Natural Selection, Deterrence, and Mental Defect
Differences between Darwinian and marginalist approaches to human nature were strongly reflected in theories about the social control of undesirable behavior. For evolutionists, human actions were genetically determined. Concepts such as “free will” or “preference” were nothing more than meaningless rationalizations of instinct. Little could be done to eliminate innate deficiencies in the individual, and the best treatment for crime or other undesirable behavior was sterilization or sexual isolation in order to prevent reproduction. By contrast, marginalists saw control of deviance as a problem in metering sanctions to currently living individuals. Although Holmes has widely been described as Darwinian, marginalism provides a much better fit for most of his thought. What eventually emerged in the law of crime and deviancy was a pragmatic theory of human nature that blended hereditary and marginalist elements of social control.
social control, deviance, Holmes, sterilization, Darwin, free will
The Opening of American Law: Neoclassical Legal Thought, 1870-1970
Hovenkamp, Herbert, "Natural Selection, Deterrence, and Mental Defect" (2014). Book Chapters. 53.