Adequate Provocation, Individual Responsibility, and the Deconstruction of Free Will

By Littman, Rachel J. | Albany Law Review, Summer 1997 | Go to article overview

Adequate Provocation, Individual Responsibility, and the Deconstruction of Free Will


Littman, Rachel J., Albany Law Review


I. 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.

II. 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)

A. 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. …

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