Diachronic Capacitarian Compatibilism: on responsibility, capacity, and fairness

This is the abstract for a talk I will deliver on April 5-6, 2018 at the Conference on “Law, Science and Rationality”, in the Faculty of Law, Maastricht University, Maastricht, The Netherlands.

Imagine two people, Capacitous and Subcapacitous, who commit identical criminal offences under effectively identical circumstances. However, while Capacitous satisfies the mental capacity requirements for full responsibility, whatever they are, Subcapacitous does not. All else being equal, compatibilists about responsibility would view Capacitous as more blameworthy for their offence than Subcapacitous, and if retributive punishment was on the table then Capacitous would also be punished more severely than Subcapacitous.

Why is that, though? After all, in a deterministic universe, holding all factors fixed, on any given occasion there is only one way that anybody will behave — namely, precisely how they do behave. On any given occasion, capacitous offenders can no more behave differently to how they actually behaved than subcapacitous offenders, and so in this way both are equally victims of neuronal and environmental circumstances. Why then do compatibilists think that people’s psychology – their mental capacities, abilities, or makeup – makes a difference to whether responsibility, blame, and punishment are ever justified?

I will argue that to see why psychology matters, our gaze must expand to take in diachronic factors (how psychology affects people’s lives over spans of time) rather than remaining narrowly focussed on synchronic factors (how particular psychologies function on given occasions). When diachronic factors are considered, it is way easier to notice that subcapacitous people would be significantly disadvantaged if they were treated no different to capacitous people. We treat capacitous and subcapacitous people differently in order to treat them equally, not because on any given occasion when both commit criminal offences one had greater freedom than the other.

On my compatibilist account, determinism presents a distinctly legal, political, and practical challenge — to develop a system of responsibility that is fair, where fairness is a matter of treating people equally. On particular occasions when criminal offences are committed, capacitous offenders’ greater mental capacities evidently do not afford them an advantage over subcapacitous offenders, but over time they do, and this is why to treat capacitous and subcapacitous people fairly we must treat them differently. Once we construct a system of responsibility that is fair, whether specific instances of differential treatment of individual people on given occasions are justified, becomes a matter of whether such treatment implements the requirements of that just responsibility system.

In addition to providing a novel compatibilist approach to responsibility, blame, and punishment – one that explains why psychology matters, framed in distinctly legal or political terms – my account also provides a helpful way of thinking about how neuroscience (and other mind sciences) can assist in adjudications of responsibility. An account which won’t collapse under the strain of mounting evidence that, in a metaphysical sense, we are indeed all victims of neuronal and contextual factors.