An Evidence-Based Objection to Retributive Justice



Advancements in neuroscience and related fields are beginning to show, with increasing clarity, that certain human behaviors stem from uncontrolled, mechanistic causes. These discoveries beg the question: If a given behavior results from some combination of biological predispositions, neurological circumstances, and environmental influences, is that action unwilled and therefore absolved of all attributions of credit, blame, and responsibility? A number of scholars in law and neuroscience who answer “yes” have considered how the absence of free will should impact criminal law’s willingness to justify punishments on the basis of retribution, with some arguing that criminal law ought to dispense with retributive justice because the concept of blameworthiness is out of touch with scientific reality. This Note posits a more practical reason for reform by reviewing available empirics on the way people perceive human agency. The research suggests that as the science of human agency becomes increasingly vivid and reductionistic, laypeople will become proportionally less willing to attribute blame, and these shifting societal intuitions will ultimately diminish criminal law’s moral credibility. The practical effects of low moral credibility might include diminished compliance, cooperation, and acquiescence with criminal laws, as well as increased general deviance. Importantly, this Note observes that these effects will likely manifest even if people retain a belief in free will. Further, ontological reality plays no part in this Note’s argument; whether we in fact have free will is irrelevant. This Note instead contributes to the discourse by highlighting the implications of oncoming shifts in lay conceptions of both particular behaviors and the natural world writ large.

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