ARSP-Beiheft 120 Franz Steiner Verlag Friedrich Toepel (ed.) Sonderdruck aus: Free Will in Criminal Law and Procedure Proceedings of the 23rd and 24th IVR World Congress Krakow 2007 and Beijing 2009 @ Franz Steiner Verlag 2010 gg NomosJUAN Pablo Maniauicn, Santiago (Cute) DETERMINISM, FREE WILL AND CRIMINAL RESPONSIBILITY The article presents an argument in favor of a compatibilistic account of free will as ctiterion for the attribution of personal responsibility, stressing that freedom of the will must be understood not in terms of indetermination but rather in terms of self determination, In applying the argument to the specific structures of criminal re- sponsibility, the article discusses how law-abidance must be seen as personal prefer- ence of an agent who is member of a democratic political community. 1, DETERMINISM, INTENTIONALITY AND AGENCY a) Determinism and avoidance Determinism is the thesis that “there is at any instant exactly one physical possible fature”.! Yet determinism does not imply fatalism, that is, the inevitability of events. Ina fully determined world, there are things some agents can in fact avoid, inas- much their evolutionary design allows them to foresee the occurrence of a certain event and to decide to prevent it. Neither does determinism imply the predictability of events.* Determination is an ontological property of events, whereas the predict- ability of an event concetns an observer's epistemic capacity. For the prediction of an event it is essential that generalized correlations between certain types of events and other types of events be available, which can be more or less strict. ‘The thesis that the identity of mental and physical events entails the determina- tion of the former stems from the so-called principle of the causal closure of the physical world. Against this claim it is often argued that quantum physics would refute it, since the behavior of electrons at subatomic level would appear to be un- determined.* There seem to be good reasons, however, to restrain this interpretation of quantum physics to a microphysical level, so that no direct argument at the level of the philosophy of biology or of philosophy of mind be made out of it But even if one accepted the transference of microphysical indetermination to a macrophysi- cal level, no foundation of an indeterministic conception of free will would be gained, since undetermined events do not necessatily represent freely willed ac- tions.> The evolutionary design of agents that are capable of intentional avoidance concerns some properties that are described, for the most, by reference to biological 1 Peter Van Invwagen, An Essay on Free Will, 1983, 3; Daniel Dennett, Freedom Evolves, 2003, 25 2 Gethard Roth, Ftbles, Denken, Handeln, 2003, 504-11; Michael Pauen, Musion Freieit?, 2004, 32-33, 3. John Searle, Mind. A Brief Introduction, 2004, 16-17 4 Michael Esfeld, Holismus in der Philosophie des Gestes und in der Philosophie der Physik, 2002, 351~ 60 5 Jiirgen Schiéder, Hinfibrung in die Philosophie des Geistes, 2004, 310-1150 Juan Pablo Mafalich and mental features. The fact that these properties entirely supervene on properties that can be described in terms of purely (macro-)physical features does not entail the reducibility of the sort of explanation achieved through reference to biological and mental properties to a sort of explanation that exclusively refers to properties de- scribed in a physicalist vocabulary. b) Intentionality and agency Intentionality stands for a distinctive property of certain mental states, which rests oon the fact that these states refer to a given object the existence ot inexistence of which is independent of the subject of the intentional state.® In this technical sense, intentionality means “aboutness”, When the given intentional object has the logical form of a proposition, the correspondent intentional state is defined as a proposi- tional attitude. “Believe”, “think, “wish”, “expect”, among others, are verbs which express propositional attitudes, in the sense that in ordinary speech we typically use these verbs by uttering sentences which are normally followed by a subordinate sentence which begins with the conjunction “that” and expresses a certain proposi- tion.” The ascription of propositional attitudes is the definitive moment of the expla- nation of actions.* An event is interpreted as action when there is at least one true description under which it appears as intentional behavior of someone.’ This does not mean that all action must be intentional action. But it does mean that all action must be intentional behavior. Oedipus’s killing of Laius is an action, because there is a true description of Oedipus's behavior under which it was intentional (which means: the object of a propositional attitude of Oedipus), for instance the killing of a traveler, which does not mean that the action of killing Laius was intentional, since Oedipus did not know he was killing Laius. What comes to attention here is the opacity or “intensionality” of the ascription of propositional attitudes. Intentional explanation may thus be defined as explanation by means of new description, ! 6 Franz Brentano, Pocholagie vom empirschen Standpuntt I, 1924, 124-28; Schrder (note 5), 133 43; Emst Tagendhat, Selbstheussisein und Selbstbestinmung, 1979, 18-22 7 See Tugendhat (note 6), 20-21. The desctiption of the expression “that ...” as a subordinate sentence concerns its grammar, not its semantics, since from this point of view the clause works as a singular term. Hereto Donald Davidson Inquiries into Truth and Interpretation, 1984, 93-108, 8 Donald Davidson, Eisays on Actions and Events, 2001, 3-19, 43-61; Donald Davidson, Problems ‘of Rationality, 2004, 101-16, 151-66 r 9 See Davidson (note 8), Hisays 43-47, Simester argues, on the contrary, that intentionality cannot make a general eature of action, since that would not give account of some forms of negligent actions. See AP. Simester, Agency, Law and Philosophy 15 (1996), 172-75. Simester does not recognize, however, that negligence may indeed be understood as a criterion of responsibilty that enables imputation although the agent was not capable, at the decisive moment, to inter. tionally avoid wrongful conduct, whereas she could have intentionally avoided to put herself in that situation. Sce H.L.A. Hart, Punishment and Responsiiliy, 1968, 136-57; Joachim Hruschka, Imputation, Brigham Young Univesity Law Review 1986, 686-90, 696-98. 10 Davidson (note 8), Essays, 109-10; Davidson (note 8), Problems, 105Determinism, Free Will and Criminal Responsibility 51 Intentionality designates therefore a necessary condition of the counterfactual assumption that underlies all ascription of actions.!! “Action”, used as ascription term, expresses a relation between an actual event and a counterfactual event, namely the event that would have taken place, if the agent had omitted the action that he actually performed, This counterfactual assumption that underlies the ascription of actions entails an implicit reference to the possibility of avoidance and thus to the controllability of an event's occurrence.!2 Hence, intentionality represents a central criterion of agency. The ascription of propositional attitudes, that is, of beliefs, desires, expectations and so on, is essentially holistic, for it is not possible to have one belief without hav- ing, at the same time, a pretty large number of further beliefs.!? The ascription of propositional attitudes, just like the ascription of meaning to the utterances of a speaker, occurs under a condition of potential indeterminacy." Therefore, the gen- cralizations that are relevant for the explanation of events described through refer- ence to intentional properties always include ceteris paribus clauses.'5 The decisive feature of these generalizations is that they cannot be homonomic, as the strict laws of physics are, but only Aeteronomic, which means that they consist in generalizations that correlate types of events possibly described in different vo- cabularies.' Some of these generalizations correspond in fact to the standards we apply when we explain action in terms of folk psychology. Explanations of this sort can be understood as rationalizations of actions, since they are based on the identi- fication of propositional attitudes, or more precisely, of certain “pro-attitudes” com- bined with the proper set of belief states, which constitute the reasons that explain their performance.”” This kind of rationalization of action is made possible by the use of standards that are partially normative, in the sense that they require that the interpreter ascribe a consistent set of correct beliefs to the agent, a supposition that can be articulated in terms of the so-called principle of charity, which represents a “policy of rational accommodation”.!® ©) Physicalism, multiple realization and non-reductionism The recourse to intentionality as essential criterion of agency does not presuppose a dualistic ontology, even if one rejects the reducibility of intentional to purely phys- ical explanations. The critical consideration hereto concerns the so-called multiple realization problem. Multiple realization of mental properties means that the very 11. See Urs Kindhiuser, intentionale Handlung, 1980, 111-12. This does not mean, however, that ac- tions should not be seen as a special class of events. One can rather assert that actions are events, the description of which includes the mention of properties which imply such counterfactual moment. Hereto Davidson (note 8), Essays 43-61, 105-22, 293-304. 12 Kindhauser (note 11), 172-75, 202-15 13 Donald Davidson, Subjective, Intersubjective, Objective, 2001, 123-34; Davidson (note 8), Problems, 10-12; Esfeld (note 4), 48-68 14. Davidson (note 7), 125~70. See further W.V.O. Quine, Word and Object, 1960, 26-30, 68-72 15 Davidson (note 8), Problems, 111-12; Dennett (note 1), 40, 16 Davidson (note 8), Essays, 219-23 17 Davidson (note 8), Essays, 3-8 18 Davidson (note 8), Problems, 35-3652 Juan Pablo Mafialich same psychological state can have more than one physical realization, such as when two different persons share the same belief.!? The important argument regarding multiple realization claims that the super= venience of the mental to the physical, which allows the assertion of identity be- tween the realized and the realizing states without having to imply any epiphenom- enalism of the mental? cannot be conceived as a relation of local supervenience. The supervenience of mental states on physical states means that although there can be no qualitative difference between belief-states (or other propositional attitudes) if there is no qualitative difference between the corresponding physical states on which the former are realized, the contrary is not the case, so that two sets of belief-states can indeed be identical even if the corresponding physical states are qualitatively different. Yet: [...] subjective states are not supervenient on the state ofthe brain or nervous system: two peo- ple may be in similar physical states and yet be in dissimilar psychological states. This does not ‘mean, of course, that mental states are not supervenient on physical states, for there must be a Physical difference somewhere if psychological states are different. But the interesting physical difference may not be in the person [...]2 The important point here is that multiple realization does not exclude the possibil- ity of identity between mental and physical states (that is, between events described in mentalistic vocabulary and events described in physicalist vocabulary), but only the possibility that such identity relation be a 1:1*relation.® The supervenience of ‘mental states on physical states must thus be seen as a relationship of global super- venience, in the sense that the total amount of a person’s mental states supervene on physical states of her brain and the environment, without to imply that each given mental state could be identified with one corresponding physical state.2 2. Compatibilism and autonomy a) Intentionality, free will and compatibilism The ascription of propositional attitudes is the decisive moment of the explanation of actions. This is why the imputation rules of the criminal law refer to intentional capacities. The complex capacity to follow a legal conduct rule, which establishes 19. Esfeld (note 4), 196-201; Jacgwon Kim, Mind in a Physical World, 1998, 2-8 20. The thesis of the epiphenomenalism of mental properties, which is founded on the superve- rience argument, assets that, although mental events are causally effective, this causal effective ness exclusively depends on their physical properties, which would entail that mental properties are purely epiphenomenal. See Kim (note 19), 38-47. This argument does nat refute Davidson's Anomalous Monism, since this position holds that there is no ontological difference between physical and mental properties, for mental properties are just physical properties under another description. Hereto Donald Davidson, Tih, Language and History, 2005, 186-200. 21 Davidson (note 13), Subjective, 61-62 22. Esfeld (note 4), 198-99 23, Davidson (note 13), Subjective, 43~ 149-60 24 Davidson (note 8), Eisays, 3-8, 72-74; Davidson (note 8), Problems, 105-09 Davidson (note 8), Problems, 130-31; Esfeld (note 4),Determinism, Free Will and Criminal Responsibility 53 the object of possible criminal responsibility, is no other than the capacity to build and fulfill intentions of first and second order, that is, the (first-order) intention to do or not do something, and the (second-order) intention to build such an intention in compliance with the norm that commands or forbids the deed in question. One can thus designate the first capacity as action-capacity and the second as motivation- capacity, so that the ascription of responsibility can then be reconstructed as a two- level judgment.?> Michael Moore’s distinction between prima facie and definitive culpability can be interpreted exactly in this sense.26 To be an agent who is capable of being held responsible for wrongful (but also rightful) conduct is therefore to be an agent towards whom it is not only possible to adopt an intentional stance, but also a personal stance: persons are, at least, second-order intentional systems.” Such an account of the attribution of criminal responsibility can be seen as an application of Harry Frankfurt’s well-known conception of free will which has received a good amount of attention in the discussion on freedom and determinism. Frankfurt defines freedom of the will in terms of a person's capacity of willing to have the will she wants to have.” This capacity must be regarded, according to Frankfurt, as the decisive criterion for the application of the concept ofa person. For only a person can have the kind of mental state, which can be seen as a kind of propositional attitude,” that Frankfurt calls a second-order volition. Thus, one can differentiate the kind of entity that we acknowledge as a person, on the one hand, from the kind of entity that Frankfurt calls a “wanton”, on the other hand, who is someone that, although capable of having second-order desires, does not appear to have second-order volitions, This points to the fact that volitions are desires which show effectiveness, which means that a first-order volition is a de- sire “that moves a person all the way to action”." so that a second-order volition would be a desire that moves a person “all the way” to having a certain volition. This capacity of cating about one’s own will, which according to Frankfurt is the distinc- tive feature of personhood, constitutes the core of freedom of the will. Frankfurt claims that his analysis of free will is fully compatible with the truth of determinism, since the fact that a person’s second-order volitions could be caus- ally determined places no obstacle to the assertion that she may indeed be capable of having the will she wants to have.2? This is why Frankfurt’s view on free will makes a common place in the discussion about the plausibility of compatibilism.33 25. Hruschka (note 9), 672, 682-84 26 Michael S. Moore, “Prima face moral culpability”, Boston University Lavo Rev. 76 (1996), 319-20 27 Daniel Dennett, Brainstorms, 1981, 236-39, 273-85 28 Harry Frankfurt The Importance of What We Care About, 1988, 11-25; Harry Frankfurt, Taking Ouasedoes Serious & Getting It Right, 2006, 14-16 29 Frankfurt (note 28), Importance, 20; Dennett (note 27), 283-85 30. Emnst Tugendhat Eiyithrang in die sprachanalytsche Philosophie, 1976, 97-102; Tugendhat (note 6), 18-22, 200-1 31 Frankfurt (note 28), Jmportance, 14 32 Frankfurt (note 28), Importance, 20 33 See the contributions in David Widerker and Michael Mackenna (ed.), Moral Responsibility and Alternative Possibilities, 200354 Juan Pablo Mafialich b) Freedom without alternate possibilities? From the beginning one should notice that the plea for compatibilism entails, at least forthe sake of argument, the assumption of the possible truth of determinism, whereas incompatibilism can be committed either to the truth of determinism or to the truth of indeterminism. Itis often presupposed, however, that only determinism would face difficulties in arguing in favor of fiee will, the most important of which refers to the so-called principle of alternate possibilities (PAP). But this is far from meaning that no difficulty arises for indeterminism, since this position must indeed face the problem that without determination of a deed it seems hard to justify its attribution as action to someone. The difficulty comes, therefore, with the require. ments of agency. For it is essential to agency that the agent can be seen as effectively conditioning the event that constitutes the object of asctiption, since otherwise itg occurrence would be purely random.4 The question that now arises points to the way in which the deterministic char- acter of willed actions could be compatible with the principle of alternate possibili- ties (PAP). An easy way-out would consist in renouncing to PAB, in order to defend a conception of free will for which the existence of alternate possibilities were irrel- evant. This is exactly the view Frankfurt maintains in his very well-known and much discussed article “Alternate possibilities and moral responsibility”,}5 whereas his ar. Bument concems cases of possible over-determination of a decision to perform a Biven action. This would be for instance the case of a person that has already de- Cided to do something, but who afterwards is coerced by another person to do ex. actly the same thing, If one assumes that the first person has been impressed by the threat in the same way as any normal person, one could then assume that she would sail have had the same will to perform the given action, had she not made the pre- ceding decision. Yet according to Frankfurt, this would not exclude that, even when acting motivated by the threat, the coerced person has still acted in correspondence With a second-order volition of her own, since she had already decided to perform the given action. Despite its recognition, Frankfurt’s argument does not hold.” For his argument Violates a decisive condition of the application of PAP. Regarding the case just pre- sented, Frankfurt assumes that the threatened person has acted in accordance with a decision made freely by herself although she had no alternative to having the will that she had, since, because of the threat, she would have decided to perform the action anyway. This presupposes, however, that the coercion exercised by the see. Gnd person was not relevant for the fist person’s motivation to act. But by adding that still without having made such prior decision, the first person, due tothe threat would have decided to perform the same action anyway, Frankfurt introduces 4 modification of the circumstances in the context of which the presence of the alten native to the actual course of events is to be analyzed. This move infringes a crucial 34 Peter Bieri, Das Handuwrt der Freibet, 2003, 21-24, 81-83, 230-49; Pauen (note 2), 15-16, 48-49 35 Frankfurt (note 28), Importance, 1-10 36 Davidson (note 8), Essays, 74-75; Pauen (note 2), 115-18Determinism, Free Will and Criminal Responsibility 55 requirement of the application of PAP, namely that the background conditions of the decision to act must remain unaltered.37 ©) The conditional interpretation of PAP The argument for compatibilism cannot simply avoid the test of PAP. It is important here to notice that PAP is usually formulated in terms of the question of whether a person could have acted differently as she indeed acted. In this way, however, one does not reach yet the problem of freedom of the will, but only the question of freedom of action. In Frankfurt’s own words, the problem of fice will does not con- cern the issue of whether someone is free to do what he wants, but rather the issue of whether he is free to have the will he wants to have.38 To ask about alternatives at this level is to ask whether the person was capable of willing to have a different will from the one she actually had. The argument is usually traced back to G.E. Moore’s analysis of the term “could” as used in the formulation of PAP? Moore differentiated two interpretations of “could”, whereas the traditional assumption that determinism would be incompati- ble with PAP presupposes an unconditional interpretation: an action is free only if the agent could have done otherwise (“no matter what”). Under this unconditional interpretation, the truth of determinism precludes freedom in terms of PAP, since there can be no alternative course of events in a world which is fully determined. Moore’s proposal, on the contrary, consisted in a conditional interpretation of “could” as used in the formulation of PAP: an action is free only if the agent could have done otherwise, in case he had chosen to do so.!° Such a conditional formulation of PAP does not yet touch, however, the prob- lem of free will. Freedom of the will requires that the person could have willed to have a different will from the one with which she actually acted. Hence, one has to formulate the principle at the level of second order volitions. Under the proper re- statement, what Moore’s conditional interpretation suggests is the possibility of re- garding the agent’s own second-order volitions as part of the total causal history of the action, which then could be seen as self-determined by the agent. Under this formulation, PAP does not require that any alternative to the decision was in fact possible, but only the alternative that would have corresponded to the person's deci- sion if she had wanted to decide otherwise. Thus, it becomes possible to restate the application condition of PAP that was violated by Frankgfurt’s intent to define free will without alternate possibilities. That condition must be conceived in the sense that the non-variation of the circum- stances that build the situation of the actually performed action must cover all the conditions that are relevant for the given decision, except for the agent’s own voli- tional dispositions that were relevant for it. That the talk on decisions is justified in 37, Pauen (note 2), 108-9, 188 38 Frankfurt (note 28), Importance, 19-20 39. GE, Moore Bihics, 1912, 84-95, 40 Michael S. Moore, “Causation and the Excuses", California Law Rev. 73 (1985), 11424456 Juan Pablo Mafalich this context results from the fact that decision-making can indeed be seen as a pro: cess which concludes with the production of reasons for action.4! 3. SELF-DETERMINATION AS SELE-CONSTITUTION a) Infinite regress? Against this solution it could be argued that it is indeed no solution at al, since the reference to higher-order volitions would inevitably lead to an infinite regress: in order to establish self determination at the level of second-order volitions, one would have to introduce a reference to third-order volitions, and so forth. Yet the answer must be construed not as a solution to the problem of infinite regress, but rather as its dissolution, What one requires is a view that enables the identification of properties of decisions that are internal to the agent's identity in the sense that a decision which exhibits those properties can be interpreted as self-determined."? To ask for alternate possibilities at that stage would be to ask for an alternative to the person herself, which is pointless. For the important distinction here is not between determination and indetermi- nation, but between autonomy - that is, self determination and heteronomy.® The crucial remark concerns the fact that itis not the case that behind every cause there must be a causer."' The very idea of “ultimate agency” of “altimate responsibility” becomes thus pointless. For at least in principle, the internal and extemal factors which determine the will expressed in the decision to perform the given action can. not be seen as impediments, but rather as genuine preconditions.° An unbounded, unconditioned will would be, on the contrary, nobody's will and therefore no will at all, since an undetermined will, to speak with Hegel, cannot be but the pure abstraction of the absolute possibility and hence “the freedom of emptiness”” Free. dom of the will must rather be understood as a will that contemplates its own con- ditioned nature as a self-determined one.** Among the properties that co-define a person’s self one should distinguish be- tween personal capacities and personal preferences. Personal capacities are those which enable a person to make decisions and perform or omit the actions that she decides to perform or to omit, which means: the capacities that are necessary to act according to one’s own preferences, For the consideration of an action as freely willed it is thus critical to establish which preferences can be held as constitutive for the person’s self, so that an effective decision to perform or not to perform an action in which the agent’s personal preferences are expressed can be regarded as self-deter. mined. 41 Joseph Raz, Practical Reason and Norms, 1975, 65-71 42. Frankfurt (note 28), Importance, 21 43. Pauen (note 2), 59-65 44 Davidson (note 8), Bays, 19 45 Bieri (note 34), 49-53; Moore (note 40), 1130 46 Bieri (note 34), 239-42 47 GEW. Hegel, Grundiinien der Philosophie des Rechts, 1821 § § 48 Hegel (note 47), §7Determinism, Free Will and Criminal Responsibility 57 b) Personal preferences There are two possible versions for this criterion.” According to the first version, a preference counts as personal if it is itself the object of an effective autonomous decision, which requires the person to be in position to critically evaluate and reject her own preferences. According to the second version, what is emphasized is the person’s disposition to reflexively identify herself with the given preferences, so that the decisive question points to the possibility of a positive self ascription of such preferences. Under this last version, freedom of the will becomes a matter of self. interpretation. The claim that, under any of both versions, the compatibilistic account of free will could not avoid the infinite regress, since the recognition of personal prefer- ences would now depend on the recognition of further preferences, which would itself depend on further preferences, and so on, is misplaced. For the answer to the question whether a person is capable of criticizing or identifying herself with a sys- tem of preferences does not depend on an actual ascertainment of those more fun- damental preferences, to which the exercise of this capacity relates. That there are such preferences does not mean that one can always establish which they are. To be sure, both versions of the criterion present difficulties. For the autonomy of a decision is, on both versions, a function of the correspondence between the preferences that determines which reasons explain the given action, and the system of preferences that define the person’s self-concept, whereas the former is to be evaluated in the light of the latter. Yet the crucial remark is that a clear delimitation of the preferences that are constitutive for the person’s self, on the one hand, from those that are to be evaluated in terms of their congruence with the first, on the other, cannot be thought of as being static.2° And this is true of each ascription of responsibility, at least if one acknowledges that the total image of an agent's self also depends on which are the deeds that can be seen as his own.! The concept of the self exhibits a certain plasticity, in the sense that there are no essential, irreplaceable properties of a person’s self, as well as a certain “scalarity”, in the sense that its application is not an all-or-nothing matter, but rather one of de- gree.*? This does not alter the fact, however, that such a self-conditioning of the self can only limitedly take place at any one time. At each moment in which I ask whether my own will is free, there is a piece of intemal soil that cannot be subject of this question, remaining as its very context.23 Therefore, the articulation of the con- cept of the self must avoid any commitment to essentialism, namely to the idea that the self could designate a mysterious entity that would correspond to the essence of the person. For there is no such entity, but only a complex interplay of properties which, although variable over time, stand as answer to the question, ata given time, of who a person actually is, Which means: the self is essentially contingent.*" Just as 49 Pauen (note 2), 75-96 50 Bieri (note 34), 400-2 51 MeirDan-Cohen “Responsibility and the Boundaries of the Self, Harvard Laz Rev. 105 (1992), 70 52 Dan-Cohen (note 51), 965-68 53 Bieri (note 34), 409-10 54 Pauen (note 2), 65-6858 Juan Pablo Mafalich the strength of a thread does not rest on a single strand that runs trough its whole extension, but rather on the fact that many different strands overlap with each other the identity of a person over time does not require the subsistence of a mys- terious substance, but only the recognition of a relative continuity of interrelated components. Yet at some stage a point must be reached where the question whether we have Positively decided ourselves for a given feature of our own personality becomes pointless. The image of a person being free from the features that, on the whole, constitute her own personality, has no sense. For there is no point in raising the question of whether [ am free from myself, since then the pronoun “I” has lost its reference. As Dennett puts it: “Ifyou make yourself really small, you can externalize virtually everything” 5° 4. AGENCY AS UNDETERMINED DETERMINATION OF EVENTS? An important argument for compatibilism asserts that only through the assumption of determination of the events that are ascribed as freely willed actions one can make sense of the notion of agency regarding the person to whom the event is as- ctibed. The commitment to indeterminism regarding freely willed actions would then appear to conflict with the requirements of agency, since their indetermination would imply their randomness. A way-out for the indeterminist would be open if he were able to hold that the agent's determination of her own action could itself be undetermined. Such a conception of agency can be found in the work of some German crimi- nal law theorists, who defend a concept of freely willed actions that pursues to ¢s- tablish the basis for the traditional doctrine of the so-called Regressverbot or “regress prohibition”” The cote of their position concemns the opposition between the no- tions of causa libera and causa naturais, according to which a “prohibition” to trace back the former causal history of an event applies if one identifies a singular cause that itself has no cause ~ for strictly speaking, it could have no prior causal his- tory.8 This strategy does not lead, however, to the expected outcome. The attempt to introduce an interruption of the causal chain that fully explains an action, in order to achieve a concept of freedom that makes sense of the agency principle, s inevita- bly helpless.® For an interruption of the precedent causal chain would always imply a denial of the causal relevance of the agent's own history (ic. her biography) regard. ing her decision to act, so that she could not be seen as conditioning her action by 55. Ludwig Wittgenstein, Pbilosophische Untersuchungen, 1984, § 67 56 Dennett (note 1), 122 57 Joachim Hruschka “Regrefiverbot, Anstifiungsbegriff und die Konsequenzen”, Zeitichrif fr die Sesame Strafrechtswissenschaft 110 (1998), 581-610; Jan Joerden, Strukturen des strajrechiichen Ver. ‘anctoortlichketsbegriffs (1988), 16-20, 30-35 58 Joerden (note 57), 30 59 Dennett (note 1), 103-26; Bieri (note 34), 239-42; Alfred Mele, Andonomous Agents, 2001, 8-13; Pauen (note 2), 162-75Determinism, Pree Will and Criminal Responsibility, 59 means ofa prior decision that itself were not random. The performance of the given action would then have no internal connection to the person’s identity. The problem of this indeterministic conception of freely willed action rests on the assumption that, in order to be labeled as freely willed, action must be, to some extent, undetermined, Such an account entails a purely negative understanding of autonomy as absence of determination. The picture of a new beginning of a causal chain due to the performance of freely willed action, however, does not make sense, since actions and decisions can only be characterized as autonomous if one can ex- plain them as the product of the beliefs, desires and preferences of the agent.‘ For there is no way of making sense of the idea that an agent could have control over a random course of events: “Wouldn't it be much safer -and hence more responsi- ble- to keep the randomizer inside you, under your watchful eye in some sense? No. Randomness is just randomness; it isn’t creeping randomness” * 5, SELF-DETERMINATION AND CRIMINAL RESPONSIBILITY a) Law-abidance and democratic culpability It is the capability of intentionally acting on reasons that an agent can see as his own, because they are reasons which express personal preferences of him, what makes the core of the idea of freedom of the will understood as criterion for the at- tribution of definitive personal responsibility. Yet there is a particular feature of criminal responsibility that is to have critical impact on this compatibilistic account of free will. For this account assumes that there is a variable set of preferences that are constitutive for a person’s contingent identity. And although it may be particu- larly difficult to determine which preferences count as such, this difficulty does not alter the fact that there are such preferences. When it comes to the connection between free will and ctiminal culpability, however, it suffices to acknowledge that the commitment to the existence of per- sonal preferences is indeed plausible. For the ascription of criminal responsibility must be conceived as taking place under a counterfactual assumption of personal compliance with the legal norm as personal preference of the citizen who may be made responsible for its violation. This counterfactual assumption can be under- stood as an hypothesis of loyalty to law, which means that the subject of imputation must be tegarded, from a legal point a view, as law-abiding person. And exclusively on the legitimacy of this hypothesis certainly depends the justification of what can be called material - and not purely formal - culpability. The construction of this hypothesis concerns the problem of whether the defea- sible and provisional legitimacy of a norm could be inferred from its legality, that is, from its legal validity. One way to render such an inference rests on the possibility of regarding the person from whom the compliance with the norm is legally ex- 60 Pauen (note 2), 147-52; Mele (note 59), 11-13, 61 Dennett (note 1), 133 62 Bieri (note 34), 61-65; Pauen (note 2), 74-75 63. Uns Kindhiuser, "Rechtstreue als Schuldkategorie”, Zeitschrift fl die gesamte Strafcchtewistenschaft 107 (1995), 701-2, 725-2760 Juan Pablo Mafialich Pected as its very author, so that the norm may be seen as fer norm. This presup- Poses the acknowledgment, essential to democratic justifications of the authority of law, that the person who is made responsible for criminal wrongdoing may be seen as playing a double role with regard fo the norm, the violation of which is imputed as culpable wrongdoing, The attribution of such a double role follows from the in- femal connection that holds between citizenship and legal personhood, which makes the core of what Klaus Giinther calls “deliberative personhood” The ascription of this double role rests upon an interplay of two different di- mensions of autonomy. Citizenship relates to the factual possibility of exercising Political autonomy, a distinctive feature of which is the potential participation in Public discourses referred to the validity of common norms. Citizenship means thus Possible participation in “justification discourses”. The opposite side concerns the Position of the very same person in exercise of private autonomy, where the scope for permissible action is limited by the rules which prescribe how she is to act. Thc double ascription of autonomy enables a symmetrical expectation of reciprocity regarding the compliance with the common norms that bind each member of the Political community. Only under conditions of democratic legitimacy can one con. sider the binding effect of legal norm as autonomous, ‘The material ground for criminal responsibility must thus be seen as the unilat- cral appropriation of the switch between those two roles. The regulation and institu. Honalization of the interplay between the positions of author and addressee of valid legal norms stands as critical feature of democratic legal systems. As citizen, the subject can question and pursue the modification or abrogation of legal norms, but she may not invoke the exercise of this political right in order to discharge herself of following the norm in a situation in which she is immediately obligated to do so. A erson’s culpability within a democracy can only be traced back to a breach of the ‘mutual expectation of reciprocity with regard to the definition ofthe political game as the instance in which citizens can argue for the revision and cancellation of theis own norms. b) Imputation rules and legal personhood The notion of material culpability can only be settled if one is able to offer a jusif- cation for the claim that the norm, which defines the wrongdoing for which ean be held responsible, is my norm.§ For the justification of that claim makes a genuine precondition of criminal lability, upon which all further conditions of liability de- pend. In order to be responsible for wrongdoing one must be answerable befose someone. And this someone can only be the correspondent political community itself: “For one account of the moral conditions of the obligation to obey the lave and of being answerable through the courts, is expressed in terms of community, The defendant is obligated to obey the law in virtue of his membership of « coms G4 Klaus Giinther, Schuld und kommunibative Freibit, 2005, 97-105, 245-58 65 Gitnther (note 64), 252-53, $6 Michael Detmold, “Law as Practical Reason”, Cambridge Lavo Journal 48 (1989), 455-63 67 KA, Dull “Law, Language and Community: Some Preconditions of Criminal Liability” Oxford Journal of Legal Studies 18 (1998), 192Determinism, Free Will and Criminal Responsibility 61 munity whose law it is”. And this is only possible if the defendant can see the language of the law as his own, that is, “speak it in an authentically first personal voice”? Itis critical to recognize, however, that in order not to collapse the judgment on legal culpability into a moral one, a critical self-identification with the legal norm as a valid reason for action is not to be expected from the defendant.” This means that the actual motivation of the subject plays no role in establishing whether she is criminally responsible for wrongful action. The motivation to observe the norm as effective reason for action must be seen, on the contrary, as a counterfactual as- sumption that underlies imputation, so that the conditions of personal responsibil- ity can be formulated as a set of specific negative conditions fixed in legal imputa- tion rules. When these special conditions are indeed satisfied, compliance with the norm ceases to be expected, either because the actual motivation capacity is seen as failing ~ «.g, in case of insanity or infancy ~ or because in the specific given situation a lawful motivation would lead to a major personal sacrifice - e.g. in case of du- ress, The fact that these conditions are fixed in legal rules means that a normative concept of personhood is also fixed under these rules. This suggests that, to some extent, the criminal law's concept of personhood becomes objectified. Yet the gen- eralization implicated in such objective definition is, to some degree, inevitable, For the possibility of identifying necessary conditions of personhood does not imply that the identification of sufficient conditions must also be possible.”! 68 Duff (note 67), 197 69 Duff (note 67), 198-99; Detmold (note 66), 468-69 70 Klaus Giinther “Individuelle Zurechnung im demokratischen Verfassungsstaat® Jabrbuch fir Recht sand Etbik 2 (1994), 156; Kindhituser (note 63), 726-27 71 Dennett (note 27), 285