Responsibility and Mental Capacity
The thesis of this chapter is that criminal law is a thoroughly folk-psychological enterprise that is completely consistent with the truth of determinism or universal causation. It argues that if determinism or something quite like it is true, as I assume it is, then compatibilism, which is a defensible, plausible view in the metaphysical debate about determinism, free will and responsibility, provides the only secure basis for criminal responsibility. The chapter demonstrates that free will is neither a criminal law criterion nor foundational for responsibility because the distinctions the law draws are consistent with the truth of determinism and moral and political positions we have good reason to endorse. The chapter also addresses external challenges to responsibility and finds them wanting. It concludes that common law compatibilism is normatively desirable because it takes people seriously as moral agents worthy of respect.
free will, determinism, compatibilism, common law, responsibility, desert, retribution, consequentialism, mens rea, affirmative defense
Neuroscience and Legal Responsibility
Morse, Stephen J., "Responsibility and Mental Capacity" (2013). Faculty Scholarship at Penn Carey Law. 2690.