Abstract
The exercise of synchronic self-control is the way in which an actor can attempt to bring a desire into alignment with his better judgement at the moment and during the interval of time over which, but for the exercise of such self-control, the desire would become the actor’s preponderant desire, which the actor would then translate into an act contrary to his better judgment. The moral psychology of an actor who fails to achieve such self-control can be analyzed in two ways. One way is meant to be consistent with compatibilist metaphysics; the other with libertarian metaphysics. The implications of these analyses for the criminal law are complicated, but perhaps the most important is this: the criminal law should in principle recognize a partial excuse for an actor who exercises synchronic self-control but who gives up his effort because he believes that he can no longer continue to resist. His effort to achieve self-control thus fails, and he ends up translating into action the very desire he set out to control.
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Notes
But see Weston (2005, p. 602) (‘[T]he relationship between free will and determinism is a false problem.’).
Mele (1987, p. 26). Although the exercise of synchronic self-control (whether interpreted along lines consistent with libertarianism or compatibilism) is here understood as a mental act of some sort, that understanding is not uncontroversial. Compare Mele (1997, 1998, 1999) (arguing that synchronic self-control is sometimes actional), and Zhu (2005) (same), with Kennett and Smith (1996, 1997) (arguing that synchronic self-control is always non-actional).
Model Penal Code Section 2.09(1).
Watson (2004, p. 340).
But see Weston and Mangiafico (2003) (arguing that duress so conceived constitutes a justification defense).
This account is drawn from Smith (2004, p. 132). Several points warrant emphasis. First, much of the contemporary compatibilist literature on free will and moral responsibility rejects the proposition or principle that an actor is responsible for what he does if and only if he could have done otherwise, generally known as the principle of alternative possibilities (or PAP). Many compatibilists reject this principle because they believe that so-called Frankfurt-type cases demonstrate that an actor can be responsible for an act even when the circumstances are such that he could not have done otherwise (see McKenna and Widerker 2003). Others reject it because they believe that a careful analysis of our moral practices of praising and blaming reveal that we do not in fact suppose that legitimate ascriptions of praise and blame depend on the existence of alternative possibilities (see Wallace 1994). In contrast, the compatibilism described in the text accepts the principle of alternative possibilities, such than an actor is not responsible for what he does if he could not have done otherwise, but construes that principle in such a way that its truth is compatible with the truth of determinism (Smith 2004; Vihvelin 2004). For criticisms of Smith’s analysis, see Corrado (2000, p. 956, 2006, p. 138).
Second, on Smith’s analysis, an actor’s capacity to exercise and achieve self-control is a matter of degree, and as such, it makes sense to describe an actor as having a ‘partial capacity’ to exercise and achieve self-control (Smith 2001a, pp. 53–54, 2001b, p. 16). An actor’s capacity is a matter of degree because the number of nearby possible worlds in which the actor exercises and achieves self-control can in principle range from 0 (no capacity) to ∞ (full capacity). An actor’s capacity to exercise and achieve self-control can therefore be described as ‘partial’ when it falls somewhere in between.
Third, Smith’s analysis is an analysis of what it means to say that an actor ‘could (or could not) have done otherwise.’ The best evidence of whether an actor could or could not have done otherwise is typically whether he has done otherwise in similar circumstances in the past. Smith (2001b, p. 14) (‘[O]ur best evidence for the truth of the claim that [an actor] can exercise self-control, when he fails to do so, is very often that he usually succeeds when he tries.’); Smith (2001b, p. 17) (‘Regular patterns in actuality are, quite in general, what provide us with such evidence as we have for the similarities and differences that obtain between the actual world and other possible worlds. But we must not let this epistemological point obscure the metaphysics of capacities.’).
Fourth, accounts that analyze what it means to say that an actor ‘could (or could not) have done otherwise’ in terms of what he would have done if faced with some severe consequence like a ‘gun at the head,’ Morse (2000a, p. 29), such that an actor is said to possess the capacity to not-φ if and because he would not have φ’d if the consequence of doing so would have been his death, almost inevitably end up rejecting the idea that any actor could ever be said to lack the capacity to control a desire whose satisfaction would result in his committing a crime: no desire can be fairly described as ‘irresistible.’ In other words, on this account an actor could have done otherwise if he would have done otherwise in at least one other possible world, no matter how remote that world might be from the actual world. On this point, I’m inclined to agree with Mele, who has argued that ‘an agent’s desire to A … may properly count as irresistible even if he would successfully resist it in some extreme counterfactual scenarios’ (Mele 2002, p. 163).
Smith (2004, p. 133).
Morse (2000, p. 255, 2003, p. 295). The extent to which an actor is cognitively irrational is presumably a fact about the actor the truth or falsity of which can be determined without reference to possible worlds. The extent to which an actor lacks the capacity for cognitive rationality is presumably a fact about the actor the truth or falsity of which can only be determined with reference to possible worlds. According to Morse, an actor’s capacity for rationality (or reason) in turn consists of ‘a congeries of abilities, including the ability to perceive relatively accurately, to reason instrumentally, to evaluate one’s actions in light of one’s reasons, to weigh appropriate considerations, and the like’ (Morse 2002, p. 1067). Insofar as any claim that an actor possesses or does not possess a particular capacity must for a compatibilist be understood in terms of possible worlds, it would seem to me that the same type of analysis can be used to understand claims to the effect that an actor could not have done otherwise because he lacked the capacity to do or choose to do otherwise. See Smith (2001b, p. 16) (‘[T]he sort of thing that makes any … modal claim true or false … [is] … facts about the similarities that obtain between possible worlds.’) (emphasis added).
The generic partial excuse defended here should be seen, not as a substitute for the partial excuse Morse defends, but as a supplement to it.
Drawing on the work of Michael Moore, Morse conceives of the will as nothing more than a mental state—a volition or bare intention—the function of which is to bridge the gap between more complex or general intentions and action, or in other words, to execute intentions into action (Moore 1993; Morse 1994, pp. 1595–1596). On this conception of the will, the kleptomanic suffers from no defect of will, inasmuch as he does indeed effectively form a volition that translates desire into action.
Morse (1994, p. 1624).
In his earlier writings, Morse suggested that cases like that of our imagined kleptomaniac might be cases in which the wayward desire itself is irrational, such that what accounts for any sympathy one might have toward him is his supposed conative irrationality (Morse 1994, p. 1624). In his later writing, Morse seems to have abandoned this position (Morse 2002, p. 1069).
Morse (1994, p. 1630) (emphasis added).
I thank Doug Husak for pressing me on this point. Morse calls for a verdict of ‘guilty but partially responsible’ (GPR) if the jury finds that the defendant at the time of the crime ‘suffered from substantially diminished responsibility for which the defendant was not responsible and which substantially affected the defendant’s criminal conduct’ (Morse 2003, p. 300).
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Acknowledgments
I would like to thank Kim Ferzan and Doug Husak, co-directors of the Rutgers University Institute for Law and Philosophy, for inviting me to participate in the conference on criminal-law theory at which this paper was presented. I thank the participants there for their comments, especially Vera Bergelson. I wish I had good answers to her many insights, but didn’t then and still don’t now.
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Garvey, S.P. Dealing with Wayward Desire. Criminal Law, Philosophy 3, 1–17 (2009). https://doi.org/10.1007/s11572-008-9057-2
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DOI: https://doi.org/10.1007/s11572-008-9057-2