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PROBLEM OF FREE WILL IN CRIMINOLOGY (FROM CRIMINOLOGY IN PERSPECTIVE - ESSAYS IN HONOR OF ISRAEL DRAPKIN, 1977 BY SIMHA F LANDAU AND LESLIE SEBBA - NCJ-45543)

NCJ Number
45544
Author(s)
S SCHAFER
Date Published
1977
Length
9 pages
Annotation
THE CONCEPT OF FREE WILL IN THE CONTEXT OF CRIMINOLOGY AND CRIMINAL LAW IS EXAMINED FROM THE PERSPECTIVES OF DETERMINISM AND INDETERMINISM.
Abstract
THE PROBLEM OF FREEDOM OF WILL, ALSO CALLED FREEDOM OF ACTION OR FREEDOM OF SELF, IS SEEN AS A PIVOTAL ISSUE OF CRIMINOLOGY WHICH LEADS TO THE QUESTION OF MAN'S FREEDOM OF CHOICE IN ACTING OR NOT ACTING AND HIS CONSEQUENT RESPONSIBILITY FOR THIS CONDUCT. DETERMINISTIC THEORY SUGGESTS THAT MAN'S WILL DOES NOT MOTIVATE ACTION; CONDUCT THEREFORE RESULTS FROM EXTRANEOUS SOURCES. INDETERMINISM, HOWEVER, SUGGESTS THAT THE HUMAN WILL IS NOT MOTIVATED BY PHYSICAL AND ENVIRONMENTAL FACTORS; THUS MAN CAN DO ANYTHING HE WANTS TO, FOR IF 'WILL' DID NOT 'WILL' DID NOT EXIST, CAUSAL REALITY WOULD BE AN POINT OF VIEW OF CRIMINOLOGY AND CRIMINAL LAW, THIS MEANS THAT SHOULD THE DETERMINISTS BE CORRECT, CRIMINALS WOULD NOT EXIST, SINCE ALL IMPULSES FROM WHICH ACTIONS STEM ARE IRRESISTIBLE. SHOULD THE INDETERMINISTS BE RIGHT IN THEIR VIEW OF 'WILLING' TO COMMIT CRIMES, PUNISHMENT OUGHT TO BE EQUAL FOR ALL CRIMINALS, SINCE MAN WILLED THE ACTION AND COULD HAVE ACTED OTHERWISE BY CHOICE. THUS THE CRIMINAL WOULD BE FULLY AND EXCLUSIVELY RESPONSIBLE FOR HIS CHOICE OF VIOLATING THE LAW, REGARDLESS OF THE CONDUCT OF HIS VICTIM AND IRRESPECTIVE OF HIS SOCIAL AND PHYSICAL ENVIRONMENT. THE ASSUMPTION OF ALL PENAL SYSTEMS SEEMS TO BE INDETERMINISTIC: THE PHILOSOPHY OF OFFICIALLY PUNISHING THE CRIMINAL CRIMINAL HAS FREEDOM OF CHOICE. CRIMINAL LAW OPERATES NOT ONLY ON THE PRESUMPTION THAT HUMANS HAVE A FREE WILL TO DECIDE THEIR ACTIONS, BUT, AT THE SAME TIME, WITH THE IMPLICATION THAT THEY ARE INTELLIGENT AND REASONING CREATURES WHO CAN RECOGNIZE VALUES AND WHO CAN DISTINGUISH BETWEEN RIGHT AND WRONG. CRIMINAL RESPONSIBILITY WOULD EXTEND TO THOSE WHO WILLED TO COMMIT A CRIME OR NEGLECTED TO WILL OTHERWISE. TWO THEORIES PROPOSED BY PHILOSPHERS ARE COMPATLISIM IN WHICH FREEDOM AND PHYSICAL DETERMINISM CAN COEXIST, AND INCOMPATILISM, IN WHICH THESE TWO INDEPENDENT WORLDS CANNOT COEXIST. THE DUALISTIC VIEW, INVOLVING MODERATE DETERMINISM AND MODERATE INDETERMINISM COEXISTING IN HUMAN SOCIETY, OFFERS SOME ANSWER TO THE PROBLEM OF FREE WILL. THRE NOTION OF A 'MORAL AGENT' IN TERMS OF THE CRIMINAL LAW SYSTEM IS DEFINED BY AN INDETERMINIST PHILOSOPHER AS ONE WHO HAS A MORAL FACULTY, I.E., THE ABILITY TO DISTINGUISH RIGHT AND WRONG, AND WHO HAS THE CAPACITY TO REASON. ANOTHER SCHOOL OF THOUGHT MAINTAINS THAT, FROM THE DETERMINISTIC POINT OF VIEW, A MAN CAN ACT FREELY EVEN THOUGH HE ACTED NECESSSARILY AND COULD NOT HAVE ACTED OTHERWISE. SOCIALIZATION THEORY STATES THAT MAN DOES HAVE FREEDOM OF WILL, IT IS A WILL THAT HAS BEEN INFLUENCED, LIMITED, AND ARRESTED BY THE FORCE OF SOCIALIZATION PROCESSES EVEN BEFORE IT COULD EVOLVE TO A STAGE WHERE MAN COULD WILL TO WILL FREELY. THE LESS EFFECTIVE THE SOCIALIZATION PROCESS, THE BROADER THE FREEDOM OF MAN'S WILL; THE MORE SUCCESSFUL THE SOCALIZING OPERATION, THE NARROWER THE FREEDOM OF WILL AND THE RANGE OF CHOICES FROM WHICH ACTIONS CAN RESULT. THE QUESTION OF THE EXTENT OF CRIMINAL RESPONSIBILITY ARISES IF SOCIALIZATION THEORY IS ACCEPTED. NOTES ARE PROVIDED. (DAS) PROVIDED. (DAS)