Adam J. Kolber (Brooklyn Law School) has posted Free Will as a Matter of Law (Philosophical Foundations of Law and Neuroscience, (Michael Pardo & Dennis Patterson eds., 2016), Oxford University Press) on SSRN. Here is the abstract:
Philosophers have long debated questions about free will, but their analyses obviously do not have the force of law. Whatever you think about free will, the law has its own perspective. Since cases and statutes say little directly on point, we turn, as we often must, to the intentions of those with authority to create law. The law’s crafters likely believed that we have souls that make choices unconstrained by the laws of physics. Such “soul-based libertarianism” conflicts with the modern scientific view that billions of particles have interacted since the beginning of time to make us take the precise actions we do in the precise circumstances we find ourselves. Since the law’s crafters aimed to punish evil-doing souls, they may never have intended to punish mechanisms like ourselves.
Scholars such as Stephen Morse and Paul Litton, by contrast, have defended compatibilist interpretations of criminal law. They believe both moral and legal responsibility are consistent with mechanistic decision-making. But their interpretations of the law are largely grounded in controversial philosophical claims and should be distinguished from interpretations grounded in legal authority. Unless compatibilists can settle the philosophical debate to widespread satisfaction — an unlikely prospect given its centuries-long history — the law’s admittedly faint libertarian signals hold special weight.
I argue that, from a legal perspective, the view that the criminal law was never intended to apply to mechanistic humans like ourselves is more plausible than the view that the law was intended to punish in a compatibilist fashion. Hence, if we focus on traditionally-recognized sources of legal authority, a plausible case can be made that our punishment policies are inconsistent with modern science and require updating.