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Publication Title

Washington University Jurisprudence Review

Abstract

In analytical jurisprudence, determinism has long been seen as a threat to free will, and free will has been considered necessary for criminal responsibility. Accordingly, Oliver Wendell Holmes held that if an offender were hereditarily or environmentally determined to offend, then her free will would be reduced, and her responsibility for criminal acts would be correspondingly diminished. In this respect, Holmes followed his father, Dr. Holmes, a physician and man of letters. Similar theories, such as neuropsychological theories of determinism, continue to influence views on criminal responsibility, although such theories do not imply that it is physically impossible for accused persons to act other than they do. This suggests that some amount of free will is compatible with theories of this kind. Nevertheless, the common understanding that accused persons can be free and responsible agents might disappear altogether if people were to accept the truth of causal determinism, which is the philosophical thesis that there is only one physically possible future consistent with the past and the laws of nature. Causal determinism touches the criminal law, because it implies that it is physically impossible for an offender not to offend in the precise way and at the precise time that she does.

Scholars who conclude that free will is incompatible with causal determinism are called “incompatabilists.”There are, of course, two sides to every scholarly coin. On the other side of this coin are scholars who think that free will is compatible with causal determinism. These scholars are called “compatibilists.” The purpose of this Article is to argue that incompatibilism is plausible, and, as a consequence, scholars should adopt a view of criminal responsibility and punishment that is consistent with the skepticism that this conclusion should generate. This purpose is motivated by Hart, who defends compatibilism on the basis that incompatibilism is “incautious.”

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