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Thursday, 10 March 2011
If you live a blameless life, and then develop a brain tumour that turns you to violence, the law may need to restrain you, but it has no business punishing you. This is a general legal principle that extends to pleas of insanity, diminished responsibility and so on.
In the - seemingly eternal - philosophical debate over free will a key point is often made that universalises this idea. It is that, if there is no such thing as free will, then it makes no moral sense to punish criminals at all. If all acts that people make are either determined or spontaneous, and people have no magic Cartesian inner pilot exercising willfulness, then every accused criminal is effectively in the same position as the tumour sufferer. Their actions are the products of circumstances, rather than a brain lesion, but their social and moral position is indistinguishable. Once again, restraint may be appropriate, but not punishment. (Irrelevantly, I hold that view. But this is not a blog about my views.)
This argument, though, contains a profound asymmetry that - as far as I have been able to find - is never pointed out. If the criminal has no free will, and hence no moral culpability, then neither do the judge and jury. We can't say that the criminals couldn't help robbing the bank without also saying that the jury can't help convicting them, and the judge can't help punishing them.
Either all the people in the system are clockwork, or none of them are.