Judgements of blame are not always based on a rational and balanced assessment of free will, as the law presumes. We decide how much control or freedom a person possesses
based upon our automatic negative responses to harmful consequences. The psychologist Mark Alicke finds that “we simply don’t want to excuse people who do horrible things, regardless of how disordered their cognitive states may be.” In other words: when offenders do bad things, we are eager to look for evidence that supports blaming them and to downplay evidence that might excuse them by showing that they lacked free will.
Herbert Packer, in his The Limits of the Criminal Sanction, formulates this choice of the common law as follows: “The idea of free will in relation to conduct is not, in the legal system, a statement of fact, but rather a value preference having very little to do with the metaphysics of determinism or free will.... Very simply, the law treats man's conduct as autonomous
and willed, not because it is, but because it is desirable to proceed as if it were.”
Meir Dan-Cohen, in his Responsibility and the Boundaries of the Self, notes that: “The core of criminal law doctrine, centred around the concept of mens rea and the variety of criminal excuses, probably comes closer than any other set of social practices to an instantiation of
the Kantian conception of the responsible human subject as the noumenal self, characterised exclusively by a rational free will, unencumbered by character, temperament, and circumstance.”
The free-will assumption is convenient for the easy administration of justice. It allows criminal jurisprudence to focus on the responsibility of a centralised self. Not only does this allow courts to avoid the task of determining the true roots of human behaviours, but it also justifies
attributing blame to individuals.
The concept of blame allows society to rationalise its infliction of punishment in the form of mental and physical pain on offenders. Such punishment can only be justified when the individual truly deserves it. Society would consider it wrong to inflict pain and suffering on the blameless. By assuming that offenders possess free will, the necessary level of culpability and blameworthiness is met. However, causing mental and physical pain to offenders is obviously traumatising them, setting them up to re-offend, not to mention the barbarity and stupidity of these actions.
Comments