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Humbach on Free Will & Virtue Ethics

By Lawrence Solum

John A. Humbach (Pace University School of Law) has posted Free Will Ideology: Experiments, Evolution and Virtue Ethics on SSRN. Here is the abstract:

The concept of free will in criminal justice is highly problematic.

First of all, free will could never have evolved in a world of ordinary biological forces. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds from the assumption that hurting people is presumptively wrong and therefore requires justification. If this assumption is true, then the factual dubiousness of free will presents a serious problem for current penal practices. Because the evidence makes free will unlikely and the logic of evolution makes it impossible, an important underpinning of the criminal law appears to fail.

A variant of free will, so-called compatibilism, does not solve or avoid the problem of justification. To the contrary, it seems on closer analysis to be merely a repackaging of an ancient form of virtue-ethics under which people are deemed to deserve to suffer because they are what they are.

I found the exposition of compatibilism to be a bit puzzling, as in this passage:

How could a rule-bound individual possibly have a free will? The two seem mutually exclusive. But the basic project of compatibilism is to find in human behavior a sufficient element or residue of freedom to provide a hook on which to hang moral accountability, and hence, punishment.59 The compatibilists accept that human acts are determined (rule-bound) but argue that the apparent contradiction between determinism and moral accountability can be resolved if we simply make a small revision in the conception of free will: The freedom needed for accountability does not (they say) literally require that the will be free. It is enough for free will that the person be free?free to do what she wills.60

For a compelling exposition of compatibilism, I highly recommend Dan Dennett's Elbow Room: The Varieties of Free Will Worth Wanting, which is extraordinarily lucid, compact, and contains a wonderful discussion of the role of thought experiments (or "intuition pumps").

I also have questions about the description of virtue ethics in this piece. In my opinion, the best statement is found in Rosalind Hursthouse's wonderful monograph, On Virtue Ethics.

Full post as published by Legal Theory Blog on April 10, 2010 (boomark / email).

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