Adequate provocation, individual responsibility, and the deconstruction of free will.

• Author: Littman, Rachel J.

1. Introduction

   During the second semester of my first year of law school, my criminal law professor briefly discussed a Supreme Court case in which the Court had determined that it was unconstitutional for a state (death penalty) statute to contain a presumption that a person intends the consequences of his voluntary actions. This legal conclusion, my professor explained, was an example of how the Court was diminishing the notion of free will. Nothing further was said regarding what I believed to be a great philosophical debate. Faced with the task of memorizing the common law definition of "malice aforethought" and other legal rules, it was not until two years later that I found the time to explore further the interrelated concepts of intention, free will, and responsibility.

   I asked one of my mentors why our country had heat of passion crimes and why people should not be held fully responsible for their intended actions. The lawyer responded that people are human and sometimes act irrationally and that our laws recognize such human weakness. I found this to be an inadequate answer, giving rise to the topic of this Article. I pose the question: Why does the law tolerate "an unlawful act impelled by a justifiably passionate heart?"(1) The answer lies in history, philosophy, psychology, and the law.

   I have since discovered that there exists more material discussing whether or not we truly are "free" beings than I could attempt to read and fully integrate into one article. Further, this philosophical question could be applied to any area of the law. I have chosen heat of passion crimes as the catalyst for this discussion because they involve a moment of human action, the responsibility for which is, or should be, rooted in the question of how free the human mind really is to exercise its volition to choose and commit intentional actions.

   The law does not adequately address the free will debate,(2) and, like all disciplines, it has built upon itself through modern history, impervious to serious deconstruction of its founding principles. I have therefore chosen examples from several disciplines, including law, philosophy, psychology, medicine, and religion,(3) to help give a more thorough answer to the free will question.

   The goal of this Article is to coalesce different viewpoints to help answer the question implicit in the definition of "heat of passion": can an individual ever truly be "adequately provoked" by an external factor to commit an irrational but less blameworthy action (e.g., intentional killing)? This Article will demonstrate that while individuals are often subject to highly emotional circumstances, and their characters may have been formed by unfavorable environmental conditions, the human ability to reason and act rationally(4) can never be totally overborne by external influences.

2. A Discussion of Free Will and Determinism

   The answer to the question "Are we free?" has been debated throughout history, and the theories which remain are as divided now as when the question was first posed. This Article does not attempt to answer that question (although a particular position will be assumed for purposes of further legal discussion), but rather sets forth the various philosophical, medical/scientific, and religious perspectives and their corresponding theories.(5)

   1. Philosophical Categories

      Philosophy is divided into three basic categories on the question of free will: (1) free will (indeterminism); (2) determinism, which is subdivided into compatibilism (soft determinism), and incompatibilism (hard determinism); and (3) Libertarianism.(6) Representing the opposite ends of the spectrum are a belief in total free will on one end, and belief in determinism (external causation), on the other.(7)

      1. Free Will (Indeterminism)

         The theory of free will embraces the idea that individuals are self-determining agents, capable of being held morally responsible for their chosen actions.(8) Indeterminists believe that there is no way to predict how a particular person will act in any given situation, due to the indeterminate character of nature itself.(9) Indeterminism does not focus so much on whether an act was freely chosen, but whether the individual had the freedom to make the choice.(10) Indeterminism holds that to be "truly responsible for one's actions,"(11) one must be a free agent. The agent must be both undetermined by external causal factors and self-determined.(12) The self-determined quality of a free agent is premised on the concept that "the process of deliberation (however perfunctory or inexplicit) that leads us to make whatever choice we do finally make is truly our deliberation."(13) The ability to recognize and consider available choices is thus a prime element of the free will theory.

         Moral responsibility is usually equated with free will,(14) but it can exist and be appropriately assigned to individuals in a deterministic world. Indeterminism assigns responsibility to individuals because the theory holds that regardless of the environment or personal history, the individual had the opportunity and could have freely chosen otherwise.(15)

         Support for the free will theory has diminished as social and behavioral scientists,(16) as well as medical and psychology experts, have increased their understanding of the complexities of human nature.(17) Free will may also be somewhat unpopular because it requires the individual to question his own existence. With free will comes individual responsibility. Acceptance of individual autonomy and freedom means that one cannot externalize moral blame; instead, one has the ability to consider and choose among various alternatives and must face, with full dignity, the consequences stemming from the chosen action. Free will, however, can also be liberating(18) in that it validates and gives purpose to human existence. This latter view is common throughout various world religions and has been adopted by such thinkers as John Stuart Mill.(19)

      2. Determinism

         Determinism, adhered to mostly in the fields of science and medicine, is the theory that all events are caused by something else and, therefore, are predictable.(20) Others define the theory as the ability to calculate the outcome of all events with similar, known conditions (hereditary and environmental influences) and boundaries.(21) Determinism, however, is not an empirical theory in that it is impossible to observe or know all causal events; it is merely a unifying principle for further inquiry.(22)

         There are three basic types of determinism: logical, theological, and causal.(23) Logical determinism views the world with the notion that things cannot be other than they are, "without somehow violating the universal rule that each thing must preserve its own identity."(24) Theological determinism considers God to be the causal agent of all events.(25) Finally, causal determinism, which is the modern and most widely held view of determinism, concludes that "things must be as they are because their causes make them so."(26)

         At first glance, determinism seems to refute the notion of freedom and moral responsibility. On the contrary, determinism acknowledges that an individual cannot be held responsible for actions that were not caused by him.(27) Because determinism embraces causality, it also assumes that an individual does cause all of her voluntary actions.

      3. Soft Determinism (Compatibilism)

         Soft determinists posit that determinism and freedom are not incompatible. Compatibilists believe that freedom exists even if determinism is true.(28) Thus, even if the individual is caused by some external or past event, the individuals actions need not necessarily be caused by the same events. The actions are still "free" to the extent that they are not compelled, but are still committed according to the individual's desires and wishes.(29) Social or environmental factors may influence a persons character, but that does not prevent an individual from being free, i.e., responsible for his actions(30) that may nonetheless have some causal link to the character formed by factors beyond the individuals control.(31) The only way the external factors would be responsible for an individual's actions is if the actions were compelled by the causes, contrary to the individual's wishes or desires. If the action was caused by the individual's wish or desire, then the action would be completely free,(32) even if the wish/desire itself was somehow formed by the external cause.

         Soft determinists reason that the compatibility of freedom and determinism lies in a corrective view of the definitions of determinism and freedom. Determinism, they explain, means causality, not fatalism or compulsion.(33) Similarly, freedom does not refute the idea of causality. A free act, for example, may be caused by our desires, decisions, and choices, but the act is still free if it was not compelled by someone or something external to the person.(34) The freedom arises from the individual's ability to act or not act according to some possibly determined desire or wish.(35)

         In the spirit of nineteenth century romanticism, compatibilists view individuals as possessing an internal core-identity, or "self," separate and distinct from any character that may be formed or determined by external factors.(36) Under this model of human existence, responsibility can be appropriately assigned to the separate self, regardless of the externally determined character.

         Soft determinists take a deterrent and reformative approach to punishment.(37) This hedonistic, pleasure-pain principle theory(38) presumes that people will alter their behavior to avoid the unpleasant consequences of punishment. Even if an individual's character may be determined, the individual should nonetheless be able to weigh the potentiality of punishment when deciding whether to act according to the character's desires and wishes or the self's desires or wishes. Compatibilism will be...