Hart’s Choices

Abstract

The concept of choice plays an important role in H. L. A. Hart’s discussions of punishment and responsibility. Hart appeals to the notion when arguing for both of the following claims, among others. (1) A system of punishment is justified in part by the fact that it respects human freedom by applying punishment only to those who have freely chosen the conduct for which punishment is issued. (2) The traditional way of drawing the distinction between voluntary and involuntary bodily movements (namely, that the voluntary are chosen and the involuntary are not) fails because there is no reason to think that even our voluntary bodily movements are chosen.¹ So the concept of choice plays an important role both in Hart’s view of the fundamental justification of criminal law’s most notable and troubling feature — namely, that it regulates a system of punishment — and in his view of the appropriate way to construct particular rules of criminal law, such as the rule excluding criminal liability for involuntary behaviour.