Law Quadrangle (formerly Law Quad Notes)


Ideas of free will and determinism vie with each other in the administration of justice.

This essay is adapted from the Epilogue of "Freedom and Criminal Responsiblity in the Age of Pound" which appeared in Michigan Law Review in June, 1995. The occasion for original publication was the inauguration of the John Philip Dawson Collegiate Professorship of Law to commemorate Professor Dawson's years at the University of Michigan Law School (1927-58). Reprinted and edited with permission from Michigan Law Review.

Author's Note: Although the Epilogue of "Freedom and Criminal Responsibility in the Age of Pound" speaks mainly from the perspective of the present, it carries forward some of the historical themes addressed earlier in the article. The "Age of Pound" in the title refers to the first three decades of this century, the period during which Roscoe Pound, perhaps the most prominent legal academic of the Progressive Era, produced his most important writings on criminal justice in America. The main section of "Freedom and Criminal Responsibility" traces Pound's attempt to come to terms with elements of the scientific positivism of his day, especially with his own acceptance of the critique of the concept of free will that the new sciences embodied. Pound remained optimistic that law and science would someday be brought together without sacrifice of the basic principles of either - save for the "irrational" free will requirement for criminal responsibility. Due process, firm but benevolent trial management by a sociologically-informed bench, and respect for the fundamental human spirit (including the consciousness of human freedom) would characterize future criminal justice; how to reach that advanced stage of civilization Pound left for his successors to work out.

Pound's optimism was not shared by all those who recognized the problems that the new sciences posed for the criminal law. The opening section of "Freedom and Criminal responsibility" examines several essays written at the tum of the century by a little-known New York City lawyer named Gino Speranza. Writing on the eve of the era that Pound came to dominate, Speranza launched a critique of the precedent-bound commonlaw generally and of the non-"scientific" criminal law inparticular. But his enthusiasm for scientific positivism waned as he came to consider more fully its implications for criminal responsibility. Jurisprudence, he argued, was founded on the concept of free will and, mythic though it might be, that concept answered to deep human aspirations which science could not - and should not - displace. Speranza looked forward to a "Great Pacificator" who would define the terms of rapprochement between law and science. He perhaps looked forward also to a principled rationalization of the inevitable bifurcation of criminal process - that is, the increasing distance between the trial, wherein the traditional presumption of free will governed the ascription of criminal responsibility, and the sentencing process, which was coming to bear the influence of the deterministic premises of Progressive Era penology. Unlike Pound, who never gave up the hope that the domains of law and science would one day be unified, rather than for ever remain parallel, Speranza conceded, in 1901, that ultimately law was not a science. It was, and must remain, "one of the humanities."

"Freedom and Criminal Responsibility" is both a study of Pound and a lengthy commentary on the vicissitudes of criminal justice in late nineteenth and early twentieth century America. It relates Pound's perspective to those of several legal academics and behavioral scientists of the mid-to-late 1920s and it suggests that Pound's intellectual odyssey foreshadows our own attempts to come to terms with the responsibility problem. It suggests also that the history of criminal justice can not be fully understood in isolation from the history of these struggles which daily plague our conscious and subconscious lives.