PHILOSOPHICAL ASPECTS RELATED TO THE CAUSATIVE EVALUATION OF VOLUNTARY AND INVOLUNTARY TYPES OF BEHAVIOR

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1 PHILOSOPHICAL ASPECTS RELATED TO THE CAUSATIVE EVALUATION OF VOLUNTARY AND INVOLUNTARY TYPES OF BEHAVIOR Dr. Adriana ANXHAKU Abstract: The legal concept of responsibility is irremovably tied to the process of classification of the investigated actions, by use of causative analysis, as voluntary or involuntary types of behavior. This study, based on a number of theses of H. L. A. Hart, aims at pointing out the problems that may arise due to the use of causative analysis needed to condone certain actions against norms of law. The most essential questions raised here, and to which this study aims to answer, off course not exhaustingly, are: - To what extent can a motive or an antecedent action in time be determined as the cause for the actions subsequently taken? - How free can a person be in making one s choice in the chain of causes and consequences? - What is the role played by chance, and what set of circumstances constitutes a chance event? - Can a repeated order of events, that follow each other a few times, be considered as a cause and effect link? A series of arguments demonstrate that the relation between the initial point of an action and its illegal consequences may be unjust. This study aims to present a number of philosophical criteria applied to law, in order to evaluate and distinct a voluntary type a behavior from the involuntary, and weigh properly the measure of responsibility. Keywords: Causality, voluntary behavior, condonation, responsibility, consequences. Being responsible, in the legal and moral sense is the willful undertaking of an action or inaction expected from one s social role. Many of the ambiguities in this field arise due to the impossibility to clearly determine the extent of actions, and the scale of purpose within them. Thus, when courts issue their verdicts regarding the determination of responsibility, a great role is played not only by providing the best information possible, but also by interpreting it. The search for causes of actions combines intuition, reason, experience, possibilities, etc. Consequently, shedding more light on a number of conceptual relationships in this field may help in gaining a better understanding of the process. 1. Causality and responsibility 1

2 In order to reach to a precise evaluation of causes and responsibilities, certain law philosophers such as Alexy (Robert) think that, argumentation rules applied generally to rationality cannot be applied in the field of law. 1 The logic of law may not follow the logic rules of clean reason sometimes, simply by virtue of their enforced application once they are approved. Thus, people are obliged to comply with any law, even when that law seems at best lacking or in opposition to reason. The concept of causality, often used to uncover responsibilities, can be found in natural sciences, liberal arts and also in the field of law. Since all these sciences lack any fixed scheme of causality, it is understandable why there are no strict rules regarding the justification of verdicts on responsibility. However, we can t forget that the connection cause-effect in nature changes from the connection cause-effect in human society, because in the realm of nature consequences follow mostly without human intervention, while in a society all is influenced by human actions. Precisely for this reason, since the times of Scholasticism, existed a distinction between causa cognosendi, arising from human experience at handling an object, and causa essendi, that arises from the object s existence in itself. But, in the case of juridical and moral responsibilities, the term cause is used to uncover one or more driving forces to be found in the circumstances and motives of human beings. Consequently, human actions may comprise both purposeful acts and aimless actions. Meanwhile, the term consequence is used when a connection is perceived between the apparition of an event and others following afterwards. The need to explain the motives of human behavior in legal cases is conditioned also by the fact that the determination of the degree of responsibility decides whether the offender may be treated by law or not. In this manner, if a human being, faced with a set of circumstances, makes a decision in rational manner, by anticipating the consequences of the actions on oneself and others on the basis of the law, that person is considered responsible. Thus, for every action undertaken, this person must keep in mind the justifications behind them, not only for the eyes of the others, as is the case with morals, but also in front of the law. Free will constitutes a major precondition in determining responsibility. Therefore, Bentam stated that punishments should be delivered only upon those persons that have acted in free will. Free will implies that the person is self dependant in the choices made. We may say we are dealing with free will when: the Person has the possibility of choice; when what is chosen fits with that Person s mental and material wealth; and when the choice is personal. 1 Alexy, Robert:Theorie der juristischen Argumentation, 2. Aufl., Suhrkamp Verlag, Frankfurt a. M, 1991, p

3 Some of the cases when free will is questioned are: when someone acts in violation of the law, being under the threat of someone else; or when the society relieves someone of free will and then punishes that same person for the actions taken by him. Rousseau, in the Social contract has captured this element quite well when he says: Denying man any freedom of will, equals to loosing all morality for his actions. 2 Meaning that if a given society breeds slaves, who live in ghettoes of poverty, under the constant lack of life s essentials, this society, cannot punish a man coming from that environment, who steals only to survive. Since institutions have denied that person the free will to choose, they have also relieved themselves of the right to punish that person as a person who has had free choice, because the person in question was forced to choose between dying and breaking the law. There are cases when the law itself infringes on the free will, in ways such as state deportation, punishment of family members, seclusion in mental institutions, or quarantines for infective diseases. In these flagrant cases of dissipation of free will, it is impossible to look for responsibility within the human being, if the term still applies. Unlike Rousseau, Mill does not award much weight to social circumstances. In his view, the quality of free will implies that, will, unlike other phenomena, is not determined to the greatest extent by the past, but it dictates itself. 3 With this thesis, Mill aims at showing that human free will is not a direct consequence of outer causes, since different people act differently under the same circumstance. This implies that free will comprises the causality of choices. The importance of free will for the condonation of individuals is stressed by Hart as well, who writes: The acceptance of certain condoning arguments, as a request of justice, implies that justice lies in properly weighing down the competing declarations of individuals, who are all treated seriously in equal measure, for as long as they present actions in free will. 4 Thus, Hart presses for the need to distinct a suspect that presents a well calculated and guided behavior from the behaviors that have arisen because of the manipulative techniques that someone may use against others. At this point, it becomes important to draw the distinction between human purposes and human desires. 2. Willing purpose, unwilling desire 2 Rousseau, Jean-Jacque: Kontrata Sociale, Shtëpia Botuese Luarasi, Tiranë 1998, p Mill, John Stuart: Një sistem Logjike, në Utilitarizmi dhe shkrime të tjera, Shtëpia botuese ISP&Dita 2000, p Hart, H.L.A: Eine Vereinigungstheorie von Prävention und Vergeltung, in Recht und Moral, Texte zur Rechtsphilosophie, Hrsg von N. Hoerster, Reclam Verlag, Stuttgart 2002, p

4 Someone may desire to murder somebody else, but does not do it, because once the idea is passed through the filters of reason, that person realizes that there are many reasons against the murder. Thus, desire is not transformed into purpose. On the other hand, a person may never wish to murder somebody, but still does so, as is the case with car crashes. The starting point of this idea is to be found in philosophers such as Spinoza and Hobbs, who make a distinction between reasoning on an actions and action based on a reason or a purpose. The application of this distinction in the field of justice is clearly brought in front of our eyes by John Finnis, when he describes the English juridical doctrine and the distinction between purpose and desire. This distinction was clearly stated by the middle of twentieth century. Legal theoreticians pretend that the legal concept of purposefulness is based on the clear prediction of the consequences of this purpose. 5 To them, purpose is clearly distinguishable from motives and desires. The conflict usually arises between law academicians and practitioners, the latter thinking that desiring something equals to having the purpose to achieve it. Emotional desires may be much more stretched that willing purposes controlled by reason. In other words, one may want to go to Mars, but it is not possible. Thus, the distinction offered by Finnis between desire and purpose is the division of the involuntary emotional desire from the willing purpose. Aiming at something is not just a matter of feelings and emotions, but a matter of planification on how to reach the objective. However, the presence of rational factors in making choices and establishing purposes does not exclude the presence of senses, imagination and even feelings in the process. Obviously, when we wish to achieve certain planned objectives there are some feelings and emotions involved, but they do not play a primary role. 3. Objectives and the prediction of consequences Another distinction that must be made when we analyze human actions is that between something intended and the prediction. It is not enough to have some apparent good intentions, when what you do may have devastating side effects, as is the case sometimes with plastic surgery. Likewise, the prediction and the purpose may be completely different during drug use, meaning that the user predicts pleasure but does not aim at the rapid death that can follow. Therefore, even side effects are submitted to moral and legal judgment. Unlike practitioner lawyers, who connect purposefulness with the capacity to predict as many consequences as possible, Finnis says: The fact that a clear prediction results to be the most desirable one to be followed by action, it does not mean that the person desires 5 Finnis, John: Intention and side-effects, in Liability and Responsibility, Essays in law and morals, Cambridge University Press 1991, p

5 the predicted thing. 6 The latter is made for a further purpose, not chosen willingly by the person. For example, working as assistant for a lawyer because of low grades that do not permit enrollment in Law School. Maybe what we need to keep in mind when we speak of predictive capacities is a thesis of Hanah Arendt, which states: The limitations imposed by law (on human actions) are never safe defenses against actions, just like land borders are never completely safe defenses against outer actions The unpredictability of human actions arises from the incapacity to predict the consequences of an action within a unit of equals, in which every single individual has the same capacity to act. 7 At this point we must take into consideration the role of causality in human actions. 4. The weight of chance We are responsible for some consequences of action or inaction, but not for some others. According to Hart: The main quality that must lead to the alleviation of the punishment steams from reaching the reasonable conviction that to the accused person it was too difficult to follow the requirements of the law, compared to other people who are in normal circumstances and observe the law. 8 What can be listed as abnormal circumstances may vary from an unusual mood to a series of circumstances impossible to be foreseen. According to Hart we are dealing with chance when: The connection between two or more phenomena, within a given time and space frame is, 1) truly impossible according to habitual standards, 2) meaningful due to certain reasons, upon condition that, 3) it happens without the person s planning It is the same like two persons who live in different places, and independently of each other write the same book on the same subject. 9 But when actions follow each other and are preordained, there is no room for chance. Here we must not only evaluate how has the person acted, but even more so how has he chosen to act. Knowing the intentions of individuals and groups where they take part is the principal element in determining causes and responsibilities, because group loyalty and solidarity can explain many of their actions, which initially appear as chance events. This means that behind many chances may be hidden cause and effect links, still unknown to us. John Finnis says: There may exist a certain unclarity and straightforward doubt, regarding what can be called a purposeful act and what may have been an unpredicted or side effect of an action Likewise, often there is no possibility to make a distinction 6 Finnis, J: ibid, p Arendt, Hannah: Human Condition, Shtëpia botuese Ipls&Dita 2000, Tiranë 2006, p. 243, Hart, H.L.A: Eine Verainigungstheorie...p Hart, H.L.A. & Honoré, Tony: Causation and Responsibility, in Philosophy of Law Fourth Edition, Wadsworth Publisching Company, Belmont California, 1991, p

6 between what concerns free will and where does this change from spontaneity and freedom to act. 10 This becomes very clear once we enter the field of bio-ethics. In order to determine the causes and effects of an unexpected death, first it must be established whether the doctor has respected the patient s autonomy, which refers to the patient s right to suffer the least and bear minimal infringements on his freedom. Has the doctor tried to eliminate possible damages through the intervention made? And last but not least, has the doctor treated the patient in time and in the proper manner? However, for certain patients that require immediate intervention such elements cannot be fully met, and this diminishes the weight of responsibility of the doctor. Therefore, a repeating chain of chance events within the same event cannot be simply considered a work of chance, as it would be the case when the doctor s actions do not show any inclination to act according to the rules. A chain of events cannot condone those actions that had to be undertaken on the basis of necessity. It would seem the doctor has left plenty of room for chance through his incompetence. 5. Responsibility and the time factor Parts of the responsibilities are certainly conditioned by time: To what extent can a motive or an antecedent action in time be determined as the cause for the actions subsequently taken? This question rises spontaneously when we know that the consequences of human actions may extend over a long period of time, like when it comes to the extinction of animal and plant species, pollution of the environment, etc., all issues in which future generations will largely depend on the consequences of our actions. Then follows the element that Hans Jonas qualifies as the obligation to widen the knowledge, meaning achieving the best knowledge possible on the action and its consequences over a period of time as long as possible. 11 In epistemology, this implies that when knowledge is needed in order for man to act correctly, knowledge becomes an obligation in order to move into determining responsibility. And this knowledge is not about everyone and everything, but it can only render possible the recognition of the causative dimensions of our actions. But the number of causes of a certain phenomenon may be very high. The exercise of checking the causes and the visualization of consequences in a manner made possible by technical knowledge, may always uncover new causes, unknown before. Hans Jonas urges us to believe that when we know the motives and the main circumstances that drive a certain person towards action, it is possible by knowing his 10 Finnis, John: ibid., p Jonas, Hans: Philosophische Untersuchungen und Metaphysische Vermutungen, Fischer Verlag, Frankfurt a.main, 1999, p

7 character and inclinations to predict how he is going to act. However, we cannot know in full certitude these elements, because each of us has a certain freedom to act and choose. Therefore we must accept what Anthony Kenny says: The term mental responsibility is a strange term The question whether a person must be declared guilty, is a question that must not be answered by the psychiatrist, but by the jury. Thus it is not up to psychiatry to decide whether a person must be punished or not, but up to the law. However, a psychiatrist, to whom may be asked to give defending testimony to lessen that persons responsibility, must primarily give his opinion on this matter. 12 Precisely to avoid such strong influences of opinions on legal matters, it would be necessary for the jury or the judge to use more liberally their capacity to recognize and predict consequences of actions of certain people. As a conclusion, some rules, arising from the philosophical interpretation of legal responsibility, are: 1. Identify the primary action and the degree of free will; 2. Evaluate the purposefulness according to a scale in every step of the action. This means that the behavior of a certain person is weighed according to the manner of action within the system of actions to which the person belongs in responsible manner (sport, family, work, etc.); 3. Recognize consequences and weigh down how they were predicted; 4. Uncover the role of chance in the main action; 5. Reevaluate consequences on the basis of the time factor (the environment example, or the doctor); 6. Compare conclusions reached in such manner with the condonation and legal punishment criteria. 12 Kenny, Anthony: Can Responsibility be diminished? Në Liability and Responsibility, Essays in law and morals, Cambridge University Press 1991, p.20. 7

8 BIBLIOGRAPHY Alexy, Robert:Theorie der juristischen Argumentation, 2. Aufl., Suhrkamp Verlag, Frankfurt a. M, Arendt, Hannah: Gjendja njerëzore, Shtëpia botuese Ipls&Dita 2000, Tiranë 2006.Finnis, John: Intention and side-effects, në Liability and Responsability, Essays in law and morals, Cambridge University Press Hart, H.L.A: Eine Vereinigungstheorie von Prävention und Vergeltung, në Recht und Moral, Texte zur Rechtsphilosophie, Hrsg von N. Hoerster, Reclam Verlag, Stuttgart Hart, H.L.A. & Honoré, Tony: Causation and Responsibility, në Philosophy of Law Fourth Edition, Wadsworth Publisching Company, Belmont California, Jonas, Hans: Philosophische Untersuchungen und Metaphysische Vermutungen, Fischer Verlag, Frankfurt a.main, Kenny, Anthony: Can Responsibility be diminished? Në Liability and Responsability, Essays in law and morals, Cambridge University Press Mill, John Stuart: Një sistem Logjike, në Utilitarizmi dhe shkrime të tjera, Shtëpia botuese ISP&Dita Ruso, Zhan-Zhak: Kontrata Sociale, Shtëpia Botuese Luarasi, Tiranë