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Copyright (c) 2010 Florida State University Law Review
Florida State University Law Review

Article: Powerful Particulars: The Real Reason the Behavioral Sciences Threaten Criminal Responsibility

Spring, 2010

Florida State University Law Review

37 Fla. St. U.L. Rev. 539

Author

Anders Kaye*

Excerpt



I. Introduction



The behavioral sciences 1 are always discovering new things about human beings, and criminal law scholars often wonder whether these discoveries have ramifications for the criminal law. One persistent question is whether these discoveries undercut criminal responsibility. As we read Freud and Skinner, study criminal genes and criminogenic environments, ponder the strange neurologies of violent minds and preconscious intentions, and discover the perplexing puppetry of social and situationist psychology, it comes to seem as though much of what the human actor does is driven by forces beyond his control. If so, can we really hold the criminal responsible for his crime? The question taps into classic debates about determinism, free will, and moral responsibility. On one common view, it is wrong to hold a person responsible if she did not act with free will. The behavioral sciences seem to suggest that human acts are not really free. Is it therefore wrong to hold criminal actors responsible?



This line of thought could have radical ramifications for criminal law, and especially for contemporary punishment practices. Responsibility plays an important role in punishment. For many people, even the basic inclination or desire to punish a wrongdoer depends upon the judgment that she is responsible for the wrong. And many people feel that punishment is not just unless the punished person is responsible for her act. As a result, doubts about whether a wrongdoer is responsible can shake both the motivation and the justifica- tion for ...
 
 
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