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ON FREE WILL

17/10/2017

 
Vol 12, Issue 12

SCOTT DRAPER

Personal Responsibility and the Criminal Justice System

You are sun-baking on the University Square grass, enjoying the warm breeze of a spring day. Suddenly, you notice a fully-grown grizzly bear a mere three feet away. It sinks its teeth into your ankle and tears off your foot.
​

Consider this change. Instead of a bear, a man with a machete strolls onto the grass. As you try to determine which snapchat filter will best convey the chilled life of studying law, he hacks off your foot.

​
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What is the difference here? The outcome is the same, but something seems to have changed in relation to each attackers’ responsibility.

Bears are bears, you might say. They don’t know what they are doing, and can only be expected to act as an animal would. Humans are different. They are complex creatures, endowed with reason and awareness of the consequences of their actions. Humans who have made bad decisions had the freedom to make different ones. As such, they are blameworthy.

This appears to align with the intuitions of most people. But in a scientific sense, this view of free will is mistaken. We spend much of our time – of our lives – regretting actions of the past, blaming others and ourselves for various failings. We think it is justifiable to hate others for their harmful conduct, and think criminals need not only be detained for public safety, but are also deserving of punishment. What I wish to encourage, dear reader, is a view of personal responsibility which may challenge the basis of this intuition. The premise is this: the feeling that we are the conscious author of our thoughts and actions is an illusion.

The logic is as follows. The brain is a physical system, constrained by the laws of nature. All thoughts and actions which originate in the brain are therefore subject to a chain of cause and effect, extending endlessly into the past. The claim that someone should have “decided differently” is to suggest that they alter their own neurophysiology. But the man’s decision to chop off your foot was a part of this brain chemistry, itself a consequence of a lifetime of brain events, genetic and external influences. Where is the freedom here?

This may seem too easy, as if to exonerate all conduct because it is chemical. But in some sense, this is all you need. Here’s an experiment. Pick a number between 1 and 100. Concentrate on your mental processes as you choose.

Notice that this is the freest choice you will ever have – if free will is not here, it’s nowhere. Question: did you decide which numbers would appear in your mind? Obviously not; they just popped into your head. Were you free to choose something which never occurred to you? You couldn’t be.

Perhaps you converged on two numbers. You were thinking of 19, but then you remembered that 7 is your favourite number, so you picked that. You might think this is where free will makes its entrance. But ask yourself, did you author the thought that directed you to 7? That also just appeared in your mind. Why didn’t it, for example, have the opposite effect of making you want to choose a number different from your favourite? At bottom, you can’t explain it.

If you pay close attention, you will notice that you are not really controlling anything – you are simply witnessing the internal monologue of your own mind. The crux is this: if you are confused about my argument so far, you didn’t create that sense of confusion. Equally, if you understand, you are not responsible for understanding.
 

How can we view and respond to criminal behaviour in light of this? Criminals are, in some sense, victims of their own circumstances. They had the wrong parents, the wrong genes, the wrong brain, or some combination of factors. It appears strange to say, but ultimately one is unlucky to have the mind of a murderer.

This is not to say that autonomy is irrelevant or impossible. There is a difference between committing an act in alignment with your own intentions, and doing it with a gun to your head. But the difference is one which explains what kind of person you are – what you are likely to do in the future – not that you are responsible for being that person.

Neither am I claiming that all criminal actions are the result of mental illness. This defence simply recognises that conduct can be explained with reference to an isolated factor for which the person is not responsible. But in reality, we could say ‘this person would never have committed this act if not for the having their brain, their genes, their friends, a lifetime of particular external stimuli,’ etc. Our attribution of responsibility is a failure to trace back the thousands of individual factors leading to this decision, none for which the person in question could be held responsible. And a complete understanding of the person’s neurophysiology would be as exculpatory as discovering mental illness. In fact, our growing understanding of mental illness – from treating autism as a spectrum, to Forgotten Baby Syndrome – indicates this expansion of deterministic thought in medicine and law.

But despite the clear role of luck, the desire to live in a peaceful society requires that we protect human life and other interests. Criminals are public health concerns, and so it is justified that they are detained and removed from the public when their conduct signals an intent to commit further criminal acts.

This is not, of course, the position of our legal system. Public safety and deterrence are important factors, but punitive and retributive measures are regularly imposed on the basis of deserved punishment. Much of criminal, tort, and other law rests on an (arguably false) assumption that people could (and should) have acted differently in the past.

Compassionate law reform requires us to be more than empathetic. We must recognise that if we were in the shoes of another – thinking their thoughts, living their life – we would act exactly as they had. There is no room for the freedom we cling to which credits us with our own genius, or devastates us for our failings. Treating criminals as intelligent grizzly bears allows us to focus on pragmatic solutions to human violence, rather than seething over the evil we imagine people invent within themselves.

Scott Draper is a second-year JD student

More articles like this:
  • ​Prosecute or Punish

The rest of this issue (:O)
  • Riley Announces Presidential Run
  • Choose Your Story
  • So Long and Thanks for All the Fish
  • The Oxford Mythology and MLS Assessment​
  • You Can Commit to Justice in Your Career
  • Chatting is Bullshit
  • Lockheed Martin: Research and Warfare
L of A
17/10/2017 12:31:26 am

I don't think anyone can claim with certainty that free will does not exist and we are all slaves to fate. As such I'd be careful about constructing the criminal justice system on that assumption.

But even if you think this is true, punitive sentencing still acts as a deterrent, as it becomes part of all that external stimuli that leads a person to act one way or another and a person will be less likely to take a certain action when they see it carries a penalty, than they would be if they see it carries no penalty. Whether that is a real choice made with free will or not is pretty irrelevant.

In fact that's how I have always viewed punitive measures; as a deterrent, not for some sort of self satisfied moral vindication.

Anonymous
17/10/2017 03:45:54 pm

Hi L of A :)
The distinction isn’t between free will existing and us simply being “slaves to fate”. Fate is a concept that often gets confused in this debate and is drafted in where inappropriate.
However, even if we are not currently /certain/ there is no free will, the onus has to be on somebody positing it exists to explain how it could exist. As Scott has so wonderfully articulated neither science nor our own intuitions (once we contemplate for a moment) support the existence of free will. Where could it come from?
Not quite sure how your discussion of punitive punishment enforcing the deterrent effect isn’t simply reinforcing Scott’s argument. Deterrence is all that matters. If we dress that up in the language of punitive punishment on a pragmatic basis, fine (as long as we’re making that choice “consciously” ;) )
Great stuff Scott. Probably the most important thing in de Minimis this year. This fundamental pillar of the legal profession is taken for granted by almost everybody. In coming decades it will (fingers crossed) be challenged, and we should prepare for that eventuality.

Scott
17/10/2017 07:56:58 pm

@L of A

As Anonymous said, I agree with your arguments about punitive sentencing. To the extent that extra sentences are imposed for deterrent effect, this appears to be justifiable, even moral. But I imagine that many people do see punitive measures as justified outside of deterrence, e.g. for moral vindication.

I also agree/encourage not to confuse determinism with fatalism. My argument is not "the future is fixed no matter what you do", but rather, "what you have done was what you were always going to do." While free will is incoherent, outcomes and therefore actions are incredibly important.

And I also agree that while we 'don't know anything for certain', I've never heard of a plausible mechanism by which free will could theoretically operate, even if you postulate a mind/soul separate from the body.

Respondant
17/10/2017 09:11:15 pm

I think therefore I am!

Clare van Balen
18/10/2017 10:46:13 am

This is a really enjoyable article!

You're right to be concerned by the criminal law's obsession with responsibility and how this justifies punitive policy. But my worry is by tackling that, we can lose sight of the equally troubling risks of medicalised responses to crime. A medico-health-based analysis of criminal behaviour that draws on hard science is but one criminological lens, and if prioritised over others can lead to pseudosciences like phrenology. In the end, we will probably never be able to establish causality when it comes to human behaviour. And even if we could and perfected our criminal justice system around a proven understanding of 'the why', would that be desirable?

Likewise, I feel that focusing so heavily on pathways to criminality forecloses any critical discussion about how the criminal law is designed and maintained for some and against others. Just a thought.

Scott
18/10/2017 10:38:04 pm

Thanks Clare, I see your point. But I'd say that's tangential to what I'm arguing. My point is merely that there are causative factors leading to crime, not that we should try to investigate all of them. Certainly, where we can isolate them (mental health, substance or physical abuse) it is helpful knowing their consequences because we can reduce crime by preventing them. But no, I don't think it's necessary to know them in order to recognise that people did not create their own brains.
As for biases in the criminal justice system, that is certainly a worthwhile (although separate) topic, one which I didn't go into here.


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