Rebecca E. Hollander-Blumoff has recently posted her excellent paper, “Crime, Punishment, and the Psychology of Self-Control” (Emory Law Journal, Vol. 61, No. 501, 2012) on SSRN. Here’s the abstract:
Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.
Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.
Related Situationist posts:
- The Situation of the Self
- The Situation of Self-Regulation
- The Situation of Willpower
- Friends on the Brain
- The Situation of Temptation
- David Vitter, Eliot Spitzer, John Edwards, Jon Ensign, and Now Mark Sanford: The Disposition Is Weaker than the Situation,
- Bargh and Baumeister and the Free Will Debate — Part I & Part II
- The Death of Free Will and the Rise of Cheating
- Interview of Eric Kandel
- Coalition of the Will-less
- Dan Dennett – “Free Will, Responsibility, and the Brain”
- Dan Dennett at Harvard Law on ‘Free Will, Responsibility, and the Brain’
- Interview with Professor Joshua Greene
- Daniel Dennett on the Situation of our Brain
- Dan Dennett on our Interior Situation
- The Death of Free Will and the Rise of Cheating
- Clarence Darrow on the Situation of Crime and Criminals
- Person X Situation X System Dynamics
- Situation” Trumps “Disposition” – Part I & Part II
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