Response to Austin and Hart
It is interesting to read Austin’s theory of action after hearing James’s and Hart’s criticisms of it just a week ago. I will side with the latter. Though Austin admits that muscular movements are a means to the ends which a person desires, he still considers these movements to be ends in themselves. This would make the movements the objects of conscious thoughts. In my opinion, most physical actions, not just those of the heart and kidneys but of the arms and legs and fingers, as well, are unconscious. Facial expressions provide a perfect example. If Austin’s theory were true, we would make facial expressions in order to belie certain emotions. In my experience, however, facial expressions are reactions; we must exert will in order to control them at all. If you do not exert your arm, it will not move, but if you ignore your face, it will continue to work: you’ll simply be an open book. I think all the parts of the body operate in this manner. The will selects merely the end; the body selects the means. I would like to hear Austin’s explanation of this scenario.
Austin also claims that the will is only a factor in physical actions: it is the nexus between mind and body. In this, he is totally at odds with James, who says the will is purely mental, because it is the tool we use to focus our minds on certain ideas and to ignore others. Again, I side with James. What would Austin say of meditation, the practice of emptying one’s mind of competing ideas and focusing on one, or zero, concepts? To me, this task requires more willpower than anything else, and no physical movements are required for it. James’s model, on the other hand, explains meditation perfectly.
The argument that most interests me in Hart’s “Ascription of Responsibility” is one he does not make directly: that reification is dangerous for law. He moves in this direction two times: (1) when he says the word “unless” is crucial to criminal cases because we more often decide intention by eliminating excuses than by applying a definition of responsibility; (2) when he rejects the claim all excuses can be grouped in one category (absence of intention) or two (absence of foresight and “voluntariness”). These two points remind me of Oliver Wendell Holmes’s observation that we developed the common law from the bottom up, through years of individual cases, rather than from the top down, through legal theories. Argument (2) suggests that some theories are ex post facto explanations of law which is already in the books, and thus they do not help us understand or predict any new cases.
Holmes’s and Hart’s suggestion that the law is crafted on a case-by-case basis reminds me of Plato, oddly enough. The Greek philosopher said that high concepts, such as justice and mercy, were Forms. We may not understand them or be able to explain them, but if we train our minds and souls, our intuition can approach them. Twenty-four hundred years have passed since Plato’s death, and still we do not have satisfactory definitions of Justice, Responsibility, or Will: instead, our theorists begin almost every work with redefinitions of them. If our theorists cannot define them, what about our judges and juries? Each case, most likely, they are working to provide a verdict which satisfies their intuitive senses of Justice. So law is not as regimented as our rationalists would like, but it does follow principles – principles which proceed from the heart as much as the mind.