Free will

There is a kind of villain who blames neither their childhood, nor society, nor their brain. They look at the camera and say: I chose it. That figure —the one who decides to be evil and owns it— embodies the oldest and most radical idea in criminology: that crime is an act of free will and that, precisely for that reason, we can hold them to account.

// OriginBeccaria and the Enlightenment

In 1764, a young Milanese aristocrat, Cesare Beccaria, published On Crimes and Punishments: a short pamphlet that refounded criminal law. Against the justice of the Ancien Régime —arbitrary, secret, upheld by torture— Beccaria starts from an Enlightenment premise: the human being is free and rational, and offends because they choose to. If crime is a decision, the law must not take revenge: it must deter.

Hence his programme, revolutionary for its time: that penalties be set by law and not by the whim of the judge, that they be proportionate to the harm, equal for all and public. Beccaria was also among the first to demand the abolition of torture and the death penalty: an atrocious punishment does not deter more, it only brutalises. Drawing on the social contract, he holds that the State may punish only what is just to protect the pact, not an inch more.

// In fictionThe villain who chooses to be one

If a theory celebrates the freedom to choose evil, its best ambassadors are the villains who proclaim it. Gloucester opens his play announcing that, since he cannot be a lover, he "is determined to prove a villain": he chooses the role and signs it. Iago destroys Othello almost for the pleasure of it, without a motive that determines him —what critics called "motiveless malignity"—. And Milton’s Satan distils free will in its purest form: "better to reign in hell than serve in heaven".

Against them, Voldemort illustrates the other side of the argument: he had a terrible childhood, yes, but the saga insists that he chose —"it is our choices that show what we truly are", Dumbledore reminds him—. And Frank turns that idea into a method: there is no chance and no destiny, only what one decides to do and to show.

RI

Richard III · Literature

Ricardo III

YA

Othello · Literature

Yago

SA

Paradise Lost · Literature

Satan

TR

Harry Potter · Film

Tom Riddle

FU

House of Cards · Series

Frank Underwood

Villains who are not products of their environment: they choose evil and sign it. Tap to meet them.

// Does it really deter?Certainty beats severity

Beccaria’s great empirical bet —that the certainty of punishment deters more than its severity— has held up remarkably well against the data. Decades of research (Nagin) confirm that raising the probability of being caught reduces crime, while toughening penalties has barely any effect: almost no one steals less because a sentence goes from ten to fifteen years, but they do because they believe they will be caught. That is why visible policing and swift justice prevent more than exemplary sentences, and why the populism of the "iron fist" tends to fail: it punishes hard the few who fall, without touching the calculation of the many who trust they will not be caught. Beccaria wrote it in 1764; criminology keeps confirming it.

// CriticismsThe shadow of determinism

Barely a century later, the positivism of Cesare Lombroso and Enrico Ferri turns the idea on its head: the criminal does not choose, they are determined by their biology, their psyche or their environment. Thus is born the debate that criminology still has not closed —free will versus determinism—.

The objection is serious. Is the choice of someone who grows up in poverty, drags an addiction or suffers a severe disorder really "free"? Neuroscience adds fuel: experiments like those of Benjamin Libet suggest that the brain initiates the action before we are conscious of "deciding". The classical school responded by refining: neoclassicism admitted mitigating factors —age, insanity, coercion reduce responsibility—, accepting that we are not all equally free.

// CompatibilismFree “enough”

And what if neuroscience ended up proving that no one truly chooses? Philosophy offers a way out of the dead end: compatibilism. Against hard determinism (no one is free, so no one is guilty) and libertarianism (we are absolutely free), thinkers like Daniel Dennett hold that the freedom that matters is not being exempt from causes —impossible— but being able to reason, deliberate and respond to reasons. Whoever is capable of understanding a rule and adjusting their conduct to it is free enough to answer for their acts, even if their brain obeys physics. It is, at bottom, what criminal law does: it does not demand an uncaused soul, it merely distinguishes those who could be guided by the law from those who could not —the child, the insane, the coerced. Responsibility rests not on a metaphysical miracle, but on a practical capacity.

// Why it mattersThe basis of responsibility

Two and a half centuries on, free will remains the foundation of all criminal law. Without freedom there is no guilt: one can only reproach —and punish— someone who could have acted otherwise. From that assumption arise the responsibility, the legality ("no penalty without a prior law") and the proportionality we now take for granted.

That is why the debate returns with force in the 21st century: if neuroscience came to prove that no one really chooses, would it make sense to blame anyone? That is the uncomfortable question of neurolaw. Until there is an answer, we keep treating the offender as Beccaria demanded: as someone free and, therefore, responsible for what they sign.