The Implications of Free Will Skepticism for Establishing Criminal Liability

This chapter discusses the implications of rejecting the notions of free will and retribution for the process of establishing criminal liability in a trial. It is a general principle of UK and American law that before a person can be convicted of a crime the prosecution must prove three things. Firstly, the accused must have performed the actus reus (the prohibited act). Secondly (with the exception of strict liability offences), the prosecution must prove mens rea, a mental state such as intention or recklessness. Thirdly, the accused must lack a valid defense, such as self-defense. This chapter argues that these prerequisites should be retained. It offers a rationale for these prerequisites that appeals to the value of liberty and moral communication but does not depend on the concepts of free will and retribution. This chapter then focuses on two defenses: self-defense and provocation. It argues that without these two concepts, the “right” to self-defense cannot be understood as a strong justification. Rather, self-defense involves permissible action. This chapter also argues that, without the concepts of free will and retribution, the partial defense of provocation cannot be based on the idea of justified anger but rather on understandable emotional distress.