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Thursday, November 20, 2014

The Law's Position on Free Will

Will advances in neuroscience radically transform criminal law? Stephen Morse believes they won't. To the extent neuroscience merely gives us a fuller picture of brain mechanisms, he argues, it ought not affect the law because the law does not require us to be the ultimate physical cause of our behavior. Provided we have no excusing condition like insanity, the law deems us responsible for our actions because, Morse writes, “the law’s official position” is “that conscious, intentional, rational, and uncompelled agents may properly be held responsible.”

Morse defends a compatibilist view of free will. He believes that even if all of our actions are caused by our brains which in turn were caused by states of the universe before we were born, we can still be morally responsible for our actions. And some of Morse's writing imply the view that the law itself takes a compatibilist stance toward free will.

While the law is generally consistent with compatibilism, I argue that the law is also consistent with another view about free will that we can call soul-based libertarianism. On this view, we can be morally responsible for our actions provided that they emanate from non-physical souls. In other words, the law may treat our choices as somehow special, occurring outside the boundaries of the natural world. Indeed, the law was crafted over centuries with contributions from thousands of people. For a long portion of that history, lawmakers likely held some version of a libertarian view about free will. 

The Supreme Court of Michigan may have reflected a libertarian worldview in the nineteenth-century case of Maher v. People. The court sought to determine which provocative circumstances, like adultery, should mitigate what would otherwise be murder to a less severe conviction for manslaughter. The court said that the circumstances need only have the natural tendency to create a heated emotional state because it need not be “such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable.” In other words, if a person’s behavior is caused in the way that one physical entity causes another physical effect, then he cannot be held morally or legally accountable at all. While the statement in Maher could perhaps be given a compatibilist interpretation, at least taken literally, it seems to deny responsibility for mechanistic actions that follow with certainty from physical effects.

One case hardly generalizes to the entire corpus of law. Still, the criminal law was largely devised by people who held libertarian views like those in Maher. When, if ever, did the law change its position? Some empirical evidence, though it is controversial, suggests that most people naturally hold libertarian views, even today. Here is the key point: Questions about free will go back centuries. But whatever your view about free will, the law may have its own view. To the extent we're unlikely to resolve questions about free will to everyone's satisfaction, the law's default position takes on increasing importance. While I hardly think the law takes a clear stance on the issue, to the extent that purposive analysis is appropriate, the law may well be vested with soul-based libertarian inclinations.

Lastly, to a much greater degree than compatibilism, soul-based libertarianism actually is threatened as neuroscience becomes more powerful and comprehensive. The better neuroscience becomes, and, as Greene and Cohen suggest, the easier it is for us to visualize neuroscientific mechanisms, the less we will be inclined to rely on souls to understand human behavior. Consider a judge who believes that all people act because of first-moving decisions they make in their souls. Such a judge may start to question whether someone really has “intent” to kill when the judge subsequently comes to understand intentions in mechanistic terms. Thus, if the law has soul-based libertarian roots, it is indeed vulnerable to advances in neuroscience (and other sciences) that continually remind us that we are mechanistic cogs in the universe.

(This post is adapted from the recently published article, Will There Be a Neurolaw Revolution?.)

Posted by Adam Kolber on November 20, 2014 at 09:09 AM | Permalink


This is an old debate dressed up in slightly different clothes. I am reminded of the dusty joke, apocryphally used by John Dewey to demonstrate the lack of real overlap between accepting physical/scientific determinism and any need to disclaim the moral authority of the law to punish people for their actions, about the murderer who pleaded physical determinism:

"I admit that I killed him," the man argued, "but, your Honor, you are a man of science. You know that the universe follows set causal laws, each subsequent action determined by the very first atom crashing into the very second atom. As result, every action of my life has been determined from the moment of the creation of the universe. I, therefore, did not choose to commit the crime and you cannot hold me accountable for its commission."

"Alas," the judge replied, "I am a man of science and know that the universe follows set causal laws. And, thus, I have been determined from the very moment of the first atom crashing into the second atom to hold you accountable for your actions and condemn you to hang in the morning."

Posted by: Former Editor | Nov 20, 2014 10:25:02 AM

It's true that if we're not morally responsible for committing crimes, then we're not morally responsible for punishing people for those crimes. But we still want to live in a world where we do good things. To the extent we are so driven, we do, in fact, examine our practices to see if they make sense given our best understanding of the universe. So I don't take the joke to eliminate our interests in making our punishment practices as good as they can be. But it is also true that the very nature of what it means to choose or deliberate feels a bit unfamiliar in a world where our choices are causally determined.

More generally, the question of free will is indeed part of an old and very important debate. The topic of my paper--the law's stance toward free will as people's opinions potentially change in the light of advances in neuroscience--is far more recent. Whatever your substantive views about free will, the law's take on the issue need not be the same.

Posted by: Adam Kolber | Nov 20, 2014 10:51:28 AM

"[Morse] believes that even if all of our actions are caused by our brains..."

From both reading his work, and talking with him quite a bit about free will, I think this is a slight but importantly misleading way of putting Morse's position. I think he'd not be happy with the idea of our behavior being "caused by our brains" in most cases(*), because he (rightly!) thinks that our minds just are our brains working in certain ways and in certain environments. So, there's no important difference, in most cases, in saying that behavior is "caused by our brains" and that it's "caused by our minds". The way it's put in the post makes it sound like our brains are _something other_ than our minds, but I'm pretty sure that Morse rejects that idea. (He's not in any way at all sympathetic to any sort of dualism.) (There are, of course, subtle difference is possible positions here, but not that matter for a blog comment.)

(*) The way in which is might make sense to say that my behavior was "caused by my brain" would be when my brain is malfunctioning in some way. I was trying to do X, but because of some brain lesion, say, I wasn't able to do so, or did Y. But in these cases, we'd be drawing attention to the fact that the brain wasn't working in the normal way.

Posted by: Matt | Nov 20, 2014 1:17:23 PM

Thanks, Matt! I think Stephen would be quite fine with the notion that our behavior is caused by our brains (plus the more general whorling of particles in the universe). What makes him a compatibilist is that he thinks such motion of molecules in the universe can be consistent with moral responsibility. It's true that he would not say we are responsible for all behavior caused by our brains. It has to be mediated through certain rational faculties. That's why after the language you quote, I wrote that we *can* be morally responsible for behavior caused by our brains, not that we necessarily are. Morse would add additional conditions (e.g., absence of insanity, infancy, etc.).

I'm not sure what's misleading, though, as I never assert that Morse believes that we are responsible for all actions caused by our brains nor that he regularly attempts to explain behavior in neuroscientific terms. But I'll surely grant that my short discussion of his work in this post is far from detailed and comprehensive.

Posted by: Adam Kolber | Nov 20, 2014 2:00:40 PM

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