Free Will Skepticism, the Justification of Punishment, and the Strong and Weak Innocence Intuitions

José Xarez

The Mind, Language and Action Group (MLAG), a research unit of the Institute of Philosophy at the University of Porto, invites you to the sixth talk of the new MLAG Seminar Series featuring presentations by international researchers on topics of interest to the group. The talk, given by José Xarez (University of Porto) and entitled "Free Will Skepticism, the Justification of Punishment, and the Strong and Weak Innocence Intuitions", will take place on April 23, 13:30-15:00 Western European Summer Time (WEST). The meeting is in hybrid format. Physical address: University of Porto, Faculty of Letters, Institute of Philosophy, Via Panorâmica, s/n, 4150-564 Porto, Portugal, room 310. MS TEAMS details: Meeting ID: 354 965 928 297 212; Password: Qu6UA3Jk.

The seminar is jointly organized by Sofia Miguens (MLAG-IF), Dan Zeman (MLAG-IF), James Grayot (MLAG-IF), Rafael Antunes Padilha (MLAG-IF|IFCH-UNICAMP), Samuel Lima (FLUP) and João Carlos Rocha Lima (FLUP). Information about MLAG can be found here: https://ifilosofia.up.pt/research-groups/mlag. To contact the organisers, please send an email to [email protected].

All welcome!

ABSTRACT:

In this paper, I argue that Free Will Skepticism (FWS) plays a substantive role in debates about the justification of punishment. While it is widely accepted that FWS undermines action-based desert, recent work by free-will skeptics has attempted to develop non-retributivist theories of punishment grounded in revisionist accounts of moral responsibility. These accounts reject the claim that offenders are truly deserving of punishment, since their actions ultimately result from factors beyond their control. However, such views face a persistent challenge: accommodating the “Innocence Intuition,” according to which, ceteris paribus, punishing a guilty person is morally preferable to punishing an innocent person, even when the consequences are identical.

Free-will skeptics, therefore, confront a dilemma: either reject this intuition or vindicate it without appealing to desert. Most have pursued the latter strategy, but with limited success. At the same time, independent arguments against actionbased desert, such as burden-of-proof considerations and concerns about the state’s standing to blame, have generated non-retributive theories that sometimes appear better equipped to account for the Innocence Intuition. This might suggest that FWS adds little to the punishment debate beyond reinforcing already available anti-retributivist arguments.

I resist this conclusion by distinguishing between a Strong and a Weak version of the Innocence Intuition. The Strong Innocence Intuition combines (i) an axiological claim that punishing the guilty is better than punishing the innocent, and (ii) a deontological claim that we have a stronger duty to punish the guilty rather than the innocent. The Weak Innocence Intuition affirms only the deontological claim. I argue that FWS is incompatible with the Strong Innocence Intuition but consistent with the Weak version. Crucially, non-retributive theories can accommodate the Weak Intuition without appealing to desert. The upshot is that FWS does make a distinctive contribution to the debate: it pressures us to abandon the axiological component of the Innocence Intuition. Far from being a liability, I argue that rejecting the Strong Innocence Intuition ultimately strengthens non-retributive theories of punishment.