This chapter sets out a non-retributive conception of blame and of self-blame, that is, one that does not invoke the notion of basically deserved pain or harm. To blame is instead to take on a non-retributive stance of moral protest. The reasons for moral protest are forward-looking: moral formation or reconciliation in a relationship that has been impaired due to wrongdoing, protection from wrongdoing, and restoration of the integrity of its victims. Regret, a painful response to one’s own wrongdoing, which by contrast with guilt (by stipulation) does not involve the supposition that the pain it involves is basically deserved, may appropriately accompany self-blame. The pain of guilt, an attitude distinct from regret, conceptually involves basic desert since it involves the supposition that it would be prima facie permissible for those who are appropriately situated to impose it on a wrongdoer for a non-instrumental reason. The pain of regret, by contrast, does not involve this supposition.

“Free will skepticism” refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e. the free will – required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. In this chapter, we attempt to provide a brief sketch of the traditional free will debate, define the various positions, and frame the debate over the practical implications of free will skepticism. We focus especially on the implications of free will skepticism for the criminal law and the retributive justification of punishment.

The two instruments the state uses to maintain order are the corrective and the preventive. Those who reject the notion of moral responsibility either prefer to abandon punishment in favor of preventive techniques or seek to justify (nonretributive) punishment. Although I think punishment is essentially retributive and cannot be justified, I also think we must, if possible, avoid yielding to the preventive worldview. We must distinguish the lengths to which we are willing to go with incompetent or irrational individuals who are dangerous from the lengths to which we are willing to go with rational and competent offenders. My view is that borrowing from punishment its harsh methods we maintain the dignity of competent offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I call this approach correction rather than punishment, because it lacks the retributive element that makes punishment punishment. Here I suggest how this view might be defended if we start, as Fichte does, from the assumption that those who violate any law deserve to be made outlaws; in current terminology, to be subjected to preventive detention and preventive techniques generally.

Recent free will denialism (FWD) tends to be optimistic, claiming that not only will the rejection of the belief in free will and moral responsibility not make matters dreadful but that we are indeed better off without them. I address the denialist claim that FWD has the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment, even without belief in free will, moral responsibility, and desert. I raise seven reasons for doubt concerning the ability of FWD to maintain deontological constraints. Together they present a strong case for doubting the optimism of FWD.

The free will skeptic aims to articulate a theory for treatment of criminals that rejects retributivism, since this justification for punishment is inconsistent with the skeptic’s outlook, but nevertheless actually works in the real world. In past versions of such an account I’ve emphasized the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration (Pereboom 2001, 2014), and I’ve endorsed Gregg Caruso’s embedding of the view within a public health model (Caruso 2016, 2017; Pereboom and Caruso 2018). Recently I’ve paid special attention to the permissibility and the limits of special and general deterrence (Pereboom 2017b, 2019). Here I set out this view and develop it in certain key respects in response to the latest objections raised against it.

The free will skeptic aims to articulate a theory for treatment of criminals that rejects retributivism, since this justification for punishment is inconsistent with the skeptic’s outlook, but nevertheless actually works in the real world. In past versions of such an account I’ve emphasized the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration (Pereboom 2001, 2014), and I’ve endorsed Gregg Caruso’s embedding of the view within a public health model (Caruso 2016, 2017; Pereboom and Caruso 2018). Recently I’ve paid special attention to the permissibility and the limits of special and general deterrence (Pereboom 2017b, 2019). Here I set out this view and develop it in certain key respects in response to the latest objections raised against it.

Traditional theists in our environment, and christians in particular, tend to endorse libertarianism about free will, according to which we have the free will required for moral responsibility, free will of this sort is incompatible with determinism, and determinism is false. Divine determinism is nonetheless well represented in the history of traditional theism – and by “divine determinism” I mean to specify the position that God is the sufficient active cause of everything in creation, whether directly or by way of secondary causes such as human agents. This position is either obviously or arguably held by Augustine, Luther, Calvin, Descartes, Spinoza, Leibniz, and Schleiermacher, among others. Yet despite the historical prominence of this view, there is an obvious and compelling reason for rejecting it. The consequence that God is the sufficient active cause of all the evils that occur threatens to make divine determinism unconscionable from the very outset. Now if an available alternative were the position that we have libertarian free will, that God is not omnipotent, and that there are evil forces in the universe, other than mere willings, against which God needs to struggle, then one can see why rejecting the determinist perspective would seem attractive. Yet even if this Zoroastrian alternative remains the de facto position of some, it is outside the bounds of traditional Christian, Jewish, and Islamic orthodoxy.

IS THERE AN ACCEPTABLE HARD INCOMPATIBILIST POSITION ON MANAGING CRIMINAL BEHAVIOR?

Perhaps the most frequently and urgently voiced criticism of the type of view I am developing is that the responses to criminal behavior it will allow are insufficient for acceptable social policy. The way matters actually lie, however, is more complex than this objection suggests. Some of the most prominent justifications for punishing criminals will be undermined by hard incompatibilism, and thus in some respects it may appear to permit fewer policies for opposing crime than the alternative positions. But, as we shall see, each of these justifications faces significant difficulties independent of hard incompatibilist considerations. At the same time, hard incompatibilism leaves other methods for responding to such behavior intact, and arguably, these methods are sufficient for good social policy. As a result, we need not extend Dennett's advice to criminals and treat them as if they were morally responsible (with a possible exception, as we shall see). Let us discern which justifications for dealing with criminal behavior are legitimate and which are not, given hard incompatibilism, while taking care to note whether this view is left with fewer tenable policies than the alternative positions.

The problem for the hard incompatibilist position is that without the robust conceptions of agency that are ruled out if hard incompatibilism is true, it would appear unacceptable to blame criminals for what they have done, and we would therefore seem to have inadequate justification for punishing them.

In recent decades, with advances in psychology, sociology, and neuroscience, the notion that certain patterns of human behavior may ultimately be due to factors beyond our control has become a serious cultural concern. In our society, the possibility that criminal behavior, for example, may be caused by influences in upbringing or by abnormal features of the brain is very much a live hypothesis. Furthermore, many people agree that criminals cannot be blameworthy for actions and tendencies produced in this way. At the same time, most assume that even if criminal actions frequently have this sort of causal history, ordinary actions are not similarly generated, but rather are freely chosen, and we can be praiseworthy or blameworthy for them.

A less popular and more radical claim is that factors beyond our control produce all of our actions. Since the first appearance of strategies for comprehensive explanation in ancient times, philosophers have been aware that our theories about the world can challenge our commonplace assumptions about agency in this more general way. One reaction to this stronger claim is that it would leave morality as it is, or that if any revisions must occur, they are insubstantial. But another is that we would not then be blameworthy or praiseworthy for our actions – in the philosophical idiom, we would not be morally responsible for them. I shall argue that our best scientific theories indeed have the consequence that we are not morally responsible for our actions.

CHALLENGING COMPATIBILISM

In Chapter 1, I argued that whether an agent could have done otherwise is explanatorily irrelevant to whether he is morally responsible for his action. There I also contended that this argument does not undermine incompatibilism, for there is an incompatibilist intuition that remains untouched by it. The intuition is that if all of our behavior was “in the cards” before we were born, in the sense that things happened before we came to exist that by way of a deterministic causal process, inevitably result in our behavior, then we cannot legitimately be blamed for our wrongdoing. I also remarked that in the dialectic of the debate, one should not expect compatibilists to be moved much by this incompatibilist intuition alone to abandon their position. Rather, the best type of challenge to compatibilism is that this sort of causal determination is in principle as much of a threat to moral responsibility as is covert manipulation. In this chapter, I develop this argument.

This anti-compatibilist strategy plays a pivotal role in my argument for the causal history principle: