Moral Judgment: Does the Abuse Excuse Threaten Our Legal System?

by James Q. Wilson

(New York: Basic Books, 1997, 134 pp., $15)

WEEP FOR common sense! It is, we know, rare. And often it's disappointed. James Wilson's new book, Moral Judgment: Does the Abuse Excuse Threaten Our Legal System?, at any rate, helps explain the disappointment. The trouble is, Wilson has common sense, but he doesn't know where it comes from. The result? He sets himself up—and us—for lots of grief.

It's not that Wilson isn't clear or balanced. Nor is his thesis suspect. He argues that our legal system is too tolerant of excuses. Juries, in turn, too often try to explainrather than judgea defendant's actions. In doing so, they are aided and abetted by “experts.”

So how does Wilson betray common sense? He's an acute observer of the legal scene but, alas, a poor philosopher. Consider the following indictments.

First, there's his embrace of positivism. Wilson wants to warn us about the claims made by social scientists. They can't know what they say they do. Why? Because “real knowledge, as opposed to mere opinion, consists of statements that have survived the efforts of many people to disprove them.” To support his claim, he cites Karl Popper's well-known “falsifiability test.”

But the Wilson-Popper test largely limits us to empirical knowledge—though the test itself is not empirical. As such, it's self-defeating. Common sense, of course, is happy to distinguish between knowledge and opinion. But common sense is disappointed when its friends offer bad advice on how to do so.

Second, there's Wilson's fishy account of freedom. He warns of bogus “syndromes” that absolve defendants of personal responsibility. Fair enough. But he also tells us that “all behavior is caused.” Slow down, professor. If what we do is caused, and science shows this, then how can we act freely? And don't we have to be free in order to be personally responsible?

Here's where Wilson gets fancy about freedom. On the one hand, how we think and act is as caused as, say, the jerk of a knee tapped by a hammer. Yet, we're told, how we think and act “is caused by the interaction of genetic endowment, social learning, and available incentives.” This kind of causality is compatible with being free—or free-enough to be morally responsible.

But Wilson's “compatibilism” won't work. If how we act is a function of genes and environment, and thereby caused, the game's up. “Cause” is far stronger than “influence.” Complex causation—internal as well as external, psychological as well as physiological—leaves me no more freedom than the hammer's tap leaves my knee. Yes, complex causation makes for a longer story. But the upshot is the same: human action is reduced to mere behavior. Common sense, of course, recognizes personal responsibility. But gutting our concept of freedom does us no service.

Indeed, it's an even more anemic view of the human person that's at the root of Wilson's troubles. We are, for him, scarcely more than temporal intersections of desire and environment. No wonder he stumbles in trying to account for the dignity of the person. The law, he insists, largely rests on the supposition that “all lives are of equal moral worth.” Ah, but why? Because each person is made in God's image? Because each has a rational soul? None of that! The law takes this view because “it restrains our natural desire to sympathize with people we like (who often turn out to be people like us) and to condemn those we don't like.” So it goes: Truth yields to pragmatism.

If Wilson counterfeits freedom and dignity, supposedly to benefit common sense, guess what's next? For him, it seems, the opinion of “most people” becomes the touch-stone of right and wrong. So, for example, “most people” want judicial reform, have complex views of justice, and object to stereotyping. Well, we needn't be curmudgeons to note that if “most people” had common sense, we wouldn't be in the legal muddles that so need a remedy. Wilson sees that Lady Justice supplies “the moral moorings” of the law, but he won't find her via a Gallup Poll. Common sense, of course, would honor justice, but the received opinion is a shabby substitute.

Despite the indictment just served, Wilson does make specific proposals worth discussing—however shaky their philosophical basis. He suggests that we:

3 Define first-degree murder as “the intentional killing of another person, save in self-defense, under duress, or as a result of the lawful actions of law enforcement officials";

3 Sharply limit psychiatric and social-science experts;

3 Hold drunks fully culpable for criminal acts;

3 Abbreviate the jury selection process, and;

3 Restrict appellate review of criminal courts.

Such steps, he argues, will help make it clear that a jury serves not to explain a defendant's action but to submit it to the judgment of law.

It's instructive that Wilson thinks the eclipse of religion among the elites contributes to the shift away from judging; to them a social science explanation seems more enlightened. Indeed, even many believers are rushing from judgment. Comedian Dave Barry likes to say “I'm not making this up.” Nor am I. At a recent parish liturgy, a prayer of the faithful asked “That those involved in the criminal justice system not judge the acts of others, we pray to the Lord.” However sincere, this prayer affronts Christian common sense. We are to hate, and thus judge, the sin—with sinners, ourselves among them, awaiting God's judgment.

Yet the plot thickens, as the Timothy McVeigh sentence shows. There is a struggle between Christian common sense and ordinary common sense. The judicial system calls for no greater penalty than capital punishment, and nowhere does it more closely review a defendant's excuses. Here we have a haunting test case, and here our witness to human dignity is paramount. Because of the dignity of the person, the Church teaches that capital punishment, unless it serves as a self-defense for society, is unjust. The Denver verdict, to ordinary common sense, is a scandal.

James Hanink is a professor of philosophy at Loyola Marymount University in Los Angeles.