scholarly journals How Folk Beliefs about Free Will Influence Sentencing

2013 ◽  
Vol 16 (3) ◽  
pp. 449-493 ◽  
Author(s):  
Emad H. Atiq
Keyword(s):  
Free Will ◽  
Criminal Law ◽  
Social Deprivation ◽  
Modern Science ◽  
Moral Judgments ◽  
Legal Doctrine ◽  
Folk Beliefs ◽  
Corrective Effect ◽  
Underlying Causes ◽  
Causes Of Crime

Do recent results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about “free will” that drive criminal law? This article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely held folk beliefs about free will—beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation—a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.

scholarly journals For the law, neuroscience changes nothing and everything

2004 ◽  
Vol 359 (1451) ◽  
pp. 1775-1785 ◽  
Author(s):  
S. Zeki ◽  
O. R. Goodenough ◽  
Joshua Greene ◽  
Jonathan Cohen
Keyword(s):  
Free Will ◽  
Criminal Law ◽  
Cognitive Neuroscience ◽  
Moral Intuitions ◽  
Legal Doctrine ◽  
New Information ◽  
The Law ◽  
The Mind ◽  
The Brain

The rapidly growing field of cognitive neuroscience holds the promise of explaining the operations of the mind in terms of the physical operations of the brain. Some suggest that our emerging understanding of the physical causes of human (mis)behaviour will have a transformative effect on the law. Others argue that new neuroscience will provide only new details and that existing legal doctrine can accommodate whatever new information neuroscience will provide. We argue that neuroscience will probably have a transformative effect on the law, despite the fact that existing legal doctrine can, in principle, accommodate whatever neuroscience will tell us. New neuroscience will change the law, not by undermining its current assumptions, but by transforming people's moral intuitions about free will and responsibility. This change in moral outlook will result not from the discovery of crucial new facts or clever new arguments, but from a new appreciation of old arguments, bolstered by vivid new illustrations provided by cognitive neuroscience. We foresee, and recommend, a shift away from punishment aimed at retribution in favour of a more progressive, consequentialist approach to the criminal law.

scholarly journals METHODOLOGICAL FUNDAMENTALS OF DOMESTIC CRIMINAL SCIENCE: FORMATION OF COMPARATIVE METHOD DURING THE MIDDLE OF XIX – EARLY XX CENTURY

2021 ◽  
Vol 74 (1) ◽  
pp. 104-113
Author(s):  
Serhiy Denysov ◽  
◽  
Maksym Puzyrevskyi ◽  
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Comparative Method ◽  
Criminal Liability ◽  
Comparative Cognition ◽  
Modern Science ◽  
Legal Doctrine ◽  
The Future ◽  
Domestic Law ◽  
Qualitative Changes

The paper raises the question of a current role of methodology domestic criminal law and criminal law research. Methodological problems of criminal law are analyses, in particular the process of formation of the comparative (comparative) method in the works of criminologists of the middle of the XIX – beginning of the XX century. It is emphasizes that the comparative method of cognition contributes to the development of national domestic law, in particular, criminal law, as the above method is potentially the powerful driving force for its transformation. It is the most effective way to establish the patterns of development of law, by comparing legal phenomena at different times in different countries. It is possible to predict qualitative changes in foreign and domestic law in the future by having established a certain pattern of such development, it is possible to predict qualitative changes in foreign and domestic law in the future. Comparative analysis in the field of criminal law has many useful manifestations. For example, for a domestic legislator, it can be a source of important information about the legislative regulation of similar criminal relations in other countries. Such an analysis can be useful to the judiciary by clearly demonstrating the advantages or disadvantages of alternative ways of interpreting criminal law in foreign jurisdictions. Ukrainian legal doctrine, in turn, would only benefit from new theoretical knowledge and scientific approaches to solving modern problems of criminal liability. Not to mention the representatives of higher legal education, who with the help of a comparative (comparative) method will be able to teach future Ukrainian law enforcement and law enforcement officers to think critically and comprehensively, significantly expanding their professional horizons. The paper focuses on the fact that a methodology of the modern science of criminal law is a complex and multi-faceted institution that covers: a) analysis of a criminal law language; b) the structure and operative system of research methods applied in the criminal law; c) a conceptual frame of criminal law; d) laws of appearance, functioning and changes of scientific legal theories and doctrines in criminal law; e) problems of a structure of scientific knowledge in criminal law and scientific theories (constructions). The authors emphasizes that it is in the process of comparative (comparative) cognition that researchers have an ideas and suggestions for improving the functioning of domestic and foreign criminal legislation.

scholarly journals Rethinking Criminal Responsibility for Poor Offenders: Choice, Monstrosity, and the Logic of Practice

2011 ◽  
Vol 55 (4) ◽  
pp. 771-817 ◽  
Author(s):  
Marie-Eve Sylvestre
Keyword(s):  
Free Will ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Legal Doctrine ◽  
Power Differential ◽  
Economic Disparities ◽  
Essential Components

In theory and in discourse, Canadian criminal law insists on the importance of free will, choice, and difference in order to hold someone criminally responsible and to legitimize punishment. Yet legal doctrine is constructed and applied in a very technical and descriptive manner that usually casts aside practical considerations, proceeds on utilitarian grounds, and simplifies what it means to be free, rational, and different. Recent proposals to strengthen or to eliminate the retributive model (e.g., to include in the analysis considerations such as socio-economic disparities and power differential or to definitely shift the discourse toward utilitarian considerations) still rely on assumptions about agency, liberty, and equality that are grounded in contested sociological evidence. As a result, their capacity to promote concrete reform is limited. In this paper, the author draws from the works of Bourdieu and other praxis theorists and argues that their research could shed new light on our understanding of choice and difference—two essential components in the assessment of responsibility. The author concludes by showing what criminal law theory could look like, especially in the case of poor offenders, if reformers were to consider such sociological evidence.

Coercive Persuasion As a Specific Type of Violence in Criminal Law

2020 ◽  
Vol 1 (1) ◽  
pp. 61-72
Author(s):  
Carlos Bardavío Antón
Keyword(s):  
Criminal Law ◽  
Comparative Law ◽  
Third Parties ◽  
Physical Injury ◽  
Comprehensive Understanding ◽  
Legal Doctrine ◽  
New Approach ◽  
Freedom Of Will ◽  
Definition Of ◽  
Regulatory Problems

The field of cults, and that of destructive or coercive cults in particular, has received little attention from the perspective of criminal law doctrine. Supporters of such groups often claim to be victims of a violation related to freedom of will. In this article, I consider various methodologies and manipulation techniques used by such groups and suggest that comparative law, criminal definitions, and regulatory problems provide the basis for a more comprehensive understanding of criminal phenomenology that includes these concerns: the loss of freedom through coercive persuasion, and thus being the victim of a crime, or through becoming an instrument for the commission of crimes ordered by third parties. Research shows that the conventional definition of crime against freedom of will and physical injury is inadequate. I posit that a new approach to legal doctrine and criminal classification is required to fight against new crime phenomenology. I propose a criminal classification aimed at considering coercive persuasion as a crime, and a definition for the criminalization of certain organizations that engage in willful misconduct or reckless conduct.

The Relativity of Free Will

Philosophy ◽  
1929 ◽  
Vol 4 (15) ◽  
pp. 325-331
Author(s):  
Herbert Samuel
Keyword(s):  
Free Will ◽  
Criminal Law ◽  
Political Action ◽  
Public Affairs ◽  
Human Responsibility ◽  
Individual Human

I was led to philosophy by politics. There can be no foundation for political action except in ethics; and there can be no foundation for ethics except in some form of metaphysics, whether religious or other. And one cannot travel very far along the philosophic road— particularly if one has in mind the need of arriving at some definite destination—without finding as an obstacle the perennial problem of Free Will. It is an obstacle which has somehow to be crossed. It cannot be evaded or ignored. The man who is dealing with public affairs—with the principles of Criminal Law, for example, or with the factors that make for peace or war, and indeed with any of the major questions that confront our society—if he tries to think things out, is faced constantly by the problem of individual human responsibility; just as the man of religion is faced by it constantly.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

scholarly journals Do Moral Judgements Motivate Free Will Belief?

2019 ◽  
Author(s):  
Andrew Elliott Monroe ◽  
Dominic Ysidron
Keyword(s):  
Free Will ◽  
Causal Relationship ◽  
Attribution Theory ◽  
Replication Study ◽  
Moral Judgments ◽  
Experiment Study ◽  
Norm Violation ◽  
Immoral Behavior ◽  
Moral Judgements ◽  
Do So

Free will is often appraised as a necessary input to for holding others morally or legally responsible for misdeeds. Recently, however, Clark and colleagues (2014), argued for the opposite causal relationship. They assert that moral judgments and the desire to punish motivate people’s belief in free will. In three experiments—two exact replications (Studies 1 & 2b) and one close replication (Study 2a) we seek to replicate these findings. Additionally, in a novel experiment (Study 3) we test a theoretical challenge derived from attribution theory, which suggests that immoral behaviors do not uniquely influence free will judgments. Instead, our nonviolation model argues that norm deviations, of any kind—good, bad, or strange—cause people to attribute more free will to agents, and attributions of free will are explained via desire inferences. Across replication experiments we found no evidence for the original claim that witnessing immoral behavior causes people to increase their belief in free will, though we did replicate the finding that people attribute more free will to agents who behave immorally compared to a neutral control (Studies 2a & 3). Finally, our novel experiment demonstrated broad support for our norm-violation account, suggesting that people’s willingness to attribute free will to others is malleable, but not because people are motivated to blame. Instead, this experiment shows that attributions of free will are best explained by people’s expectations for norm adherence, and when these expectations are violated people infer that an agent expressed their free will to do so.

scholarly journals Social Conditionality of Establishing Criminal Responsibility and Punishment for Military Personnel

Lex Russica ◽  
2020 ◽  
Vol 73 (6) ◽  
pp. 97-109
Author(s):  
V. P. Bodaevskiy
Keyword(s):  
Public Relations ◽  
Criminal Law ◽  
Military Personnel ◽  
Criminal Behavior ◽  
Criminal Responsibility ◽  
Modern Science ◽  
Legal Regulation ◽  
Military Law ◽  
Definition Of ◽  
The Individual

Many publications are devoted to the identification of social conditionality of criminal regulations. However, the science of criminal law does not have any comprehensive research on the social conditionality of establishing criminal responsibility and punishment for military personnel. In this regard, its essence, features and criteria for identification remain practically unknown. The paper reveals the problematic aspects of the concept and meaning of social conditionality of establishing criminal responsibility and punishment for military personnel; the author’s definition is given. Based on the widespread opinion in the theory of criminal law that the mechanism for identifying this social condition consists of criteria that are studied by the legislator at the appropriate stages of the processes of criminalization (decriminalization) and penalization (depenalization) of military socially dangerous acts, the author analyses them in detail. The problem of ways of legal regulation of criminal responsibility and punishment of military personnel is touched upon. It is stated that the peculiarity of the definition of this social conditionality is the resolution by the legislator, among other dilemmas, of the question of the need for normative fixing of a special military or ordinary prohibition and (or) fixing of the corresponding special military regulationsin the general part of the Criminal Law.The author concludes that the identification of social conditionality of the criminal-normative prescription on responsibility and punishment of military personnel is one of the important tasks of modern science of criminal law, which necessitates the development of a unified approach to the structure and content of this process. The establishment of the theoretical and legal essence of this conditionality should be considered as the most important step in this direction. The author offers the following definition. It is the compliance of criminal regulations that establish responsibility and punishment for criminal behavior of military personnel, resulting from the demand of society in the objective need for criminal law protection of military law and order and other public relations that are most important for the individual, society and the state.

scholarly journals Sexual Orientation and Gender Identity as Penalizing Criteria of Hate Speech

2020 ◽  
Vol 40 (1) ◽  
pp. 91-108
Author(s):  
Filip Mateusz Ciepły
Keyword(s):  
Sexual Orientation ◽  
Gender Identity ◽  
Supreme Court ◽  
Criminal Law ◽  
Hate Speech ◽  
Criminal Responsibility ◽  
European Law ◽  
Legal Doctrine ◽  
And Gender

The article contains arguments raised in Polish discussion on the problem of sexual orientation and gender identity as penalizing criteria of hate speech. The Author points out regulations of Polish criminal law providing conditions of criminal responsibility for hate speech and binding criteria of the penalization, draft amendments in this area presented in recent years, as well as Polish legal doctrine or Supreme Court reviews referred to the issue. The background of the analyzes are provisions of international and European law as well as selected European states.

This Isn’t the Free Will Worth Looking For

2016 ◽  
Vol 8 (2) ◽  
pp. 191-199 ◽  
Author(s):  
Andrew E. Monroe ◽  
Garrett L. Brady ◽  
Bertram F. Malle
Keyword(s):  
Free Will ◽  
Moral Judgment ◽  
Moral Behavior ◽  
Moral Judgments ◽  
And Behavior ◽  
Perceived Choice ◽  
The Relationship

According to previous research, threatening people’s belief in free will may undermine moral judgments and behavior. Four studies tested this claim. Study 1 used a Velten technique to threaten people’s belief in free will and found no effects on moral behavior, judgments of blame, and punishment decisions. Study 2 used six different threats to free will and failed to find effects on judgments of blame and wrongness. Study 3 found no effects on moral judgment when manipulating general free will beliefs but found strong effects when manipulating the perceived choice capacity of the judged agent. Study 4 used pretested narratives that varied agents’ apparent free will and found that perceived choice capacity mediated the relationship between free will and blame. These results suggest that people’s general beliefs about whether free will exists have no impact on moral judgments but specific judgments about the agent’s choice capacity do.

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