Free Will and Justification of Punishment

If there is no libertarian free will ? that is if there is either no free will or if compatibilist free will is all the free will there is, can punishment be justified? The argument of free will versus determination is important when looking at the justification of punishment. It seems obvious to say that if something is not an individual's fault (responsibility), then they should not be blamed for it, and should not receive punishment.

If people do not have free will and therefore have no control over their actions, then they cannot be held responsible for any wrongdoings.

Having free will is having the power to make choices that are unconstrained by external circumstances or by an intervention such as fate or divine will. This is known as Libertarian free will. Determinism is the view that every event, action and decision is the inevitable consequence of past conditions, for instance, genetic and environmental influences, and the laws of nature.

Compatibilism is the theory that free will and determinism are compatible.

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According to Hume, free will is not the ability to have made another choice in a situation, but it is a hypothetical ability to have chosen differently if you had a different psychological disposition due to other beliefs or desires. Free acts are caused by our choices as determined by our beliefs, desires and our characters. Free will is taken to be a necessary condition of moral responsibility.

Compatibility is sometimes expressed in terms of compatibility between moral responsibility and determination.

For a person to potentially be morally responsible, they must be accountable for the moral right or wrong that they do. Only then can they be praised, blamed, rewarded or punished. The opposing view is Hard Incompatibilism ? that free will cannot be compatible with determination, and that there is no free will. In his book Living Without Freewill Derk Pereboom (2001) looks at hard incompatibilism and criminal behaviour.

He evaluates theories of punishment to find out whether they are consistent with hard incompatibilism. The dominant theories of punishment are retribution, deterrence and rehabilitation. The Retributivist position holds that the justification for the punishment of a wrongdoer is that he deserves something bad to happen, just because he has done wrong. Retributivism affirms the deterrence of future crimes, but as an unexpected benefit of punishment for past crimes, not its justification. (Hugh LaFollette, Ethics In Practice, p.463)

This theory fits with the four main principles of justification of punishment: Only the guiltly may be punished; people who have committed the same crime should get the same punishment; the punishment should be proportional to the crime; and people with good excuses should not be punished as severely as those who have no excuse, if at all. If hard incompatibilism were true, this theory would be undermined. Retributivism justifies punishment entirely on the grounds of desert (giving people what they deserve). If a person could not have acted otherwise then punishment is not justified ?

determination being the "excuse". The compatibilist says that it is not causation which is important when attributing responsibility to a person, but it is compulsion and constraint. You can feel an urge to do something regardless of the ability to actually do it, and you can choose not to do something regardless of the urge you feel to do it. The desire is deteremined by influencing factors ( for example, environmental, genetic factors), but it is up to the individual whether or not they go through with the action.

In cases where a wrongdoer is regarded as mentally ill, where their actions are determined by their condition, they are exempt from blame because the choice of whether to act or not is removed. If Compatibilism is true, then retributive punishment is only justified if it is certain that the individual committed the wrong doing deliberately, knowingly and with no valid excuse. The Moral Education Theory suggests that punishing wrongdoers is the way to morally improve them and to decrease the likelihood that they will do wrong again.

This theory is based on the punishment of children. Punishment or the threat of punishment might aid to educate a child through knowledge of consequences, seriousness and of morality. However, it is not clear that punishing adult criminals is likely to produce moral improvement. If criminals do not know that what they are doing is wrong then there seems to be a strong moral case not to punish them. A moral education theory of adult criminal punishment would have to claim that punishment is likely to help motivate criminals to improve morally.

However, if non-punitive methods of achieving moral education exist, (for example, painless rehabilitation programmes) then these should be prefered. (Pereboom, Hard Incompatibilism and Criminal Behaviour, p. 164. ) Deterence theories hold that the aim of punishment is to prevent the wrongdoer from doing wrong again and to deter other prospective criminals from committing other crimes. (Pereboom, Hard Incompatibilism and Criminal Behaviour, p. 166). At first it seems that deterrence theories are consistent with hard incompatibilism, Libertarianism or Compatibilism.

Jeremy Bentham's classic deterrence theory suggests that "the state's policy toward criminal behaviour should aim at maximising utility, and punishment should be administered if and only if it does so. " (Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1823) as cited in Pereboom, Hard Incompatibilism and Criminal Behaviour, p. 166) This theory would seem to justify punishing innocent people. If someone who commits terrible crimes is not caught, potential criminals may start to believe that they can get away with serious crimes too.

In this case it might maximize utility to frame and punish an innocent person. This would suggest that punishment is justified even if the individual is not guilty. Even if there is no free will, or if compatibilism is all the free will there is, this theory would encourage punishment regardless of fault or blame. Pereboom rounds off his writing with an exploration of a cognitive therapy programme designed to lower the tendency for wrongdoers to lapse into a previous pattern of behaviour.

Yochelson and Samenow's Cognitive Self-Change program (1988) aimed to help criminals to "develop a better understanding of the cognitions and emotions that led up to the offender's behaviour. " (Henning and Frueh, Cognitive-Behavioural Treatment of Incarcerated Offenders, p. 530. ) This theory is consistent with hard incompatibilism, the therapy itself becoming a determining influence on future actions. If there is no free will, or if compatibilism is all the free will there is, then it appears to be hard to find justification for punishment.

Even if there is no free will, or if compatibility is true, if a person poses a danger to society they should be detained or isolated, just as you would quarantine a carrier of a deadly communicable disease. (Ferdinand D. Schoeman, On Incapacitating the Dangerous, (1979) as cited in Pereboom, Hard Incompatibilism and Criminal Behaviour, p174). If detainment and restriction of freedom is viewed as punishment, then this sort of punishment is justified if it means that the rest of society is protected. Detention until the threat to society has ended would seem justified, but no further severe treatment is necessary or justified.

References

1. Derek Pereboom, 2001, "Hard Incompatibilism and Criminal Behaviour" from Living Without Freewill.
2. Hugh LaFollette, 1997, Ethics In Practice, second edition, Blackwell Publishing.
3. Jeremy Bentham, 1823, An Introduction to the Principles of Morals and Legislation, Oxford University Press Inc. New York. Henning and Frueh, Cognitive-Behavioural Treatment of Incarcerated Offenders.
4. Ferdinand D. Schoeman, 1979, On Incapacitating the Dangerous, American Philosophical Quarterly 16. http://personal. bgsu. edu/~roberth/compat2. html http://plato. stanford. edu/entries/compatibilism/