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.
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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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