Powerful Particulars: The Real Reason the Behavioral Sciences Threaten Criminal Responsibility

49 Pages Posted: 28 Apr 2017

See all articles by Anders Kaye

Anders Kaye

Thomas Jefferson School of Law

Date Written: 2010


The concept “criminal responsibility” plays an important role in Anglo-American criminal law. It is central to our excuse doctrines and provides a foundation for our punishment practices. Nevertheless, legal theorists and philosophers have sometimes argued that it is not appropriate to treat human wrongdoers as responsible actors. An important line of such challenges has been grounded in the behavioral sciences. Inspired by startling findings in psychology, sociology, criminology, neuropsychology, and other behavioral sciences, some theorists and philosophers have argued that these sciences show (or at least imply) that human acts are determined acts, that we therefore do not have free will, and that it is therefore wrong to hold us responsible for what we do.

While this behavioral science challenge could have radical implications for the criminal law, several influential criminal theorists have offered forceful arguments to rebut it. In doing so, they have drawn on the philosophical debates about free will, determinism, and moral responsibility. In particular, they have advocated the philosophical position known as compatibilism, according to which determinism does not destroy individual responsibility. If compatibilism is correct, they argue, then determinism is not antithetical to responsibility, and we therefore need not worry about the implications of determinism we find in the behavioral sciences.

In this Article, I suggest that this compatibilist argument is inadequate. In fact, it fails to engage the most potent features of the behavioral science challenge. The real power of the behavioral science challenge, I will argue, is not that it suggests that determinism is true; rather, it is that the behavioral sciences bring determinism to life.

This is an important difference. We almost always conceptualize determinism in a highly abstract way: “everything that happens is destined to happen,” we say. “Everything has a cause.” The behavioral sciences, however, encourage us to imagine determinism in a new way. They provide us with concrete, vivid, and particular details about the ways in which human acts are actually caused. Reflecting upon these details enables us to shift from an abstract conception of determinism to a particularistic conception of caused human action. This particularistic conception, I will show, engages our emotions in a much deeper way than its abstract counterpart and induces a more careful consideration of the ramifications of determinism for our lives and acts. This, in turn, shifts our moral intuitions about determinism and responsibility and makes us more likely to see the behavioral science threat as a real and potent one.

If this is right, the compatibilist argument fails to engage the most potent features of the behavioral science challenge to criminal responsibility. The compatibilist argument is tailored to defuse anxieties about determinism understood in the abstract; but the behavioral sciences give us a taste of determinism in particular detail, and this particularistic determinism poses a much more serious challenge to the conventional view of criminal responsibility. This does not mean that criminal responsibility cannot be salvaged; but it does show that defenders of criminal responsibility have not yet met the full force of the behavioral science challenge.

Keywords: responsibility, criminal responsibility, moral responsibility, compatibilism, originationism, determinism, free will, excuse, behavioral science, psychology, particularism, particularist accounts, particularistic determinism

Suggested Citation

Kaye, Anders, Powerful Particulars: The Real Reason the Behavioral Sciences Threaten Criminal Responsibility (2010). 37 Florida State University Law Review 538 (2010). Available at SSRN: https://ssrn.com/abstract=2959892

Anders Kaye (Contact Author)

Thomas Jefferson School of Law ( email )

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Suite 110
San Diego, CA 92101
United States
619-961-4259 (Phone)

HOME PAGE: http://www.tjsl.edu/directory/anders-kaye

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