FREE WILL SKEPTICISM IN LAW AND SOCIETY “Freewillskepticism”referstoafamilyofviewsthatalltakeseriously thepossibilitythathumanbeingslackthecontrolinaction–i.e.,the free will – required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relation- ships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without freewillandso-calledbasicdesertmoralresponsibilitywouldnotbe harmfulintheseways,andmightevenbebeneficial.Thiscollection addressesthepracticalimplicationsoffreewillskepticismforlawand society.Itcontains eleven original essays that providealternatives to retributive punishment, explore what (if any) changes are needed for the criminal justice system, and ask whether we should be optimistic or pessimistic about the real-world implications of free will skepticism.   is a lecturer in criminal law and criminology at the University of Aberdeen, where she is also a codirector of the Justice Without Retribution Network.   isSusanLinnSageProfessorintheSageSchoolof PhilosophyandSeniorAssociateDeanoftheArtsandHumanitiesat Cornell University. He is the author of Living without Free Will (),ConsciousnessandtheProspectsofPhysicalism(),andFree Will, Agency, and Meaning inLife ().  .  is Professor of Philosophy at SUNY Corning and Honorary Professor of Philosophy at Macquarie University. He isalsoacodirectoroftheJusticeWithoutRetributionNetworkatthe University of Aberdeen School of Law. His books include Free Will and Consciousness () and Exploring the Illusion of Free Will and Moral Responsibility (). FREE WILL SKEPTICISM IN LAW AND SOCIETY Challenging Retributive Justice   ELIZABETH SHAW UniversityofAberdeen DERK PEREBOOM CornellUniversity GREGG D. CARUSO SUNYCorning UniversityPrintingHouse,Cambridge,UnitedKingdom OneLibertyPlaza,thFloor,NewYork,,USA WilliamstownRoad,PortMelbourne,,Australia –,rdFloor,Plot,SplendorForum,JasolaDistrictCentre,NewDelhi–,India AnsonRoad,#–/,Singapore CambridgeUniversityPressispartoftheUniversityofCambridge. ItfurtherstheUniversity’smissionbydisseminatingknowledgeinthepursuitofeducation, learning,andresearchatthehighestinternationallevelsofexcellence. www.cambridge.org Informationonthistitle:www.cambridge.org/ :./ ©CambridgeUniversityPress Thispublicationisincopyright.Subjecttostatutoryexception andtotheprovisionsofrelevantcollectivelicensingagreements, noreproductionofanypartmaytakeplacewithoutthewritten permissionofCambridgeUniversityPress. Firstpublished PrintedandboundinGreatBritainbyClaysLtd,ElcografS.p.A. AcataloguerecordforthispublicationisavailablefromtheBritishLibrary. ----Hardback CambridgeUniversityPresshasnoresponsibilityforthepersistenceoraccuracy ofURLsforexternalorthird-partyinternetwebsitesreferredtointhispublication anddoesnotguaranteethatanycontentonsuchwebsitesis,orwillremain, accurateorappropriate. Contents List of Contributors page vii  Free Will Skepticism in Law and Society: An Overview  Gregg D. Caruso, Elizabeth Shaw,and Derk Pereboom          :  .    Free Will Denial and Deontological Constraints  Saul Smilansky  Free Will Skepticism and Its Implications: An Argument for Optimism  Gregg D. Caruso  Beyond the Retributive System  Bruce N. Waller         Free Will Skepticism and Prevention of Crime  Derk Pereboom  Deontology and Deterrence for Free Will Deniers  Benjamin Vilhauer  Free Will Skepticism, General Deterrence, and the “Use” Objection  Kevin J.Murtagh v vi Contents             Fichte and Psychopathy: Criminal Justice Turned Upside Down  Michael LouisCorrado  Causality and Responsibility in Mentally Disordered Offenders  John Callender  The Implications of Free Will Skepticism for Establishing Criminal Liability  Elizabeth Shaw  Free Will Skepticism and Criminal Punishment: A Preliminary Ethical Analysis  Farah Focquaert Index  Contributors   is a consultant psychiatrist and Honorary Senior Lecturer in Psychology at the University of Aberdeen. He is the author of Free Will and Responsibility: A Guide for Practitioners ().  .  is Professor of Philosophy at SUNY Corning and Honorary Professor of Philosophy at Macquarie University. He is also a codirector of the Justice Without Retribution Network at the University ofAberdeen.HisbooksincludeNeuroexistentialism:Meaning,Morals,and Purpose in the Age of Neuroscience (coedited with Owen Flanagan, ).    is Arch Allen Distinguished Professor of Law EmeritusattheUniversityofNorthCarolinaSchoolofLaw.Hewrites mainlyaboutthephilosophyofcriminallaw,buthehasalsowrittenon law and economics, on tort law, and on comparative law.   is Professor of Philosophical Anthropology at Ghent University. She is the author of numerous papers in leading scientific and philosophical journals. She is a coeditor of theforthcoming Routle- dge Handbook of the Philosophy and Science of Punishment.  .  is an Assistant Public Defender in Asheville, North Carolina, where he represents juveniles and indigent adults in criminal cases. His philosophical work has focused on punishment, sentencing theory, and free will.   is Susan Linn Sage Professor in the Sage School of Philosophy and Senior Associate Dean of the Arts and Humanities at Cornell University. He is the author of books including Free Will, Agency, and Meaning in Life ().   is a lecturer in criminal law and criminology at the University of Aberdeen. She is a codirector of the Justice Without Retribution Network. vii viii List of Contributors   is a professor in the Department of Philosophy at the University of Haifa, Israel. He is the author of Free Will and Illusion (),  Moral Paradoxes (), and over eighty papers in philo- sophical journals and edited collections.   is Professor of Philosophy and Chair of the Phil- osophyDepartmentatCityCollege,CUNY.Hehaspublishedavariety of articles in edited volumes and journals, including The Philosophical Quarterly,Philosophical Studies,theCanadian Journalof Philosophy,and the American Philosophical Quarterly.  .  is Professor of Philosophy at Youngstown State University. His books include Against Moral Responsibility (), The Stubborn System of Moral Responsibility (), and The Injustice of Punishment ().   Free Will Skepticism in Law and Society: An Overview Gregg D. Caruso, Elizabeth Shaw, and Derk Pereboom Free will skepticism refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e., the free will–requiredformoralresponsibilityinaparticularbutpervasivesense. Thissenseistypicallysetapartbythenotionofbasicdesertandisdefined intermsofthecontrolinactionneededforanagenttobetrulydeserving of blame and praise, punishment and reward (see, e.g., Pereboom , ; Levy ; Caruso and Morris ). For agents to be morally responsible for their actions in this sense is for the actions to be theirs in suchawaythattheywoulddeservetobeblamediftheyunderstoodthat it was morally wrong, and they would deserve to be praised if they understood that it was morally exemplary. The desert at issue here is basic in the sense that the agents would deserve to be blamed or praised just because they have performed the action, given an understanding of its moral status, and not, for example, by virtue of consequentialist or contractualist considerations (Pereboom : ). Accordingly, here we willunderstandfreewillasthecontrolinactionrequired forbasicdesert moral responsibility, and free will skepticism as doubt or denial that we have this sort of control. Somefreewillskepticsdenythatwearemorallyresponsibleinthissense becausetheybelieveitisincoherentorimpossiblethatwesatisfyitscontrol conditions (Strawson , , ). That is, it’s incoherent or impossible that we have the free will required to be morally responsible in this sense. Others maintain that, though not incoherent or impossible, our best philosophical and scientific theories about the word provide strongandcompellingreasonsforadoptingtheskepticalperspective.What all varieties of free will skepticism share, however, is the belief that the evidential standard for our having basic desert moral responsibility is not met,andasaresultthereisastrongpresumptionagainstthelegitimacyof the practices associated with it – such as the reactive attitudes of resent- ment, indignation, backward-looking blame, and retributive punishment. 