Let’s Not Do Responsibility Skepticism
Introduction
Key Ideas of Responsibility Skeptics
Rejection of Libertarian Free Will:
Responsibility skeptics believe that genuine moral responsibility, based on metaphysical libertarianism (the idea of libertarian free will), is impossible.
This belief asserts that human beings cannot have the kind of free will required to be held morally responsible for their actions in the traditional sense.
Rejection of Compatibilism:
Compatibilism (the view that free will and determinism can coexist) is also rejected by responsibility skeptics.
The key issue with compatibilism is that it supports retributivism, the theory that criminals should be punished for their moral desert (i.e., they deserve punishment based on their actions).
Critique of Retributivism:
Responsibility skeptics oppose retributivism for two main reasons:
Unjust Nature: Retributivism is unjust because it assumes a type of moral responsibility (libertarian free will) that is impossible.
Dysfunctional Criminal Justice: Retributivism contributes to a highly punitive, inequitable, and counterproductive criminal justice system.
Focus on Causal Responsibility:
Responsibility skeptics propose that causal responsibility—understanding the causes of behavior, such as social causation and systemic racism—should replace traditional notions of moral responsibility in the criminal justice system.
They advocate for restorative justice as a more humane and constructive approach to criminal justice.
Intersection with Criminal Justice Reform:
The responsibility-skepticism movement aligns with the broader criminal justice reform movement, aiming to create a more just and humane system.
Agreement Between Responsibility Skeptics and Realists
Both responsibility skeptics and responsibility realists share the same ultimate goals:
Minimize the number of innocent people punished.
Ensure that those who are punished for their crimes are not penalized too harshly.
The key difference between the two lies in the means to achieve these shared goals, particularly concerning moral responsibility and punishment.
Argument Against Responsibility Skepticism
Two-Part Argument:
Universal Nonresponsibility Excuse:
Responsibility skeptics are committed to adopting a universal nonresponsibility excuse in the criminal justice system. This means that everyone would be excused from moral responsibility for their actions, as they are seen as determined by factors beyond their control.
Negative Consequences of Universal Nonresponsibility:
A universal nonresponsibility excuse could:
Diminish deeply held societal values.
Dehumanize criminals further.
Exacerbate mass incarceration.
Increase punishment of innocent people.
Even if responsibility skepticism were correct, this approach would be counterproductive for reforming the criminal justice system.
Agreement with Saul Smilansky's "Illusionism"
The author agrees with Saul Smilansky’s "illusionism":
Illusionism suggests that it is practically better for society to maintain a responsibility-realist criminal justice system, which presumes that adults are morally responsible for their actions, even if this belief is ultimately false.
However, this position assumes that society remains committed to responsibility realism (i.e., that most people believe in moral responsibility).
If the majority of society were to adopt responsibility skepticism, illusionism would no longer be practical, and the criminal justice system would need to reflect the new responsibility-skeptical beliefs.
Conclusion
Smilansky’s Illusionism: The belief that a responsibility-realist approach to justice may be better for society, as long as the majority believes in moral responsibility.
Potential Shift in Society: If society were to adopt responsibility skepticism, the criminal justice system would need to align with those new beliefs to be effective and just
Even If Responsibility Skepticism Were True, a Criminal Justice System Would Still Be Necessary
Introduction to Responsibility Skepticism and Criminal Punishment
Responsibility Skepticism suggests that genuine moral responsibility is impossible. This implies that criminals (and everyone else) are not morally responsible for their actions.
At first glance, this leads to the conclusion that criminal punishment is unjust and should be abolished.
If no one is truly responsible for their actions, it seems wrong to punish anyone, just as it would be wrong to punish an innocent person.
The Flaw in the Argument: Misunderstanding of Retributivism
The argument for abolishing punishment assumes that retributivism is the only valid justification for punishment.
Retributivism asserts that people deserve punishment based on their actions (i.e., "just deserts").
Responsibility skeptics reject retributivism, as it depends on the concept of moral responsibility, which they claim does not exist.
Without retributivism, no one deserves punishment because no one is genuinely responsible for their actions.
No "just deserts": The idea that someone deserves punishment for their actions falls apart because no one is morally responsible for their choices or behavior.
Alternatives to Retributivism: Non-Retributive Justifications for Punishment
Abolition of Retributivism does not necessarily lead to the conclusion that punishment is unjust and should be abolished.
Other justifications for punishment can still exist that do not rely on the concept of "desert."
Even if punishment is unjust (because it's not based on desert), we may still need to punish criminals for reasons such as preventing future harm.
The Need for Punishment: Addressing Public Safety and Order
Even if punishment is unjust, society still needs to address crime and protect its citizens.
Criminals may violate other people's fundamental rights (such as life, liberty, property, and physical well-being).
Punishment, though unjust, is necessary to prevent greater harm, such as future crimes and societal breakdown.
The Dangers of Abolishing the Criminal Justice System
If we were to completely abolish the criminal justice system and exonerate all offenders, even with admonitions for self-improvement, society would face serious consequences:
Message of No Consequences: Abolishing punishment would signal that there are no real consequences for breaking the law.
Rise in Crime: Without consequences, crime would increase dramatically. This would lead to:
More innocent victims.
Social breakdown: Society would likely descend into chaos or anarchy, with violent crime and lawlessness rising.
A dystopian world might emerge, with violent groups (e.g., gangs and organized criminals) competing for limited resources.
Responsibility Skeptics’ Position on the Criminal Justice System
Responsibility skeptics cannot reasonably argue for the abolition of the criminal justice system. This view is seen as overly naïve and unrealistic.
Even if retributivism is rejected, responsibility skeptics must recognize that society needs a system of social control to prevent chaos and harm.
Therefore, they typically argue for non-retributive sanctions, such as quarantine or containment for serious criminals.
These sanctions are seen as necessary evils—imperfect practices designed to prevent even worse outcomes (e.g., increased crime and societal collapse).
Conclusion: Necessity of Criminal Justice System Even Without Retributivism
Even if responsibility skepticism is true and genuine moral responsibility is impossible, society still needs a criminal justice system to:
Prevent crime.
Protect society from harm.
Maintain order.
Ensure that those who violate fundamental rights are addressed, even if punishment is unjust in the retributive sense.
Non-retributive sanctions (like quarantine or containment) are a pragmatic necessity, acknowledging that the system may be unjust but still essential to avoid a worse outcome.
Responsibility Skeptics Are Committed to Replacing the Traditionally Recognized Excuses with a Universal Nonresponsibility Excuse
Introduction to Responsibility Skepticism and Its Impact on the Criminal Justice System
Responsibility Skepticism rejects the idea of genuine moral responsibility, arguing that no one is truly responsible for their actions, either morally or legally.
Responsibility Skeptics aim to replace the traditional criminal justice system with a nonretributivist foundation—one that does not assume people deserve punishment for their actions.
While they reject retributivism, they still recognize the need for the criminal justice system to protect society, prevent harm, and incapacitate dangerous individuals.
The Limitations of Traditionally Recognized Excuses
Traditionally recognized legal excuses, such as automatism, duress, entrapment, infancy, insanity, involuntary intoxication, mistake of fact, and mistake of law, are important parts of the modern criminal justice system. These defenses are meant to prevent unjust punishment for individuals who are not fully responsible for their actions due to cognitive impairments, situational constraints, or misunderstandings of the law.
Insanity Defense Example: It exists to prevent the punishment of individuals who are mentally ill and unable to understand the nature of their actions.
Why These Excuses Are Considered Essential:
They are seen as crucial to preventing injustice by excluding people from responsibility when they lack the capacity to control their behavior or understand the moral wrongfulness of their actions.
They acknowledge that moral responsibility requires certain mental capacities (e.g., awareness, intention, control).
The Responsibility Skeptic's Critique of Traditional Excuses
Responsibility skeptics argue that genuine moral responsibility is impossible for everyone, not just those who qualify for traditional excuses.
From this perspective, the notion of moral responsibility does not apply to anyone, whether sane or insane.
Therefore, the traditional excuses (such as insanity) seem arbitrary and unjust because they:
Exempt some individuals (e.g., those found insane) from responsibility and punishment, while excluding others who are equally nonresponsible (e.g., sane individuals who still lack true responsibility).
It is unfair to treat some people differently based on whether they meet specific criteria (e.g., insanity or duress) when, from a responsibility-skeptic perspective, no one is truly responsible.
The Concept of a "Universal Nonresponsibility Excuse"
Instead of maintaining traditional legal defenses based on cognitive or situational factors, responsibility skeptics propose a universal nonresponsibility excuse.
This excuse would apply to everyone, regardless of the specific factors involved in their case (such as mental illness, duress, or intoxication).
The universal nonresponsibility excuse is based on the premise that all human beings are incapable of genuine responsibility due to metaphysical reasons—i.e., because free will and moral responsibility are impossible for everyone, not just for those with cognitive or situational impairments.
Key Points of the Universal Nonresponsibility Excuse
Applies to Everyone: All people, regardless of their mental state or the circumstances they are in, are nonresponsible for their actions because moral responsibility is impossible for anyone.
No Cognitive or Situational Exceptions: The traditional defenses (like insanity or duress) that excuse people based on their mental state or external constraints are replaced by a universal excuse.
Non-Moral Foundation: The universal excuse is grounded in a metaphysical belief that humans cannot be morally responsible for their actions, rather than in specific cognitive or external factors.
Implications for Criminal Justice Reform
Replacing Traditional Defenses: The shift from specific defenses (e.g., insanity) to a universal nonresponsibility excuse has broad implications for the criminal justice system:
It would remove the distinctions between those who qualify for traditional defenses (e.g., insanity or duress) and those who do not, creating a more uniform approach to criminal responsibility.
The focus would shift from punishing individuals based on their moral responsibility to addressing public safety and harm prevention without relying on moral blame.
Impact on Accountability:
While responsibility skeptics still see a need for some form of sanctioning or incapacitation, their approach aims to move away from blame and punishment based on moral desert.
The goal is to reduce harm and protect society through measures like incapacitation and rehabilitation rather than through the retributive notion of deserving punishment.
Conclusion
Responsibility skeptics argue that, because no one is truly responsible for their actions, traditional defenses like insanity or duress are unjustly selective.
To address this, they propose a universal nonresponsibility excuse that applies to all criminals, not based on their mental state or external circumstances, but on the understanding that genuine responsibility is metaphysically impossible.
This approach seeks to remove the concept of blame from criminal justice and focus on protecting society and preventing future harm in a more equitable and humane way.
Moving to a Responsibility-Skeptical Criminal Justice System Would Be Highly Counterproductive
In this section, the argument against transitioning from a responsibility-realist/retributivist criminal justice system to a responsibility-skeptical/nonretributivist one is presented. The primary concern is that such a shift would be counterproductive, harming both individuals and society at large. Below is a detailed breakdown of the key arguments presented:
4.1. Things We Deeply Value
Several values are central to human life and society. These include accountability, agency, autonomy, dignity, forgiveness, gratitude, justice, self-respect, morality, and meaningful relationships. The concept of responsibility plays a crucial role in supporting these values.
Key Points:
Responsibility and Human Dignity:
Most people deeply value their dignity, which is tied to being perceived as responsible for their actions.
Loss of this sense of responsibility (i.e., being viewed as not accountable for one's actions) can lead to negative psychological consequences such as learned helplessness, diminished self-efficacy, and lower self-esteem.
Responsibility Skepticism and Harm:
Responsibility skeptics, by denying responsibility, risk undermining the psychological and social foundations that support these important human values. This could lead to a less humane society.
Response to Derk Pereboom's Argument:
Pereboom argues that these values (like dignity, accountability, and forgiveness) can persist even without a belief in responsibility. He suggests that we could still hold people accountable without relying on the negative emotions (e.g., resentment) tied to traditional forms of accountability.
Counter-Argument:
Psychological and Social Challenges:
For many people, accepting that neither they nor others are responsible for their actions would be psychologically and socially difficult. People would struggle to maintain a sense of personal agency.
Diminished Value of Relationships and Emotions:
If humans were not responsible for their decisions, the emotional weight of human interactions (such as forgiveness, gratitude, and love) would significantly diminish. These emotions would become less meaningful because they would no longer come from responsible beings.
The analogy is drawn to a robot expressing emotions — even if the emotions are seemingly similar, their lack of responsibility would make them far less valuable.
Human Agency vs. Machine Capacity:
The core argument is that human agency, or the ability to make meaningful decisions and judgments, distinguishes humans from even the most advanced machines.
This uniqueness of human agency contributes significantly to the value of human relationships, actions, and judgments. Responsibility skepticism risks diminishing this unique aspect of human experience.
4.2. Even More Mass Incarceration and Injustice
The main argument here is that moving toward a responsibility-skeptical criminal justice system would lead to even greater injustice and mass incarceration, especially of individuals who are "doubly innocent" (those who are both nonresponsible and nonwrongdoers).
Key Points:
Nonculpability vs. Dangerousness:
Even without the concept of culpability (i.e., moral responsibility), the criminal justice system would still need to incarcerate individuals for public safety reasons.
However, without culpability, the system would be more prone to incarcerating individuals who have not actually committed a crime but are deemed dangerous based on risk factors.
Risk Factors for Future Criminality:
The justice system would begin criminalizing risk factors, such as having criminal attitudes, antisocial personality traits, or histories of drug abuse.
These risk factors, which in a responsibility-realist system are not considered sufficient to criminalize someone, would become key in a responsibility-skeptical system.
As a result, even people who have not committed crimes could be incarcerated simply based on perceived risks.
Mass Incarceration:
The abandonment of culpability (and the focus solely on dangerousness) would likely result in the mass incarceration of people who are nonresponsible but not criminally liable.
This increase in incarceration would disproportionately affect marginalized communities and could worsen social injustice, leading to greater harm than good.
The Role of Actus Reus and Mens Rea in a Responsibility-Skeptical Society
In a responsibility-skeptical criminal justice system, the concepts of actus reus (the criminal act) and mens rea (the mental state) would undergo significant changes.
Actus Reus (The Criminal Act):
Current System (Responsibility-Realist):
The actus reus of a crime is an essential element for determining criminal liability. A person who has committed an act without mens rea (guilty mind) might still be innocent under current law if the act was accidental.
Responsibility-Skeptical System:
In the absence of responsibility, the criminal act becomes simply an accident. This would make all harmful actions equally non-blameworthy, regardless of the mental state of the actor.
Impact:
This would ease the burden of proof for prosecutors, as they would only need to prove the actus reus (the act itself), without needing to establish a mens rea.
This shift would lead to more people being convicted and incarcerated, regardless of intent or awareness, increasing the risk of injustice, particularly for those with lesser culpability.
Mens Rea (The Mental State):
Responsibility-Skeptical Arguments:
In a responsibility-skeptical society, mens rea (the mental state) would no longer be necessary for guilt. Thus, even if a person killed someone negligently (without intent), they would be equally culpable as someone who killed intentionally.
Impact on Criminal Justice:
Mass Convictions: Prosecutors could more easily secure convictions without needing to prove specific mental states. This would lead to harsher sentencing and a more punitive criminal justice system.
Greater Injustice: Many individuals, especially those who cause harm without malice (e.g., accidental deaths), could face the same punishment as those who intentionally commit crimes.
Counterpoint by Shaw: Shaw argues that even in a responsibility-skeptical system, mens rea might still serve nonretributivist functions like protecting liberty, ensuring fair warning, and serving moral education. However, the argument is made that these justifications are insufficient:
Liberty: Retaining mens rea to maximize liberty is as arbitrary as creating laws based on other irrelevant criteria (e.g., red hair).
Fair Warning: A strict liability system would still provide citizens with notice of what is prohibited. The idea that mens rea offers better notice than actus reus is weak.
Moral Education: While mens rea might contribute to moral education, this function is not essential for guilt determination in a responsibility-skeptical system. Sentencing could be determined by rehabilitation goals instead.
Final Argument Against Mens Rea in a Responsibility-Skeptical System:
Public Safety and Risk Factors: The responsibility-skeptical system would focus on incapacitating individuals based on risk factors rather than culpability. However, risk factors like past criminal behavior, personality traits, or social conditions are not reliable indicators of future criminality. Therefore, using them as a basis for punishment would increase injustice and incarceration.
Conclusion
Transitioning to a responsibility-skeptical, nonretributivist criminal justice system would likely increase injustice, harm, and mass incarceration. The abandonment of culpability and responsibility would undermine deeply valued human principles like dignity, accountability, and meaningful relationships. Furthermore, shifting focus away from mens rea and actus reus would lead to more arbitrary and excessive punishment, especially for individuals who have not committed crimes but are deemed dangerous based on imperfect predictions. The result would likely be a more punitive and less humane society.
Saul Smilansky’s Illusionism Is Not Entirely Correct
Overview:
The central argument in this section revolves around Saul Smilansky's concept of illusionism in the context of responsibility skepticism and its impact on the criminal justice system. Smilansky advocates for maintaining the belief in libertarian free will (i.e., that individuals have genuine free will and moral responsibility), even if it is ultimately false, due to the positive societal benefits of such an illusion. The author critiques this position, arguing that it may be counterproductive in a society that has adopted responsibility skepticism.
1. Key Concepts:
Responsibility Skepticism: The belief that individuals do not have genuine moral responsibility for their actions, particularly in a metaphysical sense. This challenges ideas like free will and personal culpability.
Libertarian Free Will: The idea that individuals have genuine control over their choices and actions, allowing them to be held morally responsible for their behavior.
Illusionism: Saul Smilansky's proposal to act as though libertarian free will exists, even though it may not, because he believes it benefits society in practical terms, especially within institutions like the criminal justice system.
Responsibility-Realist Society: A society in which the belief in individual responsibility (and often retributive justice) is upheld.
Responsibility-Skeptical Society: A society where most individuals accept that people are not genuinely responsible for their actions.
2. Smilansky’s Position:
Responsibility Skepticism and Practical Benefits: Smilansky acknowledges that responsibility skepticism (i.e., the denial of free will) may be true, but he proposes that society should continue to operate under the assumption of responsibility realism (i.e., the belief in libertarian free will) because institutions, including the criminal justice system, perform better when people believe in moral responsibility.
Key Claim: Even if libertarian free will is impossible, the system would function more effectively if society maintained the illusion that it exists.
Analogy: Just as a familial or romantic relationship may work better on the assumption of mutual love, a criminal justice system would better serve society if it operates on the belief that people have free will and are responsible for their actions, even if this is not true.
Benefits of Illusionism:
Helps maintain societal structures that are effective in promoting moral behavior.
Prevents instability that could arise if people were to completely abandon the idea of responsibility and free will.
3. Critique of Smilansky’s Illusionism:
Problem of Widespread Skepticism:
The argument against Smilansky’s position is that illusionism can only work in a society that is predominantly responsibility-realist. If a majority of society were to become responsibility-skeptical (i.e., a society that believes in no free will or moral responsibility), the illusion of responsibility realism could actually be detrimental.
Alienation and Cynicism: In a society where most people believe responsibility skepticism is true, maintaining an illusion of responsibility realism would lead to alienation and distrust in the criminal justice system and other institutions. This would foster cynicism and destabilize societal norms.
The Disconnect: If the criminal justice system continued to operate on assumptions that most people no longer believed in (such as moral culpability based on libertarian free will), it could lead to a disconnect between the system and the public. This alienation would likely be more harmful than the supposed benefits of maintaining the illusion of free will.
Need for Radical Transformation:
In a responsibility-skeptical society, the criminal justice system would need to fundamentally change. The focus would need to shift away from notions of moral culpability and retributive justice, and instead center on forward-looking goals such as:
Minimizing crime
Rehabilitation
Reconciliation
Clear Communication: It would be crucial for society to clearly communicate that punishment in a responsibility-skeptical system is not about retribution or metaphysical guilt but about achieving these pragmatic, forward-looking goals.
This shift would be more effective and more appropriate in a society that no longer believes in libertarian free will. The message that punishment is not about culpability but about rehabilitation and public safety would be well-received by a skeptical society.
4. Theoretical Implications:
Impact of Majority Skepticism: If responsibility skepticism were adopted by the majority, society could no longer operate under the assumption that free will exists. Therefore, a responsibility-skeptical criminal justice system would need to radically reframe its approach to punishment, justice, and rehabilitation.
Practical Shift: A justice system focused purely on public safety, rehabilitation, and crime prevention would better align with the majority view and avoid the pitfalls of alienation.
No Culpability: In a responsibility-skeptical society, culpability would be viewed as irrelevant, and punishment would not be seen as deserved or deserved based on moral blame, but rather as a necessary societal tool to protect public safety and foster social healing.
5. Conclusion:
Saul Smilansky’s Illusionism has some practical merits in the status quo, where the belief in free will is widespread. However, in a society that has adopted responsibility skepticism, it is unlikely to remain beneficial. The disconnect between the assumed free will and the majority belief in its nonexistence could lead to more harm than good.
For a responsibility-skeptical society to thrive, the criminal justice system would need to evolve, abandoning notions of culpability and adopting a forward-looking framework that focuses on rehabilitation and public safety, rather than retribution.
Conclusion
1. Key Argument:
The central claim in this conclusion is that a responsibility-skeptical criminal justice system could work only if there is sufficient societal "buy-in" — meaning, the society must predominantly or largely subscribe to responsibility skepticism for the system to function effectively.
Responsibility skepticism holds that individuals are not genuinely responsible for their actions in a metaphysical sense (i.e., due to lack of free will).
The argument challenges whether this kind of system could be sustainable in a society where most people still hold responsibility-realist views (i.e., the belief that people have moral responsibility for their actions).
2. Challenges to Responsibility-Skeptical Criminal Justice:
Lack of Widespread Skepticism:
The author, coming from a responsibility-realist perspective, argues that it is unlikely that any significant society could adopt responsibility skepticism in large numbers. The majority may not agree with or even entertain the idea of denying free will and personal responsibility.
Difficulty of Transition: Even if a society were to transition toward responsibility skepticism, there would be significant challenges in implementing a criminal justice system based solely on that perspective.
Emotional Conflict (Responsibility-Realist vs. Skeptic Emotions):
Retributivist Emotions: The author suggests that human nature is "hardwired" to respond to wrongdoing with retributivist emotions such as indignation, resentment, and vengefulness — emotions tied to the belief in moral responsibility.
These emotions, which are grounded in responsibility realism, would likely conflict with the theoretical commitment to responsibility skepticism in a mixed society. People may struggle to suppress these natural emotional responses, which could create a tension between their beliefs (responsibility skepticism) and their instinctive reactions to crime and punishment.
3. Potential Consequences of the Tension:
Tension Between Theoretical Beliefs and Emotional Reactions:
The dissonance (conflict) between a society's theoretical commitment to responsibility skepticism and the emotional responses of its members could lead to instability within the criminal justice system.
If the majority of people still feel a moral urge to seek punishment based on a belief in personal responsibility (through indignation, resentment, etc.), while the system operates under responsibility skepticism, it may create institutional dysfunction.
The criminal justice system could be pulled in two opposite directions: one rooted in theoretical principles (responsibility skepticism) and the other driven by emotional impulses (retributive justice).
4. Survival of the System and Society:
Survival of the Criminal Justice System:
If this tension persists, it is difficult to see how the criminal justice system could maintain its stability and functionality in such a society.
A criminal justice system that is perceived as inconsistent or disconnected from people's emotional responses and moral intuitions could lose legitimacy and be undermined over time.
Societal Impact:
The larger society would depend on the criminal justice system to protect its core values, such as life, liberty, property, and physical well-being.
If the system fails to address crimes in a way that aligns with people's moral intuitions or creates continuous tension, it could undermine public trust, leading to societal instability.
5. Conclusion:
The author argues that while responsibility skepticism may be a theoretically appealing position, it faces significant practical challenges when applied to the criminal justice system, especially in a society that has not fully embraced this perspective.
Human nature's predisposition toward responsibility realism and retributivism may create an insurmountable conflict with a responsibility-skeptical system, making it difficult for such a system to survive without major ideological and emotional shifts in society.
Ultimately, a society committed to responsibility skepticism would need to radically rethink the nature of crime, punishment, and justice, focusing on more forward-looking goals like rehabilitation and public safety rather than retribution. But achieving this transformation in a society still grounded in responsibility realism is highly problematic.