Can (Should) Law Do Without Free Will?

Abstract

Recent advances in the field of neuroscience are currently casting doubts on the existence of something like free will. This has raised a controversy between those who think that the obliteration of free will is incompatible with holding people responsible for their actions and those who think the other way round. This paper seeks to overcome the problem by investigating the possibility that law could do without free will. An argument to this effect has been advanced by Hans Kelsen in the second edition of his Pure Theory of Law. This argument is discussed in sections 2-4 of the paper. The conclusion is that Kelsen’s attempt to found law on deterministic grounds does not fit with his legal doctrine, which seems to imply that the answer to the question in the title of this paper is negative. Nevertheless, there is a point in Kelsen’s rejection of free will, which can be vindicated. Section 5 introduces and discusses an argument that, although alien to Kelsen’s thought, seems to better account for his claim that responsibility does not in any way presuppose free will.