Allan McCay is our latest Routledge Featured Author. Read our interview to discover more about his recent book with Michael Sevel, Free Will and the Law: New Perspectives.
Allan McCay teaches at the University of Sydney Foundation Program, and the University of Sydney Law School (again lecturing in Criminal Law in Semester 2, 2019). He is a member of the Management Committee of the Julius Stone Institute of Jurisprudence, and at Macquarie University he is an Affiliate Member of the Centre for Agency, Values, and Ethics.
Allan trained as a solicitor in Scotland, and has practiced in Hong Kong with the global law firm Baker McKenzie. He holds a PhD from the University of Sydney Law School and is interested in behavioural genetics, neuroscience, neurotechnology, and the criminal law. His philosophical interests relate to free will, philosophy of punishment, and ethical issues emerging from artificial intelligence.
His work has been published in the journals Neuroethics, The Journal of Evolution and Technology, Current Issues in Criminal Justice, The International Journal of Law and Psychiatry, and The Indigenous Law Bulletin and in the edited collection Free will in criminal law and procedure.
This volume brings together many of the world’s leading theorists of free will and philosophers of law to critically discuss the ground-breaking contribution of David Hodgson’s libertarianism and its application to philosophy of law.
The book begins with a comprehensive introduction, providing an overview of the intersection of theories of free will and philosophy of law over the last fifty years. The eleven chapters collected together divide into two groups: the first five address libertarianism within the free will debate, with particular attention to Hodgson’s theory, and in Part II, six contributors discuss Hodgson’s libertarianism in relation to issues not often pursued by free will scholars, such as mitigation of punishment, the responsibility of judges, the nature of judicial reasoning and the criminal law process more generally. Thus the volume’s importance lies not only in examining Hodgson’s distinctive libertarian theory from within the free will literature, but also in considering new directions for research in applying that theory to enduring questions about legal responsibility and punishment.
What inspired to you to write this book?
The immediate catalyst for this project was my interest in the late David Hodgson’s last book Rationality + Consciousness = Free Will, an interest that was shared by my co-editor Michael Sevel. We wanted to assemble a group of philosophers to critically respond to this work, and as sections of that book addressed the free will problem in the context of the law, we felt we could fruitfully use it as a springboard to both engage with the free will problem and to consider its significance in a legal context in an edited collection of our own.
The story of my own motivation is a longer one. I have long been interested in free will, and about 15 years before the publication of Free Will and the Law: New Perspectives, one of the contributors to our book, Chris Birch, a Sydney barrister and legal philosopher, introduced me to the work of David Hodgson. David Hodgson was a remarkable man - both a Judge of Appeal in the New South Wales Supreme Court and a philosopher of some note. He was a former doctoral student of perhaps the most influential legal philosopher of the 20th century, HLA Hart, and published in the areas of ethics, consciousness and free will.
My own research addressed the free will problem in the context of the justification of punishment, and as it turned out, David Hodgson lived in my city (Sydney), so I contacted him. I started to meet with him from time to time to chat about free will and the law, and he helped me with my research, and gave talks at various events that I organised through the Julius Stone Institute of Jurisprudence at the Sydney Law School. Over time I became increasingly interested David’s own work on free will and read and commented on the manuscript of his abovementioned final book, which was published shortly before his untimely death in 2012.
Shortly after the publication of David’s last book, the American legal philosopher Michael Sevel joined the Sydney Law School. He and I discussed the possibility of co-editing Free Will and the Law: New Perspectives and we decided that it would be great thing to do. I was particularly keen to work with Michael as he has a great deal of knowledge about debates in mainstream legal philosophy which I felt would complement my own knowledge of the contemporary free will debate in the context of justification legal punishment.
Michael and I were of the view that a volume of the type we envisaged could both usefully engage with the free will problem, and expand the discussion of free will in a legal context. We also felt that David’s own position in the free will debate - the libertarian view (in which agents make undetermined choices that they control) - had not received sufficient attention from legal theorists and that we could somewhat address this deficit in the literature with our contribution.
What audience did you have in mind whilst writing you book?
Michael and I were aware that our challenge in the project was to create a work that would span different fields of study and bring them together.
One the one hand, we wanted to engage with the traditional free will problem and so to consider what kind of free will might be needed for moral responsibility, and practices involving blame and punishment. This aim falls squarely in the area of interest of many philosophers who are working on free will, in philosophy departments. Whilst such work not infrequently says something about the implications of a particular position in the debate for the law, the law is not normally the main focus of enquiry. For those with an interest in such philosophical questions, we wanted to put together a set of responses that would further contribute to the discourse and perhaps introduce them to some angles to the free will debate that are generated in the specific context of the law.
On the other hand, we wanted to engage with lawyers, legal philosophers and others with an interest in law, and to draw attention to various perspectives on the significance and implications of the free will debate for the law. Many have considered the role of free will in the justification of punishment and sentencing, and we wanted to address this issue, but also to expand the free will debate as it relates to the law. So, for example in our volume some responses consider the role of free will in the criminal process more generally, or consider questions relating to the role of free will in judicial reasoning. Whilst it has been common to ask whether offenders need free will to deserve punishment, it has been less common to ask whether judges need free will to in order to judge competently.
We were mindful that some of our audience may be coming to the topic of free will and the law for the first time and one thing that was in the forefront of our minds when writing the introduction to the book was to write something that was accessible for a person who was new to the debates, and either or both knew very little about the free will problem, or very little about the law. We wanted to map out and synthesise the literatures in accessible way that, as well as mapping out the intersection of two areas of study for an experienced scholar, might also be a useful reading in an undergraduate or postgraduate unit of study whether in law, philosophy, criminology or some other discipline.
But of course, the core of the book is the set of chapters from our contributors and we are delighted to have contributions from such a great group of theorists. As well as chapters from eminent scholars working in Australia, our book includes contributions from the UK, Canada and USA. One of our contributors (Chris Birch) has even appeared before David Hodgson in his capacity as a judge and regularly refers to his judicial decisions when making legal arguments.
What first attracted you to debates about free will and their legal significance as an area of study?
As a child, I seem to remember having an interest in the impact of luck on our abilities and choices, and I can certainly remember reflecting on whether blame was or was not an appropriate response to some of my own conduct. Although it was long time ago, I think my nascent interest in questions not too distant from those generated in debates about free will and the law may have been further piqued at high school by books such as Aldous Huxley’s Brave New World, and it certainly was by my study of criminology as an undergraduate law student.
If one looked at the causes of criminal behaviour, there seemed to be a whole range of factors outside people’s control that raised the risk of offending. I studied criminology in the late 80s and most of the emphasis was on social factors that appeared to influence criminal behaviour, but they all just seemed to be a matter of luck as far as the agent was concerned. A couple of the readings touched on the free will problem and these readings contributed to my interest in free will and the criminal law.
When I came to do my PhD, the biological causes of criminal behaviour had come back into scholarly discussion, and my thesis engaged with some free will literature in the context of a biosocial approach to crime, in which the interaction between genes and social environments was considered to be important in the explanation of such behaviour. My PhD considered sentencing’s retributive aim in light of this biosocial approach.
One thing that my doctoral research emphasised to me was the way that the cumulative effect of influences beyond an agent’s control seems to impact upon their life trajectory, thereby raising concerns about whether those whose trajectory takes them outside what is permitted by the criminal law should be held responsible and blamed for their conduct and, if they were to be so held, how much blame and punishment was deserved. It was my interest in the free will problem and the calibration of blame that provided the motivation for my choice of thesis topic, the decision to work on many of my journal articles, and to work with Michael to put together Free Will and the Law: New Perspectives.
My own contribution to the book addresses some of my concerns about blame. I argue that even if we knew that people can deserve blame and, perhaps sometimes retributive punishment for their wrongs, we are poor judges of how much blame and/or punishment is deserved. The poor quality of our judgments in this respect results from how little we generally know of the life of the person we judge, and the cognitive difficulty for us in deciding how much blame and punishment is warranted based on what we do know.
If my analysis is correct there are implications for criminal law (and perhaps other legal practices as well as other social practices).In a nutshell assessing the degree of blameworthiness, and the amount of punishment deserved for a crime (or other wrong) is a difficult and complex task, and it’s not clear that judges in sentencing matters, or any other human, is up to the challenge. When judges (and the rest of us) blame and punish, we may well get the amount very badly wrong. For fair-minded people this should be a cause for concern, and for the courts this raises a question over the moral justification for the retributive element in sentencing.
I enjoyed developing these ideas and have benefitted greatly from considering the other contributions to our new book, and working with Michael. I remain interested in these perplexing issues.