Rethinking Criminal Law: Responsibility Revised
I argue that (criminal) law systems are justifiable regardless of moral responsibility, that is even if (a) there is no moral responsibility (as skeptics have it) or (b) there are overwhelming difficulties in ascribing it (as neuroscientific techniques seem to indicate). To prove my point, I consider current legal systems. They fail to appreciate the distinction between moral and legal responsibility, and how responsibility differs from liability. Building on conceptual and empirical grounds, I argue that not only (i) legal liability should not depend on moral considerations, but also that (ii) the broader idea of responsibility should be excluded from legal systems. Weighing available evidence, I show that the idea of responsibility is utterly problematic in legal contexts, even though it is central to our current notion of law. I argue that its polysemy generates conceptual confusion, that it is questionable on deterministic grounds that are more and more endorsed by the scientific community and that its ascertainment through certain neuroscientific techniques can be both logically fallacious and factually doubtful. In the final section, I therefore propose to consider legal systems as groups of constitutive rules that should be strictly enforced without regard to moral considerations. I draw an analogy between the legal system and games such as chess and fencing, and show how this proposal can be theoretically justified beside its practical advantages. The main aim of this paper is to show how skepticism towards (moral) responsibility does not undermine the basis of legal systems. Nonetheless this proposal is intended as a contribution to the broader debate on the role and understanding of our legal systems in relation to scientific and philosophical developments.