Free Will as a Matter of Law

Philosophical Foundations of Law and Neuroscience, (Michael Pardo & Dennis Patterson eds., 2016), Oxford University Press

24 Pages Posted: 16 Sep 2015 Last revised: 11 Apr 2017

Date Written: September 14, 2015


Philosophers have long debated questions about free will, but their analyses obviously do not have the force of law. Whatever you think about free will, the law has its own perspective. Since cases and statutes say little directly on point, we turn, as we often must, to the intentions of those with authority to create law. The law’s crafters likely believed that we have souls that make choices unconstrained by the laws of physics. Such “soul-based libertarianism” conflicts with the modern scientific view that billions of particles have interacted since the beginning of time to make us take the precise actions we do in the precise circumstances we find ourselves. Since the law’s crafters aimed to punish evil-doing souls, they may never have intended to punish mechanisms like ourselves.

Scholars such as Stephen Morse and Paul Litton, by contrast, have defended compatibilist interpretations of criminal law. They believe both moral and legal responsibility are consistent with mechanistic decision-making. But their interpretations of the law are largely grounded in controversial philosophical claims and should be distinguished from interpretations grounded in legal authority. Unless compatibilists can settle the philosophical debate to widespread satisfaction — an unlikely prospect given its centuries-long history — the law’s admittedly faint libertarian signals hold special weight.

I argue that, from a legal perspective, the view that the criminal law was never intended to apply to mechanistic humans like ourselves is more plausible than the view that the law was intended to punish in a compatibilist fashion. Hence, if we focus on traditionally-recognized sources of legal authority, a plausible case can be made that our punishment policies are inconsistent with modern science and require updating.

Keywords: Free Will, Punishment, Compatibilism, Neuroscience, Stephen Morse, Paul Litton,

Suggested Citation

Kolber, Adam Jason, Free Will as a Matter of Law (September 14, 2015). Philosophical Foundations of Law and Neuroscience, (Michael Pardo & Dennis Patterson eds., 2016), Oxford University Press , Available at SSRN:

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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