Towards a More Reasonable Approach to Free Will in Criminal Law

Authors

Stephen O'Hanlon, Temple University

Abstract

This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy ofpunishment. Part V considers the possibility of determiningpropensity for criminal activity based on assessing causal factors and their effects on certain people. In this context, the concept of dangerous individuals and possible justifications for preventative detention of such individuals in order to protect society is assessed. The concluding section suggests that the law should take a broader view offactors that could have determinant effects on agents' actions.

Disciplines

Constitutional Law | Criminal Law | Criminal Procedure | Fourteenth Amendment | International Law | Law

Recommended Citation

Stephen O'Hanlon, Towards a More Reasonable Approach to Free Will in Criminal Law, 7 Cardozo Pub. L. Pol’y & Ethics J. 395 (2009).
Available at: https://larc.cardozo.yu.edu/cplpej/vol7/iss2/4