Punishing Without Free Will

88 Pages Posted: 7 Apr 2011

See all articles by Luis E. Chiesa

Luis E. Chiesa

State University of New York at Buffalo Law School

Date Written: April 6, 2011

Abstract

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and philosophers reply that, even if it turns out that human conduct is fully determined by forces over which they lack control, we ought to nevertheless believe in free will and thus continue to blame actors for engaging in wrongful conduct. They argue that we ought to rationalize free will in this manner because dispensing with free will is potentially catastrophic to human relationships, calling into question our judgments about blame and praise and, thus, about criminal responsibility and punishment. This Article contends that this rationalization is wrong and unnecessary. The fact of free will is not essential to maintaining a healthy society and a well functioning system of criminal justice. Although retribution could not be invoked as a reason for imposing punishment if humans are not capable of free choice, punishment could still be justified on consequentialist grounds. In a world without free will, the purpose of punishment would shift from giving to the offender what he deserved to protecting society from dangerous individuals who are nevertheless not to blame for their transgressions. Interestingly, this would likely lead to a more economically efficient and humane system of criminal justice that relies less on incarceration and more on less intrusive but equally effective methods of social control.

Keywords: free will, criminal law, determinism, causal determinism, libertarianism, compatibilism, incompatibilism, hard determinism, quarantine, punishment, freedom and responsibility, voluntariness

Suggested Citation

Chiesa, Luis E., Punishing Without Free Will (April 6, 2011). Utah Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1804468 or http://dx.doi.org/10.2139/ssrn.1804468

Luis E. Chiesa (Contact Author)

State University of New York at Buffalo Law School ( email )

715 O'Brian Hall
Buffalo, NY 14260-1100
United States

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