Michael Louis Corrado

One of the most difficult challenges for the “hard incompatibilist” is to deal with the overwhelming objections to the therapeutic/incapacitative approach to crime control that seems to follow naturally from his theory. See, for example, Pereboom's _Living Without Free Will_, Chapter 6. Responding to this challenge requires the hard incompatibilist to (1) find a way to distinguish between those who have traditionally been found responsible for their crimes and those who have been found not to be responsible, and (2) justify the infliction of intentionally harsh treatment on at least some of those who fall into the first category. I attempt to develop a theory that satisfies both these requirements.

In the recent literature a number of free will skeptics, skeptics who believe that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine.

In this paper I propose a form of free will fallibilism. Unlike the free will realist who is fully persuaded that we have sufficient evidence of freedom to justify holding individuals morally responsible for what they do and imposing punishment, and unlike the free will skeptic who is fully persuaded that we do not have enough evidence to believe that we face a future of open alternatives, the free will fallibilist will believe that we have enough evidence to justify a belief in freedom for some purposes but not for others. Along the way I argue that deliberation-compatibilism of the sort recently defended by Pereboom is subject to a very familiar sort of counterexample. The question that concerns me the most is whether punishment—this brutal institution that disposes of the lives of countless of our most vulnerable citizens—can be justified. I think it cannot, precisely because there is not sufficient evidence that human beings are free to choose between branching alternatives and so deserve to be treated like that. At least, if there is such justifying evidence it is more or less completely balanced by evidence that all events including human actions have causes. Moreover, I find compatibilism utterly unpersuasive. At the same time, I believe that I am a free agent; what I do is in large part up to me. I believe that the explanation of action cannot be reduced to causal explanation, and I believe that the logic of action requires a notion of branching time. I have two pictures of the universe; which of the two pictures I may rely upon will depend upon just what it is that I intend to do. Between the problem that preoccupies me, punishment, and my day-to-day choices, there is a wide gap. There are a lot of choices that, on the axis of justification, fall in between the two, many of them choices about how to treat those around us: whether to snub a friend who has insulted me, whether to castigate her, whether to reward a kind act with praise. Where to draw the line is a topic for another paper. The only principle that right now seems to me firm enough to act upon is this: the greater the likelihood of doing harm, the less likely the choice is to be justified.

Five purposive relations are investigated: endeavoring, endeavoring for a certain purpose, bringing something about in a certain endeavor, bringing something about for a certain purpose, and bringing something about intentionally. No satisfactory analysis of these terms has yet been proposed, either in mentalistic -- belief, desire, intending -- or in action terms. While bringing something about for a certain purpose may seem too obscure to be taken as a primitive, there are at least two arguments in favor of it. First, no analyses in terms of other primitives has worked; second, the rather natural definitions of the other notions which it makes possible take us some way toward understanding the structure of intentional action.

Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system in which the notion of reasonableness is based on efficiency, I argue, is a system that redistributes wealth from the less well off to those better off. I consider alternative notions of reasonableness, ending up with a principle of proportional responsibility and distinguishing between commercial and non-commercial cases.