Free Will and Justification of Punishment

Free Will and Justification of Punishment.

If there is no libertarian free will Ð'- 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. 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 Ð'- 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 Ð'- 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