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Chapter 6 - Deontology and Deterrence for Free Will Deniers

from Part II - Alternatives to Retributive Punishment

Published online by Cambridge University Press:  26 August 2019

By
Benjamin Vilhauer
Edited by
Elizabeth Shaw ,
Derk Pereboom  and
Gregg D. Caruso
Elizabeth Shaw
Affiliation:
University of Aberdeen
Derk Pereboom
Affiliation:
Cornell University, New York
Gregg D. Caruso
Affiliation:
Corning Community College, State University of New York
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Summary

In this chapter I outline what I take to be a solution to a problem about free will denial and the justification of punishment pointed out by Saul Smilansky. Smilansky argues that free will deniers must acknowledge that some institution of punishment is necessary to maintain law and order, but since criminals do not deserve to be punished, it is unjust to punish them, and we therefore have a duty to compensate them. Since this is a great injustice, we must compensate them very heavily, in fact so heavily that the institution of punishment will cease to deter and will instead become an incentive to commit crime. Previous responses to Smilansky’s “practical reductio” argument by Neil Levy, Derk Pereboom, and Gregg Caruso have emphasized consequentialist moral reasons. I advocate a deontological social contract approach to punishment that draws on Kantian and Rawlsian notions of treating criminals as ends by respecting their rational consent to punishment.

Keywords

free willpunishment, desertdeterrenceconsentsocial contractRawls
Type
Chapter
Information
Free Will Skepticism in Law and Society
Challenging Retributive Justice
 , pp. 116 - 138
Publisher: Cambridge University Press
Print publication year: 2019

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References

Caruso, G. D. (2016). Free will skepticism and criminal behavior: A public health-quarantine model. Southwest Philosophical Review, 32(1), 25–48.Google Scholar
Caruso, G. D. (2017). Public Health and Safety: The Social Determinants of Health and Criminal Behavior. London, UK: ResearchLinks Books.Google Scholar
Caruso, G. D. (2019). Free will skepticism and its implications: The case for optimism. In Shaw, E., Pereboom, D., and Caruso, G. D., eds., Free Will Skepticism in Law and Society: Challenging Retributivism, ch.3 [this volume]. Cambridge, MA: Cambridge University Press.Google Scholar
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Pereboom, D. (2013). Free will skepticism and criminal punishment. In Nadelhoffer, T., ed., The Future of Punishment. New York: Oxford University Press, pp. 49–78.Google Scholar
Pereboom, D. (2014). Free Will, Agency, and Meaning in Life. New York: Oxford University Press.CrossRefGoogle Scholar
Smilansky, S. (2011). Hard determinism and punishment: A practical reductio. Law and Philosophy, 30(3), 353–367.Google Scholar
Vilhauer, B. (2009). Free will skepticism and personhood as a desert base. Canadian Journal of Philosophy, 39(3), 489–511.CrossRefGoogle Scholar
Vilhauer, B. (2013). Persons, punishment, and free will skepticism. Philosophical Studies, 162(2), 143–163.CrossRefGoogle Scholar
Vilhauer, B. (2015). Free will and the asymmetrical justifiability of holding morally responsible. Philosophical Quarterly, 65(261), 772–789.Google Scholar
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