Moralized Theories of Coercion: A Critical Analysis

Part I of this Article briefly lays out the taxonomy of various theories of coercion and then describes Wertheimer's theory. Part II of the piece analyzes and critiques moralized accounts generally, with particular emphasis upon Wertheimer's version of the moralized theory. Finally, Part ll sketches the departure point for an alternative to both moralized theories and the more traditional accounts which explain coercion as a function of the overborne will

A Third Theory of Liberty: The Evolution of Our Conception of Freedom in American Constitutional Thought

With the publication of Isaiah Berlin\u27s essay, Two Concepts of Liberty, liberals and their adversaries came to view their respective positions as expressions of a deeper philosophical gulf between two opposed ideas of freedom - what Kant first dubbed the negative and positive ideas of liberty. Negative liberty, or freedom from, represented the classical liberal conception of freedom, while positive liberty or freedom to is vouchsafed by civic republicans, progressive liberals, socialists and others. Negative liberty was associated with the absence of constraint and, more specifically, with individual rights and limits upon government power while positive liberty was usually interpreted as collective self-government. This Article argues that the distinctly American conception of liberty transcends the negative-positive dichotomy and seeks to demonstrate that the American ideal of liberty is distinctive for its commitment to individual self-determination. The piece argues that individual self-determination can only take place in the context of a social structure that protects the values of diversity, association and statement and seeks to show how the Madisonian, progressive liberal and communitarian conceptions of society represent varying responses to changing conditions in the service of a single concept of liberty as selfdetermination within a balanced society

Mill, Freud, and Skinner: The Concept of the Self and the Moral Psychology of Liberty

This Article will explore and compare the philosophical psychologies of John Stuart Mill, Sigmund Freud, and B.F. Skinner, and will survey the socio-political implications of their respective views of human nature. The Article will seek to demonstrate generally that we cannot arrive at a unified vision of the most suitable social and political order without answering fundamental questions concerning what may variously be called human nature, human psychology, or the nature of the self. More specifically, this Article will contend that liberalism is contingent upon the traditional view of the person as free, rational, characterized by a functional psychological unity with an authentic core personality which exists independent of, and perhaps prior to, social influences. It will argue that psychoanalytic thought and behaviorism, the first two of three waves of modem psychology, both reject this view of the self." Thus, to the extent that modem psychology rejects the view of the self as free, rational, unified, and authentic or original to the person, it undermines the moral-psychological case for liberalism, including the idea of the zone of personal liberty. Put simply, the case for political liberalism re- quires our adherence to this traditional view of the self

Law and the Concept of the Core Self: Toward a Reconciliation of Naturalism and Humanism

This piece examines perhaps the most important concept in moral and legal thought-the idea of the person, or the self. Since at least the time of Descartes, the modern worldview has been poised between the two seemingly compelling yet mutually exclusive paradigms of traditional humanism and scientific naturalism. The traditional humanist paradigm, as I use the term,4 views persons as free and responsible for their actions and ultimately for who they are and what they become as persons. As such, the self stands apart from the world in the most significant way, morally and metaphysically, originating acts spontaneously, freely, and independently of the external world. Scientific naturalism, on the other hand, holds that each individual is fundamentally part and parcel of the natural world, the product of material states and processes working themselves out in mechanistic fashion. On such a view, human action is the predetermined product of a chain of causes extending backwards in time indefinitely and again forward in time perpetually. On this account, the concept of the autonomous self is dismissed as the central fiction of a prescientific folk psychology. Our modem view of the person is characterized by a tenuous modus vivendi between the insights of traditional humanism and those of scientific naturalism. We need the traditional concept of the core self; it is the bedrock upon which our entire moral and legal system is based, yet we do not really believe that there is such a thing. It is a phantasm, a chimera, at best a reification. It works, but it does not exist. This puts the modem defender of our moral and political order in something of a difficult position. Part II of this Article considers three important functions played by the concept of the core self in modem legal thought: (1) the self as the predicate for attributing moral and legal responsibility, (2) the self as the subject of rights, and (3) the self as noncommodifiable human essence. Part III surveys the philosophical history of the core self, including an overview of what we may presume are the necessary constituent elements of personhood-free will, rationality, functional unity, and essential uniqueness. Part IV examines the attack on the core self from the standpoint of deterministic metaphysics, empiricist epistemology, the mind/body problem, and recent psychological thought. Here the Article argues that each of these four modes of attack issue from a kind of reductionism each of which is bom of an unnecessary dualism-i.e., between mind and body, world and self or substance and property. A new ontology is needed to transcend these dichotomies. Part V seeks to construct such an ontology, a "new naturalism," based on the idea of emergent evolutionism. Part V(A) elaborates a solution to the mind/body problem that reconciles the modern naturalis- tic worldview with the traditional conception of the person. Part V(B) examines the problem posed by determinism, offering a conception of human freedom based upon the idea of self-determination that is consistent with deterministic assumptions. Part V(C) then investigates the problem of authenticity, the notion, vitally important to certain strands of modem liberal thought, that there exists a presocial self. Part VI discusses the implications of this view of the self to the issues central to legal thought addressed in Part II. Part VI(A) sketches general answers to the problem of human identity and to questions concerning the constitutive aspect of the self. In this section, I elaborate upon the idea of self-creation through the process of "internalization." The issue of commodification as the central jurisprudential problem connected to the issue of self-identity will be addressed. Part VI(B) examines the relationship between self-identity and freedom of will by examining the problems posed by such excuses as duress, brain-washing, and social conditioning, among others. I distinguish volition, freedom, and autonomy, and put forth a developmental theory of autonomy. Finally, Part VI(C) concludes with comments about the relationship between the developmental conception of the self and the rights of privacy and equality. This Article aims to develop a rapprochement between the humanis- tic and naturalistic paradigms. The piece attempts to demonstrate that determinism does not preclude a robust sense of personal freedom, and that "physicalism," in an expanded sense of the term, does not exclude the realm of the mental, and suggests that modern psychology has much to contribute to our traditional concepts of authenticity, autonomy and personal identity. This expanded understanding of the self will then serve as a basis for moral and legal judgments concerning questions of moral and legal responsibility, for our conception of rights, and for issues of personal identity central to recent jurisprudential debate

A Utilitarian Theory of Duress

The purpose of this Article is to defend a utilitarian account of duress against the two prevailing conceptions of duress: traditional or Aristotelian accounts, and so-called moralized or contextualized theories. In Part I, this Article begins by putting forth a 'theory of theories,' and elaborates a num- ber of theoretical criteria from the philosophy of science which have been adapted and modified for evaluating the adequacy of competing jurispru- dential theories. This will permit the comparison of diverse theoretical models with the object of determining which model best explains and justifies the defense of duress. The remainder of the Article will employ these criteria in discussing the Aristotelian, moralized, and utilitarian theories of duress. Part II surveys and critiques the traditional, Aristotelian theory of du- ress. The traditional theory, which greatly influenced common law judges and remains the pre-eminent conceptual explanation for duress in modern case law, holds that duress is to be understood as an excuse accorded in virtue of the involuntariness of the act. All theories that characterize co- erced behavior as essentially unfree, or as the product of an "overborne will," 5 partake of this model. This Article argues that coerced acts cannot be distinguished from other acts on the basis of voluntariness or freedom. In- deed, acts performed under conditions of duress are entirely voluntary, as the term "voluntary" is employed in other areas of the law. Moreover, at- tempts to conceptualize coerced acts as emanating from an overborne will presuppose a philosophical model of human motivation that has been seri- ously in question from the time of the late eighteenth century. In sum, co- erced choices and acts cannot be distinguished from a variety of other situations involving constrained choice where no defense is available. For this reason, this Article argues that the traditional model must be rejected because it fails to justify the defense of duress. In Part III, this Article considers so-called 'moralized' theories of du- ress, which have become increasingly popular among academic writers in recent years. In particular, it considers the partially and radically moralized theories of Joshua Dressler and Alan Wertheimer, respectively. Moralized accounts attempt to argue in various ways that coercion is not a function of the lack of freedom of the subject, or even the psychological pressure under which putative victims of coercion act.6 In this respect, defenders of moral- ized accounts are also doubtful of the traditional model of coercion. They argue instead that notions of duress and coercion simply represent a kind of linguistic placeholder for more contextualized normative judgments that serve to exculpate or justify certain acts under certain situations. On this view, the concept of coercion is a kind of value judgment masquerading as a factual assessment of the moral-psychological state of the actor, i.e., whether the actor was free or acted voluntarily. This Article argues that, in addition to a number of internal difficulties, moralized theories are hope- lessly vague and possess little or no prescriptive value. They are high level abstractions which neither explain why coercive situations are viewed as exculpatory conditions nor guide judges, lawyers, or others in determining when a situation is coercive. In Part IV, this Article explores the utilitarian model of duress. It be- gins by discussing the utilitarian theory of punishment and the corre- sponding rationale for exculpating certain acts. Next, it argues that duress is best understood as a kind of excuse, rather than a justification. This Arti- cle then endeavors to demonstrate that duress should be conceptualized not in terms of involuntariness, but as a function of the undeterrability of coerced acts. Here, this Article examines a number of issues in the law of duress that remain contested to which utilitarian theory can provide a solu- tion. In general, it concludes that the utilitarian approach to the problem of duress will be more intellectually satisfying and more practically workable than the preceding two alternatives. In Part V, this Article explores some objections to the utilitarian theory of duress. These will include objections that the utilitarian theory cannot generate conclusions with the degree of quantitative accuracy that it im- plies, that utilitarianism leaves out the retributive dimensions of criminal punishment and that a utilitarian approach may require punishment where punishment is not morally justified. Part V also evaluates the application of utilitarian theory to duress specifically. Finally, in Part VI, this Article will conclude with a brief discussion of the utilitarian approach to duress from the standpoint of the five criteria for theoretical adequacy outlined in Part I

What Does it Mean to be a Parent: The Claims of Biology as the Basis for Parental Rights

Modern technology has wreaked havoc on conventional and legal notions of parenthood For example, the traditional legal presumption granting parental rights to a child's biological mother seems at least questionable when the biological mother dif- fers from the intended mother. As a resul courts employing traditional constitutional and family law doctrines have not adequately sorted out the claims of biological, gesta- tional, and intended parents In this Article Professor Hill argues that the claims of those who first intend to have a child should prevail over those who assert parental rights on the basis of a biological or gestational relation. Such a view, he argues, is consistent with existing case law on the constitutional rights to procreation and privacy and supported by moral theory and modern scientific evidenc