The Situationist

The Secret Politics of the Compatibilist Criminal Law

Posted by Thomas Nadelhoffer on September 3, 2009

Expulsion from Eden

I recently stumbled upon a really provocative paper by Anders Kaye entitled, “The Secret Politics of the Compatibilist Criminal Law.” Given that one of the key issues addressed in  the paper is whether compatibilist theories of free will–which focus very heavily on dispositional traits and conscious mental states–can accommodate situational forces that are criminogenic (e.g., poverty and early childhood abuse).  According to Kaye, compatibilist theories of free will and responsibility have been used by contemporary legal retributivists such as Michael Moore and Stephen Morse to shield the criminal law from developments in behavioral science, criminology, etc. that might otherwise lead to a less punitive justice system as well as a more egalitarian society.  In short, Kaye suggests that compatibilism is not a “politically innocent” theory of free will.  Here is the abstract:

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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.

***

There is already a heated debate about Kaye’s novel line of reasoning over at The Garden of Forking Paths.  However, it would be nice to see an active comment thread here at The Situationist as well.  So, please take a look at the paper and then give us your thoughts!

For a sample of related Situationist posts, see “A Situationist View of Criminal Prosecutors,” “The Legal Brain,” “Clarence Darrow on the Situation of Crime and Criminals,” “Person X Situation X System Dynamics,” “Situation” Trumps “Disposition” – Part I & Part II,” and “The (Unconscious) Situation of our Consciousness – Part I, Part II, Part III, & Part IV.”

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3 Responses to “The Secret Politics of the Compatibilist Criminal Law”

  1. John said

    What a great article! My sense, as an aspiring situation-sensitive compatibilist is that it’s true that compatibilism does tend to be used in support of status quo bias. But it’s also true that there’s no conceptual requirement that it do so. A good compatibilism would recognize that free-will is something that we can have more or less of, that it is often a moral, cognitive, and conative achievement to grow the sphere of freedom for oneself or for others, and that despite ones best efforts, situational factors will always circumscribe, and may completely overwhelm individual responsibility for any given belief or behavior.

    Furthermore, I’d argue that improving compatibilism is our ONLY realistic path to a better situation-sensitive politics. The alternative of denying free-will undermines the justifications for political action. Why try to expand freedom if that’s not possible? How do you hold accountable those at the top (who often have relatively great control over the situations of themselves and others) if you lack the conceptual means to hold anyone accountable for anything?

  2. Zorka said

    I know mening of “get your life back on track”
    Zorka

  3. jorgipogi said

    I think he read the Communist Manifesto.

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