Free Will and the Law: New Perspectives

Book Launch
Allan McCay and Michael Sevel (eds)

Chief Justice Allsop AO 21 August 2019

It is an honour to have been asked to speak at the launch of this work devoted to the ideas of the late David Hodgson.

I will say some things about the book and the collection of scholarly and exciting papers in it, in a few moments. Let me commence however (as I will conclude) by saying something of David Hodgson.

First, the tragic cutting short of a life well, happily and dutifully lived denied Raewyn and family of the joy of his presence. But the loss to ideas and the legal and philosophical communities of another two decades of his intense thought should also be recognised.

He was a remarkable person. Though his two lives, legal and philosophical, may seem to have been two streams of thought, they were remarkably intertwined – both in content and method.

The polite fierceness of David’s engagement with ideas and views of colleagues cannot be forgotten by me. Not for him letting you make your mistakes on your own without correction; you had to fight for the intellectual ground that you both stood on. One sees this in his tightly engaged thinking in philosophy. It is an attribute honoured by the papers in this book.

But he was by no means detached; there was no abstract reductionism. He was a human engaging with the whole – the abstracted particularisation of logical debate and the intuitive whole with its description, articulation and uncertainty. This produced the ‘plausible reasoning’ of the articulation in place of the full certainty of definition and logical deduction. The engaged, disciplined humanity was also given texture by his kindness; it was more than mere decency and the always giving of dignity to others, it was gentleness of the soul and true kindness.

I said this in 2012 about why junior barristers (such as myself in the early 1980s) so loved him:

[A]ppearing before David Hodgson was one of life’s pleasures of legal practice. He was polite, kind and interested in, and respectful of, one’s submissions. Even if one had missed the point he would suggest a reframing of the proposition. A debate would then often ensue about the proposition’s validity. Sometimes, the debate appeared to be carried on by him with himself. When the correct principle was exposed and refined, it was invariably attributed to counsel. He was also practical, efficient and polite. The Bar, especially the junior Bar, loved him, not just because of the way he treated them, but also because he treated their clients with the same respect and courtesy while attending to their problems with evident diligence and skill. His court epitomised what courts should be like.

These are not just casual reminiscences of a dearly remembered judge, colleague and friend; they are expressions of the proper method of the law. It is the place of the practical application of philosophy to people on a daily basis.

The judicial task is not merely an intellectual endeavour. For its complete undertaking it requires a grasp of conscious ideas, their deployment and reduction, patience, insight (drawn from the whole brain) into the human condition, and a human appreciation of law in society. All this in the daily press of sometimes selfish and sometimes unpleasant, even, violent conflict.

The theory of ideas of free will, of the human condition, of the place of the individual in the thicket of life’s forces, permits, as Oliver Wendell Holmes once said, a connection to the universe and the catching of an echo of the infinite in its unfathomable process.[1]

David Hodgson recognised that philosophy and law have an entangled importance. They have a beauty – the one from abstraction and its mystique and lightness of being, the other from the practical press, often confused state, of humanity.

William James once said about the former:[2]

…beautiful is the flight of conceptual reason through the upper air of truth. No wonder philosophers are dazzled by it still, and no wonder why they look with such disdain at the low earth of feeling from which the goddess launched herself aloft. But woe to her if she return not home to its acquaintance…every crazy wind will take her, and, like a fire-balloon at night, she will go out among the stars.

David Hodgson’s ideas in law and philosophy are always returned to the low earth of feeling – to the human and to the whole, with its experience, and whole contextualised imprecision of life, not relying solely on (but being a master of) analytical, abstracted methods of thought.

David Hodgson was also clear. His judgments were a model of unpretentious clarity. His intellect was displayed not by showy citation or masterly erudition (though it was there) but by straightforward, well-reasoned and well-expressed solution that was so rarely wrong. A skilled eye could see brilliance at work in simplicity and clarity of astonishingly rapid reduction and resolution of problems. He worked so quickly, so clearly, and so unerringly accurately.

Let me say something of the wonderful contributions in this book. I am not equipped to do justice to the thought, scholarship and insight each provides. For a practising judge they all provide insight into concepts that form the silent foundation of our working lives and thoughts: free will, causation, moral responsibility, and society’s relationship with the individual in the flow of the patterns and forces of life. The introduction to the subject and the papers by Allan McCay and Michael Sevel helpfully conceptualises the concepts of compatibilism and incompatibilism that place the libertarian views of David Hodgson in context. They remind us of the development of the theory of ‘plausible reasoning’ in The Mind Matters,[3] David’s second major work. One can see in the discussion, and also in Neil Levy’s ‘Occam’s shopper’, the important place (for neuroscience and thought processes) of the relationship between the left and right hemispheres of the brain  and how they function: the precise computational processes of the left and the experiential unique wholeness of the right in a unified totality.

These ideas are drawn out and discussed imaginatively and insightfully by later contributors. Michael Sevel in ‘How judges are free to decide cases’ reveals how David Hodgson recognised the need for reflection over snap decisions, that careful conscious reflection allowed the whole brain to conceptualise and articulate (not define) an answer. The papers by RA Duff on ‘Responsible agency in the criminal process’ and by Michael Corrado on ‘Hodgson on retribution’ illustrate with clarity Hodgson’s approach to sentencing and the importance of plausible reasoning to the exercise of power in the sentencing process. Hodgson’s ‘robust’ responsibility and the communicative enterprise of the trial and sentencing process wonderfully discussed by RA Duff revealed the human experience and engagement of the process.

Christopher Birch illustrates the theory of plausible reasoning by an insightful discussion of the sentencing decision of David Hodgson in Mumberson.[4] That decision and Christopher Birch’s discussion reflect how the High Court has approached sentencing – the articulation of reasons in the context of the inevitable incompleteness of any attempt of words to paint a picture of the whole. One cannot reason out in logic or even fully describe, except by conclusions evoked from human feeling, why a sentence is manifestly inadequate or manifestly harsh. It is through the conscious reflection and the openness to society’s response through one’s own feelings that the judge, the court as an institution with its experience and knowledge, expresses its response as a manifestation of just state power to the inherently human, infinitely varied, often tragic, and sometimes violent situations before it.

These are Hodgson’s ‘Judge’s apposite responses to feature-rich gestalts of conscious experiences’ discussed so clearly by Laura Ekstrom and Robert Kane and expressed in the articulation, not logic, as she, Chris Birch and others discuss.

Let me illustrate the importance to the law of Hodgson’s notion of plausible reasoning by mentioning another judgment of many years ago. In Geddes,[5] Sir Frederick Jordan – in the gritty, blunt expression of the depression years – evoked in the mind of the reader and the listener the human circumstance and tragedy of Mr Geddes’ crime: the drunken beating to death of his physically more powerful rival after the taunts of his estranged partner; an intended ‘thrashing’ that ended a life. It is from the articulation of the reality that the justice of the response made so long ago is still felt. It contained rule but it is not all abstracted rule. It reflects the importance of articulation of the synthesis of the human whole in language that is direct from life, but which language is likely ultimately inadequate to express everything, because it is an implicit response of feeling to the circumstance of life and the human condition. It is the feeling from which, at least in part, the law springs.

From this one sees the working in daily life of the ‘judge’s apposite response to feature-rich gestalts of conscious experience’, spoken of by David Hodgson.

The paper on ‘Why capacity matters’ by Nicole Vincent illuminates David Hodgson’s abiding concern with fairness and what lies at its foundation: capacity and responsibility that is not rule-based.

The challenging but rewarding papers of Bernard Berofsky on ‘The luck argument against libertarianism’ and Ishtiyaque Haji’s ‘Frankfurt-style examples, impermissibility, and reasons-responsiveness’ remind one of the care that should be taken by judges with moral judgments of others in the judge’s passage through the occurrence of causation, moral responsibility, deterministic factors, and luck.

May I conclude by saying something more of David Hodgson and his importance to generations of lawyers who had the good fortune in New South Wales to know him. How he treated people, ideas, and problems before him reflected, through his personality and approach, a certain beauty of the law. The following expresses my view of what he brought me and what he brought to the law. The beauty of the law does not come from grand expressions of imposing ideas. Rather it is in the daily application of life that the dignity of the individual, the mercy of the soul, and fairness as part of the human condition inform the exercise of lawful power. In life’s small, selfish and mundane intersections these values assume a daily modesty in expression and in context. But that modesty in expression and context reaches back to something more important, something infinite. Thus the beauty comes from modest application to humans, to conflicts in resolution, in the pages of the lives of people, in fairness required, indignity expressed and accepted, and in mercy given. All this shone from David Hodgson’s daily work and can be seen in how he thought deeply about humans, free will, their conscious experiences, their responsibility and how he explained these things by an emphasis on the mind, plausible reasoning, and responsibility. This book advances the general knowledge of David Hodgson’s work, these aspects of it, and his legacy in a way and a style of which he would be proud.  

[1] Oliver Wendell Holmes, Jr., ‘The Path of the Law’ (1897) 10 Harvard Law Review 457.

[2] William James, ‘On The Function of Cognition’ (1885) 10(37) Mind 27.

[3] David Hodgson, The Mind Matters (Clarendon Press, 1993).

[4] R v Mumberson [2011] NSWCCA 54.

[5] R v Geddes [1936] SR (NSW) 35.