Towards a More Reasonable Approach to Free Will in Criminal Law
Stephen T. O'Hanlon
Rutgers, The State University of New Jersey - Rutgers University, Camden; Temple University
May 1, 2009
Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 2, 2009
This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy of punishment. Part V considers the the possibility of determining propensity from criminal activity based on assessing causal factors and their effects on certain people. In this context, the concept of dangerous individuals and possible justifications for preventative detention of such individuals in order to protect society is assessed. The concluding section suggests that the law should take a broader view of factors that could have determinant effects on agents' actions.
Number of Pages in PDF File: 27
Keywords: Criminal law, free will, determinism
Date posted: November 4, 2009
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