Moralized theories of coercion: A critical analysis

Denver University Law Review

Volumn 74, Issue 4, 1997, Pages 907-929

  Hill, John Lawrence ^a,b  

^a UNIVERSITY OF ST THOMAS   (United States)

^b GEORGETOWN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 11244296365     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (71)

1. ALAN WERTHEIMER, COERCION (1987).
2. Id. at pt. 1, Law.
3. Id. at pt. 2, Philosophy.
4. ARISTOTLE, Ethica Nicomachea, in THE BASIC WORKS OF ARISTOTLE 935 (Richard McKeon ed., 1941).
5. William Blackstone, Commentaries on the Law of England, bk. IV, ch. 2 (1765). Blackstone summarized the rationale underlying all excuses, including duress, as "the want or defect of will." Id. at 21.
6. See John Lawrence Hill, A Utilitarian Theory of Duress (forthcoming 1998) (presenting a discussion and critical analysis of the traditional theory).
7. The distinction between excuse and justification defenses has been the subject of considerable scholarly analysis. The distinction has been cast in terms of the difference between condoning an act (justification) and holding that, while the act is otherwise morally or legally impermissible, the actor is not morally or legally responsible for its commission (excuse). See Kent Greenawalt, Distinguishing Justifications From Excuses, LAW & CONTEMP. PROBS., Summer 1986, at 89 (discussing the distinction critically).
8. See, e.g., P.S. ATIYAH, PROMISES, MORALS AND THE LAW 23 (1966); WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed., 1986); WERTHEIMER, supra note 1; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (2d ed., 1961). But see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 830-31 (1978) (arguing that the traditional model is an accurate way of stating the basis for duress).
9. See, e.g., P.S. ATIYAH, PROMISES, MORALS AND THE LAW 23 (1966); WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed., 1986); WERTHEIMER, supra note 1; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (2d ed., 1961). But see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 830-31 (1978) (arguing that the traditional model is an accurate way of stating the basis for duress).
10. See, e.g., P.S. ATIYAH, PROMISES, MORALS AND THE LAW 23 (1966); WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed., 1986); WERTHEIMER, supra note 1; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (2d ed., 1961). But see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 830-31 (1978) (arguing that the traditional model is an accurate way of stating the basis for duress).
11. See, e.g., P.S. ATIYAH, PROMISES, MORALS AND THE LAW 23 (1966); WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed., 1986); WERTHEIMER, supra note 1; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (2d ed., 1961). But see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 830-31 (1978) (arguing that the traditional model is an accurate way of stating the basis for duress).
12. See, e.g., P.S. ATIYAH, PROMISES, MORALS AND THE LAW 23 (1966); WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 433 (2d ed., 1986); WERTHEIMER, supra note 1; GLANVILLE WILLIAMS, CRIMINAL LAW 755 (2d ed., 1961). But see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 830-31 (1978) (arguing that the traditional model is an accurate way of stating the basis for duress).
13. See MODEL PENAL CODE § 2.09(1) (1962) (using the language of the traditional model, albeit with an objective standard). The Code states that "[i]t is an affirmative defense that the actor engaged in the conduct . . . because he was coerced to do so by the use of, or a threat to use, unlawful force . . . which a person of reasonable firmness in his situation would have been unable to resist." Id. The emphasis upon exculpatory, rather than justificatory, analysis is clear in contemporary case law. For example, one recurring issue is whether the threatened harm was imminent enough to warrant a defense. See, e.g., State v. Toscano, 378 A.2d 755 (N.J. 1977) (permitting the defense even where the threat is not imminent). This makes clear that modern courts continue to examine the effects of a coercive threat upon the actor, rather than a "lesser evils" weighing of the relative harms endemic of the threat and the offense, respectively.
14. Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits 62 S. CAL. L. REV. 1331, 1365 (1989).
15. Id.
16. Id. at 1367 (emphasis in original).
17. Id. at 1365.
18. As we shall see, there are inherent ambiguities with respect to the use of the term "voluntary." See infra notes 16-20 and accompanying text (discussing Wertheimer's "rationalized" definition of voluntariness); see also infra Part III (discussing two other senses of the word "voluntary").
19. WERTHEIMER, supra note 1, at 3-5.
20. Id. at 9.
21. Id. at 9-10; see id. at 46-48 (discussing the implications of void and voidable contracts).
22. id. at 164.
23. Id. at 31.
24. Id. at 165-69.
25. Id. at 305.
26. See generally id. at 287-306 (discussing parallels of coercion in morality with coercion in the law).
27. Id. at 168.
28. One example of this is the recent abrogation of the "no murder" rule. At common law, duress was not permitted as a defense to murder. More recently, however, the Model Penal Code and a number of state decisions have permitted the defense in cases of murder. See Dressier, supra note 10, at 1370-74 (arguing that the recent elimination of this common law limitation in the Model Penal Code evinces the exculpatory nature of duress).
29. WERTHEIMER, supra note 1, at 168-69.
30. Id. at 30.
31. See id. at 8 (arguing that, if it is workable, an empirical theory would be more attractive).
32. See id. at 179-91.
33. Id. at 181.
34. Id. at 181-82.
35. Id.
36. Id. at 301.
37. WERTHEIMER, supra note 1, at 301. Wertheimer writes: On this view, B acts voluntarily when B succumbs to a proposal that A has a right to make, even if it is one which B finds unattractive and would prefer not to receive. Why? Because B himself is committed to the principles which grant A the right to make the proposal. On the other hand, B acts involuntarily when A makes an immoral proposal (a moral baseline threat) because A's proposal attempts to get B to act contrary to his deep preference that he not be made to act in response to immoral proposals. Id. (emphasis in original).
38. Wertheimer appears to waffle here regarding whether the defining principles are those which the victim does or should affirm. At one point, Wertheimer argues that it is the principles to which the victim is committed which count Id. at 302. His discussion of "wantons" and egoists appears to confirm this. Id. at 303. On the other hand, he suggests that the defining principles are those which the victims should accept. Id. at 301. Both positions have problems. See supra notes 62-63 and accompanying text.
39. WERTHEIMER, supra note 1, at 302.
40. Id.
41. The theory of voluntariness is "rationalized" in the sense that it makes one's volitional capacity a function of reasons or, more accurately, considered moral judgments. Rationalized accounts can be distinguished from empiricist accounts of motivation, which hold generally that reason has no role in the motivational mechanism of human behavior. On the latter view, reason has, at most, only instrumental significance: it tells us how to satisfy some end. See Wright Neeley, Freedom and Desire, 83 PHIL. REV. 32 (1974) (discussing these competing conceptions of motivation); see also infra note 62 and accompanying text (discussing the rationalized account).
42. These are situations in which the actus reus requirement in the criminal law is not met, or where an act is not volitional for purposes of intentional torts. The Model Penal Code § 2.01(1) requires a "voluntary act," and specifically excludes the following from the class of voluntary acts: reflex movements, bodily movements during unconsciousness, acts performed under hypnosis, and other acts not the product of a conscious determination by the actor. MODEL PENAL CODE § 201 (1962). Similarly, in tort law, a volitional act is one requiring a mental element representing some corresponding motivational force, such as an intention or desire, and a corresponding bodily movement. PROSSER AND KEETON ON TORTS 33 (5th ed., 1984). This dualistic test, requiring a physical and mental element, can be traced back at least as far as the writings of John Austin in the 19th Century, though it is evident in case law before then. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 97-98 (1968) (discussing Austin's view of the act requirement).
43. These are situations in which the actus reus requirement in the criminal law is not met, or where an act is not volitional for purposes of intentional torts. The Model Penal Code § 2.01(1) requires a "voluntary act," and specifically excludes the following from the class of voluntary acts: reflex movements, bodily movements during unconsciousness, acts performed under hypnosis, and other acts not the product of a conscious determination by the actor. MODEL PENAL CODE § 201 (1962). Similarly, in tort law, a volitional act is one requiring a mental element representing some corresponding motivational force, such as an intention or desire, and a corresponding bodily movement. PROSSER AND KEETON ON TORTS 33 (5th ed., 1984). This dualistic test, requiring a physical and mental element, can be traced back at least as far as the writings of John Austin in the 19th Century, though it is evident in case law before then. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 97-98 (1968) (discussing Austin's view of the act requirement).
44. See MODEL PENAL CODE § 4.02(2) (1962) (providing for mitigation of punishment in capital cases where some mental defect has impaired the defendant's mental state or the capacity to conform his conduct). Other criminal law doctrines such as the heat of passion defense, more recently dubbed the "extreme mental or emotional disturbance" test, have served a similar function. The Model Penal Code provides that a murder charge may be reduced to manslaughter "when the murder is committed under extreme mental or emotional disturbance (EMED) for which there is reasonable explanation or excuse." MODEL PENAL CODE § 210.3(1)(b) (1962); see Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, 466-67 (1982), for a limited defense of the EMED excuse.
45. For a more detailed analysis of the relationship between the availability of external choice options and voluntariness, see Hill, supra note 6.
46. MODEL PENAL CODE § 2.09 (1962); RESTATEMENT (SECOND) OF CONTRACTS § 492 (1981).
47. Some commentators have argued that duress should be viewed as an excuse. See Dressier, supra note 10, at 1350; Fletcher, supra note 8, at 829-31; Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091 (1985). Others defend the view that duress is a justification. LAFAVE & SCOTT, supra note 8, at 433; WERTHEIMER, supra note 1, at 166; WILLIAMS, supra note 8, at 755.
48. Dressier, supra note 10, at 1370.
49. See id. at 1373-74 (arguing that "[s]ociety also has a right to expect a person to demonstrate a higher level of moral strength when ordered to kill a hundred innocent children than when commanded to kill one").
50. Id. at 168.
51. Strictly speaking, where the rationale for duress is viewed to be exculpatory such that the victim is not responsible for his act, the gravity of the resulting act should be irrelevant. While criminal law does place substantive limitations on this by requiring a proportionality between the threatened harm and the act, it nevertheless permits a defense in situations where justification could not apply, such as where the harm created by the victim is greater than or equal to the threatened harm.
52. Alan Wertheimer, Address at the Coercion Symposium at the University of Denver College of Law (Mar. 14-15, 1997).
53. WERTHEIMER, supra note 1, at 30-46 (discussing the sorts of considerations relevant to coercion on a moralized theory).
54. Id. at 184.
55. Id.
56. Id. at 184-85.
57. Id. at 181.
58. Id. at 182.
59. Thus, if we operationally define as "cold" any temperature that falls below the average temperature for a particular region at a particular time of the year, the truth conditions for coldness will be the same in Miami as they are in Vermont. Although, of course, the background conditions by which coldness is measured will vary from one region to another.
60. "Moral realism" is used to refer to any view that holds that moral propositions reflect some external reality, or are true or false in something like the way empirical statements are. "Moral relativism" is a meta-ethical view that rejects moral realism - i.e., by arguing that moral propositions reflect the individual's (individual relativism) or his culture's (cultural relativism) view of what is right and wrong. "Noncognitivism" is the view that we cannot know the truth or falsity of moral propositions - i.e., that moral statements do not refer to some knowable object.
61. Id. at 181. There simply is no way to reconcile a moral realist account of coercion with the claim that two persons can reach diametrically opposed positions about the same situation and both can be correct.
62. Harry Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. PHIL. 5 (1971).
63. Aristotle, supra note 4, at 935, 938.
64. An example of a second-order mental state is having a desire to inculcate a first-order desire to enjoy classical music, or to have a (second-order) intention to restructure one's first order desires. In short, second order mental states are mental states that have as their intentional object some first-order mental state.
65. Gary Watson, Free Agency, 72 J. PHIL. 205 (1975).
66. I have argued in a previous piece that one dimension of autonomy is the vertical relationship between first and second order mental states, as Frankfurt argues. Another dimension of autonomy is the horizontal relationship between various second-order desires - i.e., that one's second order desires are consistent with one another so that they do not frustrate one another. John Lawrence Hill, Law and the Concept of the Core Self: Toward a Reconciliation of Naturalism and Humanism, 80 MARQ. L. REV. 289, 377-80 (1997).
67. WERTHEIMER, supra note 1, at 9.
68. WERTHEIMER, supra note 1, at 305.
69. MODEL PENAL CODE § 2.09(2) (1962).
70. See supra note 24 and accompanying text for a discussion of the abrogation of the "no murder" rule under the Model Penal Code.
71. See Hill, supra note 6, at Part IV (discussing an account of the theory).