Free will and the law

"I have made a ceaseless effort not to ridicule, not to bewail, not to scorn human actions, but to understand them." - Baruch Spinoza, Theological-Political Treatise (1670)

In the July/August edition of The Humanist Michael Hanson has written an article, entitled "Towards a New Assumption in Law and Ethics," which raises an important but often undiscussed point about the ethical obligation we have to reform our legal system given the insights that the field of neuroscience has given us about the nature of free will. The short of it? Freewill is not as "free" as we'd like to think it is, and as such, we should, while maintaining legal liability for criminal actions, shift the emphasis of our justice system from retributional punishment of criminals towards rehabilitation and the prevention of crime.

This new assumption would dramatically humanize the legal system, since it would allow us to hate criminal actions, but to understand and thus pity the person who commits them. As Hanson puts it

By accepting the possibility that evil is not freely chosen, we can focus our justification for punishing a wrongdoer on the threat that person faces to the public. Society can be protected by incarcerating dangerous individuals and through the deterrent effect of threatened punishment. Accepting the "new assumption" provides a philosophical basis for respecting the human dignity of even violent criminals and provides a sound rationale for working to rehabilitate convicted offenders where such rehabilitation is physically and medically possible. A side benefit of a more humane punishment system is that the innocent who are wrongfully punished need not suffer quite as much.

If the article piques your interest, I'd recommend The Moral Animal by Robert Wright, which discussed similar themes at length.