The Secret Politics of the Compatibilist Criminal Law

I recently stumbled upon a really provocative paper by Anders Kaye entitled, "The Secret Politics of the Compatibilist Criminal Law." Given that one of the key issues addressed in  the paper is whether compatibilist theories of free will--which focus very heavily on dispositional traits and conscious mental states--can accommodate situational forces that are criminogenic (e.g., poverty and early childhood abuse).  According to Kaye, compatibilist theories of free will and responsibility have been used by some criminal theorists to shield the criminal law from developments in behavioral science, criminology, etc. that might otherwise lead to a less punitive justice system as well as a more egalitarian society.  In short, Kaye suggests that compatibilism is not a "politically innocent" theory of free will.  Here is the abstract:

Many criminal theorists say that we have a 'compatibilist' criminal law, by which they mean that in our criminal law a person can deserve punishment for her acts even if she does not have 'genuinely' free will. This conception of the criminal law harbors and is driven by a secret politics, one that resists social change and idealizes the existing social order. In this Article, I map this secret politics. In so doing, I call into question the descriptive accuracy of the compatibilist account of the criminal law, and set the stage for a franker discussion of criminal punishment - one that recognizes that the perpetual struggle to say just who 'deserves' punishment is driven as much by brute politics and the competition to allocate power and resources in society as by any independent moral logic.

There is already a heated debate about Kaye's novel line of reasoning over at The Garden of Forking Paths.  However, it would be nice to see an active comment thread here at The Law and Neuroscience Blog as well.  So, please take a look at the paper and then give us your thoughts!

Comments

[Thos. Cochrane]

I'm just starting on the article, which is interesting. But the author's project seems odd, at least to someone in neuroscience & ethics like me.

Why argue about the "politics" of the compatibilists and the originationists? We're not done arguing the merits of the positions! Picking sides on the basis of Kaye's description of the politics is an invitation to let politics decide the science.

For example: If it turns out, after (a lot more) analysis and argument, that the only scientifically defensible position is some form of compatibilism, then should we staunchly refuse to be compatibilists because (on Kaye's view) the compatibilists get the politics wrong?

[I look forward to reading the paper fully, since Kaye's take on the politics is at odds with my intuition on the matter--are compatibilists really "calibrated to resist...change and facilitate violent enforcement of the status quo"!?]

[David hogard]

Many criminal theorists say that we have a 'compatibilist' criminal law, by which they mean that in our criminal law a person can deserve punishment for her acts even if she does not have 'genuinely' free will. This conception of the criminal law harbors and is driven by a secret politics, one that resists social change and idealizes the existing social order.

http://legallaw.sosblog.com/admin.php?ctrl=posts&tab=posts&blog=1&post_id=51#form_comment