and not the effects that societies had on the individual, Fuller introduced a notion of human aspiration and duty from which he believed the law should act as an agent. Returning to the Kantian principles of rational judgement and away from the empirical principles of Mills objective experience, Fuller suggested that the notion of duty and aspiration were inscribed by that law. As opposed to leaving the individual to their own free private morality fuelling alienation, Fuller suggested that their subsequent duty and aspirations must be guided and prescribed by the law. Engaging with this reality Fuller reasoned that,
‘As soon as contributions are designated and measured, which means as soon as there are duties, there must be some standard, however rough and approximate it may be, by which the kind and extent of the expected contribution is measured. The standard must be derived from the pattern of a social fabric that unites strands of individual action. A sufficient rupture in this fabric must, if one is to judge the matter with any rationality at all, release men from those duties that had as their only reason for being maintaining a pattern of social interaction that has now been destroyed.’ (Fuller, 1964, p.22)
We can see from this that Fuller is suggesting that the law must act as a standard of the society and its duties and aspirations understood by the individual in relation to societal law. We can also see that for Fuller the social standard, which is the law, is the fabric of human freedom within the society and one which if torn when the failing of duty destroys the ideals of reason and rationality. In this opposition to Hart’s emphasis on the law as being free of morality and justice and thus making an offence an act of free will, we can see that fuller is giving a different perspective to law and criminality. Instead of the law being the coercive, invisible force creating social harmony through rational principles, whilst protecting the minority through no singular code of morality, Fuller is identifying law itself as the basis for the ideology of a society with an emphasis on what it is to be human and to live in a condition that permit’s the duties and aspirations that a social morality enforces by its law. This can be seen as a reaction to the notion that rationality can not be representative of all of the individualistic people who subscribe to their own principles in a society of diversity. Although appreciative of the emphasis placed upon the freedoms of the individual within the society, Fuller suggests that the individual is defined by their relationships with one and other within a social construct and the positive notions of diversity and individual freedom make the society divided and exclusive, which in turn breeds criminality and dispersion from the rational notion of the law that is deemed fit to provide a harmonious human existence from which all can choose their options equally. With this Fuller argues that morality should be inscribed into the heart of the law as rationality cannot represent everyone and freedom to choose is elusive. Concluding on the significance of these principles and how they affect the society, Fuller states that,
‘Within a functioning community, held together by bonds of mutual interest, the task of drafting a moral code is not difficult. It is comparatively easy to discern in this situation certain rules of restraint and cooperation that are essential for satisfactory life within the community and for the success of the community as a whole. If, however, there are no rational principles for determining who shall be included in the community, the internal code itself rests on what appears to be an essentially arbitrary premise. The solution to this dilemma cannot be obtained from the morality of duty for that morality is essentially a morality of the in-group. It presupposes those in living contact with one another, either through an explicit or tacit reciprocity embodied in the forms of an organized society.’ (Fuller, 1964,p.186)
We can see from his conclusion that Fuller is deeply concerned with rationality and social realism. Incorporating the emphasis placed upon the society as a community and the law as a way of reflecting the standards, virtues and morality invested in the society, we can see that Fuller refutes the role of empiricist rationale and the privacy of the individual that is left to determine its own separatist way of being devoid of the social exchanges that bind our choices. Essentially, for Fuller the law is intrinsic to society and society intrinsic to law. Unlike, Hart, who suggests that the ascription of morality within law is the subjugation of the minority to the imperative rational will of the majority, Fuller places much emphasis on the greater good of society saying that ‘law should stand the scrutiny of reason and stress the importance of good order’ (Fuller, 1958). In summary and contrast to Hart’s legal positivism, the legal principles outlined by Fuller go some way to emphasise the importance of legal recognition within the society. Essentially, without the interactive process of individuals and institutions within the society and the importance he places upon reciprocity that recognises the role that the law plays in making possible an effective realisation and idealisation of rational principles then a crime is directly representative of the social reality that the individual is immersed within. For Fuller, to distinguish between the morality of duty and the morality of aspiration is to attempt to create a legal system where a tacit cooperation between the law and the individual regarding what is civil and what is criminal, what is just and what is unjust is directly determined by each individual sociological reality.
Weakening the case of the criminal as a rational being the schools of legal realism suggested that it was the laws themselves that determined guilt. They suggested that the terminology of law and the values of that law were not based upon a rationally governed principle of objectivity but on the experience, observations and experimentations so as to be considered real. Embracing this empirical rejection of rational free will taken by the legal realists, the Scandinavian realist movement also rejected these principles of ideological rationality in the pursuit of experiential validity. Philosopher and Law theorist, Hägerström attacked the various applications and concepts of legal terminology in his writings so as to prove that they could not stand up to any objective, rational and scientific truth. Borrowing a rationale from the likes of the experiential philosopher Friedrich Nietzsche, he suggested that moral terms such as ‘right’ and ‘duty’ were fundamentally meaningless as they could not be scientifically verified or proven. This meant for Hägerström that judgements belonged to only those with the power to determine their meaning. This idea can be seen in Nietzsche’s critique on the meaning behind the convention of judgements when he declared that,
‘Under what conditions did man devise these value judgements good and evil? And what value do they themselves posses? Have they hithero hindered or furthered human prosperity? Are they a sign of distress, of impoverishment, of the degeneration of life? Or is there revealed in them, on the contrary, the plentitude, force, and will to life its courage, certainty, future?’I departmentalised my problem: out of my own answers there grew new questions, inquiries, conjectures, probabilities – until at length I had discovered a country of my own, an entire discrete, thriving, flourishing worlds, like a secret garden the existence no one suspected – Oh how fortunate are we men of knowledge, provided only that we know how to keep it silent long enough!’ (Nietzsche, 1991, p.17)
Following the ideas of Nietzsche, Hägerström reasoned that these morals were the premise of conventional power made to subjugate and oppress those of presumed ‘lesser virtue’ (Nietzsche, 1991, p.17). Through his application of Nietzschean existential logic and criticism, Hägerström was able to suggest that although the words themselves may have influence or have the ability to direct a person who obtains the moral and judicial position to judge, the terms themselves could not to any degree stand up to a factual test and so were considered by him as the premise of fantasy. Further empirical inquiry into the notion of realism was attempted by Alf Niels Christian Ross. Alf Niels Christian Ross stated that there was no priori validity that Kant had presumed and therefore could not be applied to reason that would give the law a valid judgemental position, as was put forward by Hart in his concept of law. Again, he expressed that experience served as a guideline for all judgements but could not be seen as being a rational choice. This meant that the validity of the reasoning ‘to give to everyone his own’, had no significance until what actually belonged to someone could be determined, which meant that this was a matter of belonging to the ‘begging’ of a ‘question’ (Ross, 1958, p. 276). With this rationale, Alf Niels Christian Ross’ realist treatment of the law meant that the law itself did not rely on anything but the facts, which lead him to his seminal statement ‘the legal rule is neither true nor false; it is a directive.’ (Ross, 1958, p. 2). This meant that the reality of the law was societal rather than rational, as reality was a social one. Essentially, without the ability to discern what was in actual fact, meant that the judger of any law had to measure the law against any true realism, which was only known to the experiential knowledge of any person living within a particular social reality. He concluded rather cuttingly by stating in opposition to Hart that the ‘norm’ was directed at the ‘judges’ rather than at the ‘citizens’ (Ross, 1958, p. 33).
In this approach to realism and its application to the concept of law we can see that the Scandinavian realists oppose any notion of rational law and liberal freedom from which to choose. In essence, laws and morality are the ideological apparatus of the societies that house the individual and form the guiding realities of the people within these societies. Essentially, for the Scandinavian realists to apply a universal law based upon the principles of rationality would be defeating the actual experiential realities that the people were living in by subjecting them to an idealistic and imaginary notion that everyone could be found measurably and equally as guilty of breaking a law. Attacking the notion of rational freedom, which suggested that everyone understood a base sense of right and wrong from which social rules could be applied, Alf Niels Christian Ross stated that,
“Like a harlot, natural law is at the disposal of everyone. The ideology does not exist that cannot be defended by an appeal to the law of nature. And, indeed, how can it be otherwise, since the ultimate basis for every natural right lies in a private direct insight, an evident contemplation, an intuition. Cannot my intuition be just as good as yours? Evidence as a criterion of truth explains the utterly arbitrary character of the metaphysical assertions. It raises them up above any force of inter-subjective control and opens the door wide to unrestricted invention and dogmatics.” (Ross, 1958, p. 261)
We can see from this then the limitations of applying objectivity put forward in the rational approach to freedom. Similarly we can see that it rejects the morals imposed by a mono directional categorisation of definition that presumes righteousness across all of society and to each and every individual without consideration of social constraints. We can also see that it does not take into account the various real experiences of the individual that is informed by their social environment and that differs from person to person. This notion of the individual as committing a crime because s/he is a rational being, able to make the decision to offend as an act of free will seems unwelcome here. Furthermore, we can see examples in the law itself. For instance, in the Card et al text entitled Criminal Law, we can see various inscriptions in law such as the premise of liability, whereby rational awareness is not required. For example, it is clearly stated that,
‘In many offences the defendant may be convicted although it has not been proven by the prosecution that his conduct was intentional, knowing, reckless or negligent with reference to a requisite element of the offence charged. In such cases, a person is liable to punishment in the absence of any fault on his part in respect of the element(s) in question and is said to be under strict liability’ (Card et al, 2004, 5.1)
From this we can clearly see that the issue of committing a crime as a rational being decided out of free will is presumed by the law as the criminal’s intentions are overlooked in terms of liability. From the moment of conception, the citizen is presumed a rational being, part of a social contract that makes him liable to maintain to that contract on punishment of that law. We can see here that this is the premise of Kantian rational principles and the starting point for what Hart considers the basis for the concept of law. Essentially, in the eyes of the law, the individual is liable to a social contract and is considered criminally responsible for their actions with regards to others within that society. However, as we have seen throughout, there is great concern regarding the mitigating circumstances that position the subject of the law as not having free will to choose. And we have also seen that the principles of rationality and social contracts are ideological and not innate. So in summary it cannot be truly stated that a crime is committed because the criminal is a rational being, able to make the decision to offend as an act of free will.