Document Type
Working Paper
Publication Date
2024
Language
en-US
Abstract
Afreeism refers to the lack of the assumption that human beings have free will. Rather, it assumes that humans are subject to the same laws of physics, chemistry, biology, etc., that govern all other phenomena. Afreeist Legal Theory in turn is a legal theory that forgoes the assumption of free will. By foregoing the notion of free will, we also forgo notions of desert, blame, and moral responsibility. Human beings are causally or stochastically deterministic beings. As such, they can never do other than what they do. And because they never possess the ability to do otherwise, they are at all times innocent. This leads to the problem of innocence. That is, it is often held that it is unethical intentionally to punish the innocent. Yet, in a deterministic world, whenever we punish, we punish the innocent. Thus, ethically we must either abandon punishment altogether or rethink our ethics. I suggest the latter.
This article seeks 1) to convince the reader that the universe is fundamentally deterministic, that free will is an illusion, that moral responsibility for past actions makes little sense, and that retributive punishment is unjustified and, in its effect, highly problematic, 2) to address the problem of innocence and to develop an alternative ethical understanding that justifies the punishment of innocents, 3) to explore the limitations that we might want to put on the punishment of innocents, and 4) to convince the reader that an understanding of the deterministic nature of the universe, the incoherence of the notion of free will, and the consequent realization that we are all innocents may help us design a better criminal system, one that eschews retribution and vindictiveness, focuses on deterrence and rehabilitation, and takes into account everyone’s welfare - that of the victim, the perpetrator, and society as a whole.
Recommended Citation
Stephen G. Marks,
Afreeist Legal Theory and the Problem of Innocence
(2024).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4011
