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Published online by Cambridge University Press: 06 February 2018
This paper discusses cases in which defendants were coerced to do something they wanted to do anyway. Through these cases a stark divergence between the legal and philosophical discussion of alternative possibilities is highlighted. The paper seeks to vindicate the legal approach to coercion and volition by showing that the legal approach could be accounted for with an epistemic version of the Principle of Alternative Possibilities, a version which is also immune to Frankfurt-type examples.
1. Frankfurter Auschwitz-Prozess, 19 August 1965, Strafsache gegen Mulka ua, 4 Ks 2/63 Landgericht Frankfurt am Main, 182, online: http://www.auschwitz-prozess.de/index.php [Bednarek] (Oral reasoning of the Chairman of the Judiciary, Hans Hofmeyer). Bednarek was accused of more than fourteen murders but he was not convicted on all counts due to lack of sufficient evidence. An accessible account of the case is available in Rebecca Wittmann, Beyond Justice (Harvard University Press, 2005) at 233-35.
2. Given that he was involved in the killing and assault of many more people, it is difficult to accept that evidence was found only of actions he performed of his own accord but never of those he was ordered to perform.
3. Note that the terms “volition” and “want,” which are common in the Philosophy of Action literature, do not introduce new requirements over and above the elements required by the Criminal mens rea. In particular, they do not require reference to the aims or motives of the action, which Criminal Law traditionally ignores.
4. Much criticism was levelled against the court’s decision to assess the defendants’ actions using the Criminal Law that was in effect when the actions were performed, namely the Nazi Criminal Code. Wittmann, for example, claims that this made “the prosecution dependent on the same standards of illegality the Nazis themselves had used to investigate criminal activity in the camps. This reliance on the letter of the law legitimated the criminal Nazi state and set a standard for illegal behavior in the 1960s Frankfurt courtroom that eerily echoed the laws of the Third Reich.” Wittmann, supra note 1 at 272.
5. See, most notably, the controversy surrounding Daniel J Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (Vintage Books, 1997).
6. §34 and §35 Strafgesetzbuch (German Penal Code).
7. See, for example, section 2.09(1) of the Model Penal Code: “It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist.”
8. “Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress.” R v Hurley & Murray, [1967] VR 526 at 543.
9. See in particular the fifth requirement, ibid.
10. R v Cole, [1994] Crim LR 582.
11. One could argue that, even without an explicit exclusion, the defence of duress does not apply to such cases (for instance, because all excuses arguably require that every defendant would not have acted the way they did but for the excuse). Such a claim, however, finds no support in the legislation or the jurisprudence of the aforementioned jurisdictions.
12. The distinction between ‘lack of actual alternatives’ and ‘lack of acceptable or reasonable alternatives’ is discussed in the text accompanying note 60 below.
13. Francis Bacon, The Elements of the Common Laws of England (London, 1630) in Works vol 8, ed by Montague (London, 1831) at 131.
14. Importantly, none of these accounts discusses the question of coinciding coercion and volition. An analogous question arises in the different context of self-defence, whenever A intends to harm B not in order to eliminate B’s attack on A but rather out of malice. See the exchange between George Fletcher, Rethinking Criminal Law (Little, Brown, 1978) at 559-62 and Paul H Robinson, Structure and Function in Criminal Law (Clarendon Press, 1997) at 102, 108-11; see also Lawrence Crocker, “Justification and Bad Motives” (2008) 6:1 Ohio State J Crim Law 277. Note, however, that whatever the rationale of self-defence is, it is not rooted in the lack of alternative possibilities and thus this discussion is not relevant to this paper.
15. “What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent, as they are in different ways in the varied cases of accident, mistake, paralysis, reflex action, coercion, insanity, etc., the moral protest is that it is morally wrong to punish because ‘he could not have helped it’ or ‘he could not have done otherwise’ or ‘he had no real choice’.” HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed (Oxford University Press, 2008) at 152. Note that Hart devoted the second chapter of his book to explaining why his approach to alternative possibilities does not require commitment to indeterminism.
16. See Moore, Michael S, Placing Blame: A Theory of Criminal Law (Oxford University Press, 2010) at ch 13.CrossRefGoogle Scholar
17. See, most notably, Victor Tadros, Criminal Responsibility (Oxford University Press, 2005) at 57-61 (and see note 45 below for the problem with Tadros’ key example).
18. “The choice theory just examined has come to be regarded as the traditional or orthodox view of excuse.” Moore, supra note 16 at 562. “The central way in which capacity is commonly considered relevant has to do with alternative possibilities.” Tadros, ibid at 57.
19. “[T]he similarities between the two defences [duress and necessity—AP] are so great that consistency and logic require that they be understood as based on the same juristic principles. Indeed, to do otherwise would be to promote incoherence and anomaly in the criminal law.” Lamer, CJ in R v Hibbert (1995) 2 SCR 973 at para 54 cited with approval in R v Ryan (2013) 1 SCR 14 at para 17. I am grateful to the anonymous referee for drawing my attention to this similarity.
20. Harry Frankfurt, “Alternate Possibilities and Moral Responsibility” (1969) 66:23 Journal of Philosophy 829 at 829.
21. The term “justifiably” is bracketed because jurisdictions vary in their approach to the required belief, namely whether it must be merely sincere or also reasonable. See the text accompanying note 54 below.
22. An important qualification to this phrasing is that a person who killed another person to save one’s own life may still be criminally responsible for murder (as in the famous case of R v Dudley and Stephens (1884) 14 QB 273 (in which two sailors whose ship sank killed and ate a 17-year-old boy after 20 days lost at sea). Identifying the rationale underlying such an exception lies beyond the scope of this paper.
23. Cf Kimberly Kessler Ferzan, “Justifying Self-Defense” (2005) 24:6 Law & Phil 711. Ferzan argues that self-defence contains objective conditions and subjective limitations, thereby locating “the appropriate epistemic vantage point in the self-defender,” and concluding that “an inquiry into the reasonableness of the defender’s belief is not required” (ibid at 714-15). See also Helen Frowe, “A Practical Account of Self-Defence” (2010) 29:3 Law & Phil 245. Like Ferzan, this paper seeks to highlight the significance of epistemic considerations. Note, however, that the analogy between the defences of duress and self-defence is problematic, partly because arguably the former is an excuse while the latter a justification, and partly because a coerced person who also wants to commit the crime is not “…doing the right deed for the wrong reason.” Fletcher, supra note 14 at 556.
24. Frankfurt, supra note 20 at 836.
25. Ibid at 835.
26. An extensive body of literature has developed around Frankfurt’s examples. See, for example, the collection of papers in David Widerker & Michael McKenna, eds, Moral Responsibility and Alternative Possibilities: Essays on the Importance of Alternative Possibilities (Ashgate, 2003). The following are but a few examples.
27. For just two examples, see David Widerker, “Libertarianism and Frankfurt’s Attack on the Principle of Alternative Possibilities” (1995) 104:2 Philosophical Rev 247 and Carl Ginet, “In Defense of the Principle of Alternative Possibilities: Why I Don’t Find Frankfurt’s Argument Convincing” (1996) 10 Philosophical Perspectives 403.
28. See, for example, Alfred Mele & David Robb, “Rescuing Frankfurt-Style Cases” (1998) 107:1 Philosophical Rev 97; Derk Pereboom, “Alternative Possibilities and Causal Histories” (2000) 14 Philosophical Perspectives 119.
29. See David Widerker, “Frankfurt’s Attack on Alternative Possibilities: A Further Look” (2000) 14 Philosophical Perspectives 181; Alfred R Mele & David Robb, “Bbs, Magnets and Seesaws: The Metaphysics of Frankfurt-style Cases” in David Widerker & Michael McKenna, eds, Moral Responsibility and Alternative Possibilities (Ashgate, 2003)127.While the intense discussion that ensued from Frankfurt’s paper has raised various important issues, this paper focuses on the original Jones4 rather than on any of the other, more complicated (and often more surreal) hypothetical examples, because they are all similar to Jones4 with respect to the feature central to this paper (the agent’s knowledge of their lack of alternative).
30. See “Freedom of the Will and the Concept of a Person” (1971) 68:1 Journal of Philosophy 5. For a critical discussion, see, for example, Gary Watson, “Free Agency” (1975) 72:8 Journal of Philosophy 205.
31. Fisher, John M & Ravizza, Mark, Responsibility and Control: A Theory of Moral Responsibility (Cambridge University Press, 1998)CrossRefGoogle Scholar at 31-34.
32. For the claim that he could have done otherwise, namely disobey and suffer the lethal consequences, see the text following note 41 below.
33. For the relation between moral and criminal responsibility, see the text accompanying note 60 below.
34. Frankfurt supra note 20 at 830-33.
35. Ibid at 831.
36. Ibid at 832.
37. Ibid.
38. Ibid.
39. Ibid at 832.
40. Notably, in Jones1 too, the agent’s volition dominates the causal pathway. However, in Jones1 the decision to act upon his volition is made prior to the coercive threat, and thus the latter cannot play a role in the causal pathway. By contrast, in Jones3, in which the decision is made after the threat is issued, the threat can play a causal role and would have influenced Jones3’s actions, had his volition been different.
41. Ibid at 834.
42. Ibid at 834-35.
43. One common strategy, known as the Conditional Analysis, is to hold that a person could have done otherwise if they would have done otherwise had they wanted to. RE Hobart, “Free Will as Involving Determination and Inconceivable without It” (1934) 43:169 Mind 1. For a forceful objection, see Peter van Inwagen, An Essay on Free Will (Oxford University Press, 1983) at 114-26.
44. Frankfurt, supra note 20 at 835.
45. Interestingly, Victor Tadros raises a similar example to Jones4, which is also meant to show that alternative possibilities are not needed for (criminal) responsibility, and Tadros’ discussion is more nuanced with regard to what the agent is responsible for. In Tadros’ example, Derek is locked in a room with a single door that he believes to be open. Through the small window, he sees his child crawling toward a pool of water but, being an uncaring parent, he lets the child go on without trying to leave the room to stop them, and the child drowns. Tadros concedes that “the fact he could not leave the room might be thought to break the chain of causation between his staying in the room and the child drowning.” Tadros, supra note 17 at 63. However, Tadros insists that “he is at least responsible for staying in the room” (ibid). While Tadros focuses on what Derek is responsible for, it is unclear what the basis for his conclusion is. Sure, Derek is responsible for not trying to leave the room. However, Tadros provides no argument as to why Derek is responsible for staying in the room if he could not have left it. On the contrary, his concession about the possible break in the chain of causation is equally applicable here: if the locked door broke the connection between his staying in the room and the drowning of the child, it also broke the connection between his not trying to leave and his staying in the room.
46. Searches were conducted in the following jurisdictions: Australia, Canada, England and Wales, Germany, Israel and the United States (though only of judgements referring to the Model Penal Code).
47. Immanuel Kant, for example, seems to hold that the process of deliberation requires the presupposition that the future is open. See Gregor, MJ & Korsgaard, CM, eds, Immanuel Kant: Groundwork of the Metaphysics of Morals (Cambridge University Press, 1998)Google Scholar at 54. The Kantian position can be understood as a psychological claim, according to which human beings are unable to deliberate while they believe there is no alternative course of action open to them. Notably, this claim seems to require the incorporation of epistemic elements into the principle governing alternative possibilities, because this explanation, too, focuses on the agent’s epistemic position vis-à-vis their alternative possibilities.
48. Frankfurt, supra note 20 at 831.
49. Ibid at 832.
50. Ibid.
51. Notably, epistemic conditions of moral responsibility have previously appeared in the literature on the PAP. McKenna and Widerker introduce an epistemic condition of moral responsibility, according to which the agent “must have had some understanding of (or at least she must have been able to understand) the moral significance of her behaviour” (supra note 26 at 2). Similarly, Pereboom introduces a condition of robustness, according to which the agent “could have willed something different from what she actually willed such that she understood that by willing it she would thereby be precluded from moral responsibility for the action.” Derk Pereboom, Living Without Free Will (Cambridge University Press, 2001) at 26. Both of these conditions assume that the agent knows they have an alternative, and focus on the agent’s understanding of the moral implications of choosing that alternative. By contrast, the E-PAP focuses on the agent’s knowledge of the very existence of an alternative.
52. It could be argued that Jones5 still lacked an alternative because of the psychological pressure created by the threat. This move would bring the PAP much closer to the E-PAP by injecting an epistemic element into the PAP because in such a case the agent’s psychological pressure is strongly connected to their belief that the coercion is genuine and that they thus lack an alternative.
53. Ashworth, Andrew, Principles of Criminal Law, 6th ed (Oxford University Press, 2009)Google Scholar at 215-19; Simester, Andrew P et al, Simester and Sullivan’s Criminal Law: Theory and Doctrine, 6th ed (Bloomsbury, 2016)Google Scholar at 696-705.
54. The issue of false justified beliefs is contentious also philosophically, but most discussions appear in Epistemology; see, for example, Feldman, Richard, Epistemology (Pearson, 2003) at ch 2; Clayton Littlejohn, Justification and the Truth-Connection (Cambridge University Press, 2012).Google Scholar
55. The point made in note 52 is also applicable here.
56. Tadros, supra note 17 at 23.
57. Douglas Husak, Book Review of Punishment and Freedom: A Liberal Theory of Penal Justice by Alan Brudner, (2010) 120:4 Ethics at 841 at 842. Husak believes that “political philosophy must be used in addition to moral philosophy to explain and justify the shape of Anglo-American law” (ibid at 844). However, Husak remains critical of Brudner’s Hegelian theory of punishment, according to which “culpability depends exclusively on what external choice a person has made, [so] everything pertaining to his inward self is irrelevant to a judgment of culpability.” Brudner, Alan, Punishment and Freedom: A Liberal Theory of Penal Justice (Oxford University Press, 2009)CrossRefGoogle Scholar at 166. See also David Shoemaker’s less unequivocal view in “On Criminal and Moral Responsibility” in Mark Timmons, ed, Oxford Studies in Normative Ethics, 3rd vol (Oxford University Press, 2013).
58. Stephen J Morse, “Psychopathy and Criminal Responsibility” (2008) 1 Neuroethics 205 at 208.
59. Hart, supra note 15 at ch 2; Moore supra note 16 at ch 12.
60. “In the standard case of coercion, B does X because B rationally regards X as the most attractive alternative—under the circumstances.” Wertheimer, Alan, Coercion (Princeton University Press, 1987)Google Scholar at 10. Note that the controversy about what makes alternatives unacceptable or unreasonable is immaterial to this paper. In particular, it is immaterial whether the unacceptability or unreasonableness of the alternatives ought to be assessed empirically or normatively (see the extensive discussion of coercion as a moralised concept by Wertheimer).
61. For another attempt to convert Jones4 to the legal context, see Tadros’ example, discussed in note 45 above.
62. See supra note 4.