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The Secret Politics of the Compatibilist Criminal Law

63 Pages Posted: 12 Apr 2007 Last revised: 5 Aug 2008

Anders Kaye

Thomas Jefferson School of Law

Abstract

Many criminal theorists say that we have a 'compatibilist' criminal law, by which they mean that in our criminal law a person can deserve punishment for her acts even if she does not have 'genuinely' free will. This conception of the criminal law harbors and is driven by a secret politics, one that resists social change and idealizes the existing social order. In this Article, I map this secret politics. In so doing, I call into question the descriptive accuracy of the compatibilist account of the criminal law, and set the stage for a franker discussion of criminal punishment - one that recognizes that the perpetual struggle to say just who 'deserves' punishment is driven as much by brute politics and the competition to allocate power and resources in society as by any independent moral logic.

Keywords: Compatibilism, Compatibilist Criminal Law, Originationism, Originationist Criminal Law, Responsibility, Criminal Responsibility, Moral Responsibility

JEL Classification: K14

Suggested Citation

Kaye, Anders, The Secret Politics of the Compatibilist Criminal Law. Kansas Law Review, Vol. 55, p. 365, 2007; TJSL Legal Studies Research Paper No. 979421. Available at SSRN: https://ssrn.com/abstract=979421

Anders Kaye (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4259 (Phone)

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

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