Thomas A. Green(*)
The concept of freedom has two main aspects: political liberty and freedom of the will. I am concerned here with the latter, although -- as these two aspects of freedom are not entirely unrelated to each other -- I shall touch also on the former. Enough has been written from a philosophical perspective on the relationship between free will and the law that it is not easy to justify yet another such undertaking. But there may still be room for some informal observations on the manner in which doubts about the concept of freedom of the will affected discussion of criminal responsibility in early-twentieth-century America -- room for reflections that might also serve as a backdrop to more presentist concerns.
The occasion for this essay -- the inauguration of the Dawson chair at the University of Michigan Law School -- has not commanded its subject matter.(1) Nonetheless, it is worth noting that Professor Dawson touched upon the freedom question some fortyodd years ago in his important article on economic duress.(2) Dawson there pointed to doctrine that made evidence of consent a test for whether there had been the complete destruction of the will that the law of duress sometimes required: "[C]ourts had been slow to realize that the instances of more extreme pressure were precisely those in which the consent expressed was more real; the more unpleasant the alternative, the more real the consent to a course which would avoid it."(3) This tendency of thought -- which Dawson saw as paradoxical -- was not of course universal. Progressive-era courts, as Professor Dawson proceeded to show, came to focus on the unfairness involved in the enforcement of contracts that resulted from greatly unequal bargaining power. For these courts -- one infers -- the legal presumption that the weaker party's choice was freely made was indeed open to question. That party's freedom -- or lack of freedom -- was, however, a purely relative matter. The more general issue of whether humans could ever act with free will did not often arise. There were some doubts in the culture at large about this ultimate capacity for human autonomy, but these tended not to penetrate the legal sphere. There were a few exceptions to this, as we shall shortly see, but they rarely involved marketplace relations. For the most part, contemporaries saw the problem of freedom in the marketplace as resulting solely from superior bargaining power, and they thought that this problem could be remedied by resettling the conditions that determined that power -- by restoring the dominated actor to relatively equal footing with the dominant actor.
The concepts of freedom and equality are thus close cousins. To be on equal footing means, in our legal, political, and social culture, to be free -- at least this seems true on the surface, where the law has long dwelled, and where perhaps it ought to remain. Barring circumstances of gross inequality, freedom is the central presumption of the law.
The most important exception is the domain of criminal jurisprudence, where doubts about the ultimate capacity for human freedom have penetrated both jurisprudence and the practical application of the law. Even here, however, the extent of the incursion has been limited by the deployment of mechanisms of evasion. Typically, we have entertained our doubts at the sentencing phase of the criminal process, where the ultimate issue of responsibility is less prominently involved, and allowed our "progressive" approach in that context to disguise from ourselves how little we have confronted the implications of our doubts at the trial stage, where responsibility is most directly involved. This largely unselfconscious maneuver has led to a substantial degree of incoherence in both the theory and the practice of our system of criminal justice, even as it has borne testimony to our determination to uphold the underlying concept of human free will.
Our approach to both trial and punishment has also evidenced our concern with the other concept of freedom: political liberty. For the progressive notion that those who have committed crimes have done so as a result of circumstances over which they had little or no control has vied with the progressive(4) notion that limits on state intrusion into the life of the individual quickly evaporate when all human behavior is viewed in this fashion. Freedom from the state presumes -- even requires -- that the law be premised upon the possibility of human freedom.
The plan of this essay is as follows. I begin with a sidelong glance at some features of fin de siecle criminal jurisprudence, which I approach through a reading of a few papers written at the outset of his career by a little-known New York lawyer, Gino Speranza. Strongly influenced by the behavioral science of his day, Speranza reflected a radical perspective shared by few contemporary practitioners -- or academic legal theorists. Speranza represented a movement that brought deterministic ideas from the behavioral and social sciences into law. In that respect he stands as a kind of missionary to lawyers from "scientists." But Speranza soon discovered that the limits of common lawyers, own cultural traditions largely prevented the assimilation of determinism into law, and came to appreciate the conservative value of some of those traditions. Speranza illustrates the limits beyond which few American lawyers of the day would proceed in assimilating the social and behavioral sciences. He thus helps to define the scope of the problem that the legal profession confronted.
I turn in Part II, the main section of this essay, to a lengthy odyssey: the evolution of Roscoe Pound's criminal jurisprudence, from 1905 to 1923. Born in Lincoln, Neraska, in 1870, Pound was, of course, a leading legal academic of the early twentieth century, serving first as a member, then as Dean, of the Nebraska law faculty and thereafter on the law faculties of Northwestern and Chicago. He moved to Harvard in 1910, where he was Dean from 1916 to 1936. Pound continued to write until his death in 1964, although his truly creative period had ended by the 1930s. With respect to criminal jurisprudence, Pound was potentially an odd man out, for he appears in his own thinking to have rejected the concept of free will as an element of mens rea. Pound nonetheless managed to retain a resolutely juristic perspective, always keeping safe distance from the hard-core determinism of much Progressive-era criminology and penology. He was an avowed assimilationist, and his writings reflect the strains that are the lot of the common lawyer who would join the insights of law and science. In his own way, Pound sought to meet the challenge of the fin de siecle, to resolve what Speranza had deemed unresolvable. He looked forward to, but never clearly articulated, a gradual reform of all aspects of criminal justice administration that would meld the principles of social and behavioral science with the imperatives of legal science and maintain respect for the claim of human freedom. Pound's approach -- eclectic, unsystematic -- sought to apply selectively the learning of the social and behavioral science of his day in order to achieve overall coordination of ideas and institutions. He overlooked inherent contradictions, unselfconsciously adopting an evasive approach to the most difficult problems. Though his achievement was significant by the standards of his times, as a foundational work in criminal jurisprudence it fell short of the leading accounts of the 1930s and beyond. More history, impressionistic sociology, and commentary on contemporary legal practices than analytical jurisprudence, Pound's contribution to modern criminal justice study has been largely forgotten -- mined for aphorisms but not appreciated as the fine tapestry that it is. I tell Pound's story both for its own sake and as an introductory foray into the history of early twentieth-century criminal jurisprudence. For the most part, I let Pound speak for himself. (Indeed, the entire essay is largely devoted to recovering voices that have long-since drifted away, been recorded-over by our own idiom as we have addressed the same issues.) While I remain agnostic as to whether Pound was representative, I see him as part of the progressive juristic vanguard and as a true Progressive. Few other American legal scholars of the pre-1923 period wrote much of a sustained sort on the problem of criminal jurisprudence; generalizing from the random comments of the day is of limited help in this regard. There is a fuller, far more contextual tale to be told of that period, but that tale remains for a later occasion.
Part III recreates what might be called a conversation among a number of commentators on criminal justice, from 1923 to 1930. The "conversation" -- of which I recount only some high points -- is meant to bring Pound's story to a close and to put Pound in perspective. It also serves to introduce what I see as the beginning of a new era, one marked not so much by new issues as by new energy and increased attention to those issues already within the legal academy. From a presentist perspective, Pound's story matters because his work dealt with problems forced on lawyers by "scientists" that remain at the foundation of our thinking about criminal justice. Despite all that has happened since the mid-1920s, the era toward which Part III points, Pound's story remains, in a special sense, largely our own. Our analyses of criminal jurisprudence go far deeper, and we are attentive to ultimate contradictions that Pound seems not to have confronted. Nonetheless, we build on the same shaky foundations, partly recognizing that it is the best we can do; partly, but only indirectly, taking the infirmities into account; partly forgetting along the way how much we rest matters of life and liberty on theories that resist verification -- indeed, that invite...