Deep thoughts on freedom and liberty for the holiday weekend

These two new pieces appearing on SSRN seem like fitting reading for some deep reflections on freedom and liberty this holiday weekend:

Neoliberal Penality: A Brief Genealogy by Bernard E. Harcourt

Abstract: The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration — the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s — of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century.  It is important, instead, to explore the arc of penality over a longer course: to relate recent developments to their earlier kin at the turn of the twentieth century.

What that larger perspective reveals is that the pattern of confinement and control in the past century has been facilitated by the emergence and gradual dominance of neoliberal penality.  By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state. This essay traces a genealogy of neoliberal penality going back to the emergence and triumph of the idea of natural order in economic thought — back to the Physiocratic writings of François Quesnay and other economists during the 1760s.  It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality.

Free Will Ideology: Experiments, Evolution and Virtue Ethics by John A. Humbach

Abstract: Free will could never have evolved in a world of ordinary biological forces.  There is, moreover, substantial experimental evidence against it.  This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds from the assumption that hurting people is presumptively wrong and therefore requires justification. If this assumption is true, then the factual dubiousness of free will presents a serious problem for current penal practices.  Because the evidence makes free will unlikely and the logic of evolution makes it impossible, an important underpinning of the criminal law appears to fail.  A variant of free will, so-called compatibilism, does not solve or avoid the problem of justification.  It seems on the contrary to be merely a repackaging of an ancient form of virtue-ethics under which people are deemed to deserve to suffer because they are what they are.