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LAW AND FREE WILL

I Yordan Nugraha
The demise of free will and its profound influence on legal systems

Contents
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I. II. III. IV. V.

Reflection Examining Free Will Influence on Law Problems & Solutions Conclusion

TO REFLECT

The Case of Afriyani Susanti

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The Case of Afriyani Susanti

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9 people died, 4 injured

EXAMINING THE NOTION OF FREE WILL

Free Will
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The belief that humans are free and conscious in making choices and decisions

Free Will
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Seems self-evident
You say: I am not free. But I have raised and lowered my arm. Everyone understands that this illogical answer is an irrefutable proof of freedom.

Leo Tolstoy

Antithesis of Free Will: Determinism

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Everything is determined by causal relation of laws of nature, and therefore humans thoughts and decisions are determined by output.

This output

Outside this being

Determinis m
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If the output is slightly changed

Thoughts and decisions will change radically. Humans are constrained by outputs.

Demise of Free Will

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Functional magnetic resonance imaging shows that two brain regions contain information about which button to press 7 to 10 seconds before one was conscious of it.

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INFLUENCE ON LEGAL SYSTEM

Mens Rea
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The person who with deliberate intent takes the life of another person shall, being guilty of manslaughter, be punished by a maximum imprisonment of fifteen years.

Article 338 of Indonesian Penal Code

Mental Defect
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A person is mentally incompetent to commit an offence Article 269C of Criminal Law Consolidation Act 1935 South Australia

Private Law
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A contract is concluded, without any further requirement, if the parties: (a) intend to enter into a binding legal relationship or bring about some other legal effect. Article II 4:101DCFR

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Incompatibility
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With the demise of the concept of free will, legal systems are

Recidivism
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Data by The United Kingdom Ministry of Justice Statistics Bulletin 2011

Data by The United States Bureau of Justice Statistics

Compatibilist approach
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Even though the cause of thoughts and actions are triggered from outside, it is still our conscious thoughts and actions.

Daniel Dennett

Compatibilist approach
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Since we are conscious of it, we are capable of differentiating intentional and non-intentional acts.

Thus the principle of party autonomy can still be embraced.

However
Problem from utilitarian perspective recidivism

Hypothesis for a whole new approach

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The concept of strict liability in tort law can be applied to replace party autonomy.
This is true in principle.

However Problem legal systems must be reformulated!

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CONCLUSION

Conclusion
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The notion of free will is obsolete.

As legal systems are fundamentally grounded on party autonomy, these systems also become obsolete.

Solution: stay with the same system and justify it with compatibilist approach or reformulate law with strict liability.

References
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Asworth, Andrew, Principles of Criminal Law (2009) Dennett, Daniel, Brainstorms: Philosophical Essays on Mind and Psychology (MIT Press 1981) Harris, Sam, Free Will (Free Press 2012) Harris, Sam, The Moral Landscape (Free Press 2010) Kotz, Hein, European Contract Law (1998)

Thank you for your attention

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Questions and falsifications are expected