Resurrecting the Causal Theory of the Excuses

60 Pages Posted: 2 Oct 2004 Last revised: 29 Apr 2017

See all articles by Anders Kaye

Anders Kaye

Thomas Jefferson School of Law

Abstract

This Article seeks to resurrect the "causal theory" of the criminal law's excuses. It refutes an allegedly devastating critique of the causal theory, and enumerates several of the normatively disturbing features of the currently-favored alternative to the causal theory.

Causal theory is one of several competing explanations of the criminal law's excuse doctrines. It makes two general claims. The first is that the criminal law presumes that some human acts are caused by forces beyond the actor's control. The second is that the criminal law adheres to the "control principle," the moral principle that actors cannot be blamed for conduct caused by forces beyond their control. According to causal theory, these two premises explain a host of the criminal law's excuses - including (for example) the involuntary act doctrine, the irresistible impulse defense, and the duress defense. The law grants these defenses, causal theory says, because (1) it presumes that the excused conduct is caused by forces beyond the actor's control, and (2) such conduct is not blameworthy.

This article seeks to salvage this theory of the excuses. The first step is to defend it against a critique that many theorists have taken to be devastating. According to this commonly-articulated critique, causal theory depicts the criminal law as "partially deterministic" (otherwise, causal theory's criminal law would be obligated to excuse either every human act or no human acts). This depiction of the criminal law, the critics say, is untenable. The reason it is untenable is that partial determinism is so implausible, as a philosophical matter, that the criminal law could not possibly endorse it.

The flaw in this critique is that it is built upon an overly simplistic account of our attitudes towards deterministic and causal descriptions of human behavior. As this article explains, determinism and causal accounts of human action trigger deep and justifiable anxieties in us. We manage these anxieties by taking a wary, "provisional" attitude towards causal accounts of human conduct, evaluating them on a case-by-case basis that does not lend itself to generalizations about the causes of human conduct. The result is a prudent partial determinism. Thus, once our anxieties about determinism and causal accounts of human behavior are taken into account, it does not seem at all implausible that our criminal law is partially deterministic. Indeed, it seems perfectly likely that it is.

Having shown that the causal theory of the excuses is not untenable, this article shifts focus and takes another approach to resurrecting the causal theory: in order to reawaken interest in causal theory, it sets out some of the most disturbing features of the currently-favored alternative to causal theory. The currently favored alternative paints the criminal law as subscribing to a brand of compatibilism (the view that it can be just to punish actors for conduct caused by forces beyond their control). But this compatibilist criminal law has several disturbing features: it skirts the compelling moral intuition that blame should not be a lottery; it relies upon artificial criteria to identify the blameworthy - criteria that make themselves look more appropriate than they are through a sleight of hand; it embraces a kind of moral complacency where moral engagement is called for; it is disappointingly unresponsive to advances in our understanding of human behavior; and it is suspiciously resistant to criticism of social conditions. Insofar as causal theory does not share these dismaying features, causal theory is an appealing alternative to the compatibilist approach, and deserves more attention and elaboration than it has received.

Keywords: Causal Theory, Compatibilism, Control Priciple, Determinism, Excuses, Free Wil, Moral Luck, Provisional Determinism

Suggested Citation

Kaye, Anders, Resurrecting the Causal Theory of the Excuses. TJSL Public Law Research Paper No. 04-13. Available at SSRN: https://ssrn.com/abstract=598543

Anders Kaye (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4259 (Phone)

HOME PAGE: http://www.tjsl.edu/directory/anders-kaye

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