Resurrecting the Causal Theory of the Excuses

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 1116. Resurrecting the Causal Theory of the Excuses

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Anders Kaye*

Resurrecting the Causal Theory of the Excuses

TABLE OF CONTENTS

I. Introduction ..................................................... 1117
II. Causal Theory Defined ........................................... 1119
A. The Claims Made by Causal Theory ............................. 1120
1. The First Claim: The Excuse Accepts a "Causal
Account" .................................................. 1120
2. The Second Claim: The Excuse Expresses the
Control Principle ......................................... 1123
B. Causal Explanation and the Criminal Law's
Excuses ...................................................... 1126
III. The Contemporary Critique ...................................... 1131
A. The "Overbroadness" Formulation ............................. 1132
B. The Underlying Objection to "Partial
Determinism" ................................................ 1133
IV. "Provisional Determinism"--A Plausible Partial
Determinism .................................................... 1135
A. How the Critics Overstate the Case Against Partial
Determinism ................................................. 1136
B. The Anxiety That Makes Us Partial Determinists .............. 1140
1. "Existential" Anxieties: Threats to Our
Aspirations for Our Selves .............................. 1140
a. Loss of "Control" .................................... 1142
b. Loss of Stature ...................................... 1144
c. Loss of the "Self".................................... 1147
2. Social and Political Anxieties: Corruption of
Attitudes Toward Others .................................. 1148
a. Corruption of Social Attitudes ........................ 1148
b. Corruption of Political Attitudes ..................... 1150
3. Epistemic Anxieties About Causal Accounts ................ 1153

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C. How Anxiety Makes Us Provisional--and Thus
Partial--Determinists ....................................... 1155
V. Some Motivation for Revisiting Causal Theory: The
Disturbing Features of the Compatibilist Criminal
Law .............................................................. 1157
A. Compatibilist Criminal Theory ............................... 1158
B. Disturbing Features of the Compatibilist Criminal
Law ......................................................... 1162
1. The Arbitrariness of the Compatibilist Criminal
Law ...................................................... 1163
2. Artificial Criteria for Blame ............................ 1167
3. A Morally Complacent Criminal Law ........................ 1170
4. Unresponsive to Advances in Our
Understanding of Human Behavior .......................... 1172
5. Resistant to Criticism of Social Conditions .............. 1174
C. Shaking Off Compatibilism and Looking for New
Alternatives ................................................ 1175
VI. Conclusion ...................................................... 1176

I. INTRODUCTION

This Article seeks to resurrect the "causal theory"(fn1) of the criminal law's excuses. While the causal theory fits some of our most important and most humane moral intuitions in a way that no other theory of the excuses does, it gets little play in current criminal theory.(fn2) This Article argues that criminal theory should give causal theory a second look.

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,"(fn3) 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

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criminal law's defense doctrines--including, for example, the involuntary act doctrine, the irresistible impulse defense, and the duress defense. The law excuses actors under these doctrines, causal theory says, because it presumes that (1) the excused conduct is caused by forces beyond the actor's control and (2) such conduct is not blameworthy.

There is much that is intuitively appealing about causal theory: in our daily lives, nearly all of us act as though we believe that some acts are caused by forces beyond the actor's control, and most of us have the impulse to forgive actors in such cases. Nevertheless, causal theory has few supporters in current criminal theory. Instead, most contemporary explanations of the criminal law contend that it takes the "compatibilist" view that actors can be blamed for conduct caused by forces beyond their control.(fn4) Since compatibilism holds that causation is irrelevant to excuse, compatibilist criminal theory must show that there are other valid criteria for deciding who to excuse and who to blame, and much of contemporary excuse theory has been preoccupied with trying to work out just what those criteria are. The result is that causal theory has fallen into desuetude.

This Article aims to breathe some life back into causal theory. My efforts will take two forms. First, I will refute an allegedly devastating critique of causal theory. Second, I will argue that compatibilism has several normatively disturbing features that have not been sufficiently acknowledged in current criminal theory. There is other work that could be done to advance causal theory--causal theory's descriptive account of the excuses could be developed in more detail,(fn5) and current compatibilist theory could be critiqued for its descriptive failings--but the two arguments I offer here seem to me the ones most essential to jump-starting interest in causal theory. Causal theory cannot even get off the ground if it is pinned by a seemingly-devastating critique; that critique must be addressed. And once that has been done, exposing the most disturbing features of the compatibilist view seems to me the best way to motivate exploration and development of the causal theory alternative.

Part II of this Article sets the stage by describing the causal approach and giving concrete examples of its application to the criminal law's defenses. One goal of this Part is to bring out some of the ways in which causal theory is intuitively appealing. Parts III and IV turn

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to the leading critique of causal theory. As Part III explains, the critics' focus on the theory's depiction of the criminal law as "partially deterministic." In the critics' view, partial determinism is so unpalatable--philosophically and psychologically--that the criminal law could not possibly tolerate it. As a result, causal theory's account of the excuses is simply implausible. Part IV refutes this critique by showing that it is entirely plausible that the criminal law is partially deterministic. As I explain, determinism and causal accounts of human action trigger deep and justifiable anxieties in us. We manage these anxieties by taking a wary, "provisional" attitude toward 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. If the argument in this Part is correct, there is nothing implausible about causal theory's depiction of the criminal law as partially deterministic.

Part V turns its attention to compatibilist theory. The purpose of this Part is to reawaken interest in causal theory by exposing some of the most disturbing features of the currently-favored compatibilist approach. Here, I emphasize that compatibilist theory depicts the law as inconsistent with the compelling moral intuition that blame should not be a lottery; that the compatibilist criminal law's criteria for blame are artificial--they make themselves look more appropriate than they are through a sleight of hand; that the compatibilist version of the law embraces moral complacency where moral engagement is called for; that the compatibilist version of the law is disappointingly unresponsive to advances in our understanding of human behavior; and that the compatibilist criminal law is suspiciously resistant to criticism of social conditions. Insofar as causal theory's criminal law 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.

Taken together, then, the arguments in Parts IV and V make this Article's primary point--that the move away from compatibilist theory and toward causal theory is both possible and appealing. Part VI, the Conclusion, briefly considers what the next steps should be in the resurrection of the causal theory.

II. CAUSAL THEORY DEFINED

Causal theory is a way of explaining the criminal law's excuse doctrines. It does not maintain that all of the criminal law's excuses have causal explanations--on the contrary, it recognizes that the criminal law may provide excuses to actors for other sorts of reasons (including, for example, consequentialist reasons). But it holds that the criminal law always excuses caused conduct and that this helps explain some of the criminal law's excuses. This Part sets out in more detail the two

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key claims that causal explanations of criminal law excuses make and provides examples of causal explanations of particular excuses.

A. The Claims Made by Causal Theory

Causal explanations of criminal law excuses entail two essential claims. The first is that the excuse accepts a "causal account" of a certain class of acts--that is, an account according to which those acts are

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caused by forces beyond the actor's control. The second is that the excuse expresses the "control principle"--that is, that it excuses the acts...