Criminal Common Law Compatibilism

by Stephen Morse

I argue that criminal law is a thoroughly folk-psychological enterprise that is completely consistent with the truth of determinism or universal causation.

If determinism or something quite like it is true, as I assume it is, then compatibilism, which is a defensible, plausible view in the metaphysical debate about determinism, free will and responsibility, provides the only secure basis for criminal responsibility. Free will is neither a criminal law criterion nor foundational for responsibility because the distinctions the law draws are consistent with the truth of determinism and moral and political positions we have good reason to endorse. I specifically address why “character and capacity luck” do not undermine responsibility and consider external challenges to responsibility and find them wanting.

I conclude that common law compatibilism is normatively desirable because it takes people seriously as moral agents worthy of respect.