On narcissism and veiled innocence:: Prolegomena to a critique of criminal law

Abstract

It is a fundamental assumption of the criminal law that we are by and large free and responsible beings.’ Absent such excusing conditions as insanity and duress, we hold those who transgress the law accountable for their actions and subject them to condemnation and punishment. The metaphysics of freedom which the criminal law embodies reflects our own phenomenology. We generally experience ourselves as free agents who are perpetually presented with alternative courses of action from which to choose. Our natural tendency is to project our own experience of choice into the actions of others and infer that they could have done otherwise. This is why we are inclined to praise individuals for their good actions and blame them for their bad ones. Attributions of criminal responsibility are an institutionalized expression of blame. We view the criminal as someone who had a choice but did the wrong thing. There has, however, been a perennial concern with whether we are in fact free and responsible. Philosophers have long debated whether we can reconcile a mechanistic picture of the universe with free will, and theologians still ponder the compatibility of free will and divine foreknowledge. Our freedom has more recently been placed into question by, inter alia, Freud’s and other psychoanalysts’ depictions of the unconscious workings of the mind, by sociologists and behaviorists who offer accounts of how we are formed by our environment, and by the findings of neurophysiologists which some believe demonstrate that all mental states are determined by the physico-chemical processes of the brain. Each of these varieties of determinism share the view that we are shaped by forces which transcend our own apparent agency. The experience of choice as issuing from a free spontaneity is seen as illusory. Every intentional act has a long and complex history, and the more thorough the narrative we are able to