FREE WILL HUNTING: A RECONCEPTUALISATION OF VOLUNTARINESS, DURESS AND NECESSITY USING ARISTOTLE’S ETHICS

Abstract

Jurisprudential philosophers concerned with the question of legal responsibility will be familiar with the problematic category of cases where conduct which would otherwise attract liability is committed as a result of threats or dire circumstances. When these situations arise in the context of criminal law, the traditional approach has been to invoke the defences of duress and necessity. As it stands, however, the operation of these concepts seems to be fraught with an underlying difficulty; namely, that the core theoretical basis for duress and necessity overlaps with the principle of voluntariness by relying on common tests such as whether one’s free will is overborne. In chapter one, I outline this problem and its implications, arguing that attempts to circumvent the issue are unsuccessful because they are based on an arbitrary distinction between physical and moral involuntariness. The rest of the thesis is devoted to the claim that a tenable basis for reconceptualisation can be found in Aristotle’s Nicomachean Ethics and Eudemian Ethics. In chapter three, I examine Aristotle’s writings on these issues, overcoming difficulties with the texts to develop an Aristotelian theory of voluntary action. In chapter four, I apply these considerations to the current law, demonstrating how an Aristotelian approach better conforms with the underlying rationale for the voluntariness principle and leads to increased clarity for the law relating to duress and necessity.