Neurobiology and Free Will in Criminal Law

Abstract

The paper deals with the problem of the relationship between free will and guilt of a person through the prism of recent research in neuroscience. The key aspects of understanding guilt in criminal law and its relationship with free will are identified. Deterministic and indeterministic approaches to the definition of the essence of free will in the doctrine of foreign criminal law are revealed. The purpose of the study is to determine the essence and meaning of free will in understanding the institution of guilt and to correlate free will with the basis of criminal liability. The author applied traditional methods of socio-legal and formal dogmatic analysis: documentary, comparative legal, analytical, systemic, and logical. Based on the results of the study, it is proposed to preserve the existing concept of free will and indeterminism as the basis for criminal liability. It is proposed to distinguish between the concepts of «free will» and «freedom of action». The author believes that the denial of free will eliminates the criminal law itself and the principle of fault-based individual responsibility principle. Criminal liability cannot exist without fault and should include only the principles of prevention and proportionality, where the center of gravity is shifted towards preventive measures. In such a plane, when ascertaining a crime, not only the actions committed by the person, but also the actions expected from him are taken into account. The proposed paradigm fundamentally changes the criminal law itself, which will be based on the principle of objective rather than subjective imputation.