Catholic University Law Review


Human free will is foundational to our criminal justice system, yet contemporary scientific understanding casts doubt on a robust sense of human free will. If a person’s actions are wholly determined by the laws of physics, is that person morally deserving of punishment? This Article argues that our criminal justice system can be put on a footing that is not threatened by physical determinism. It suggests that a coherent system of criminal punishment can be founded on Daniel Farrell’s notion of “weak retributivism.” The Article build on Farrell’s work and develops a system built up from the universal right to self-defense, a right that does not depend on whether an aggressor is morally responsible for his actions. Under the system, the criminal is punished not because he is morally responsible for his actions, but because society cannot avoid the fact that someone must bear the harm inflicted by criminal conduct and is entitled to choose that the criminal, rather than society at large, suffer that harm. The Article briefly sketches how this system would function and how it could determine what punishment to impose and when to excuse criminal conduct.