How much free will do we want?

On neuroscientific challenges to criminal responsibility

26-9-2012MLP²Dr. David Roef

The wise old man and the scorpion

A wise man was walking along the river with his disciple, when suddenly he noticed a drowning scorpion…..

The wise old man and the scorpion

• How free was the old man to rescue the scorpion? Did he really have an alternative choice? Free will vs nature?

• Did the old man rescue the scorpion or was it his brain?

• Why do we praise/blame the old man and not the scorpion?

• Why do we approach the man as a moral agent and responsible being?

I. Relevance of neuroscience to criminal lawII. The attack on free will : two problems

a. problem of causal determinismb. problem of conscious will and legal agency

(disappearing person, subjecticide)

III. Criminal law’s view on free will and responsibility- what is necessary for responsibility?- scientific perspective vs legal perspective

IV. Problem of conscious will and legal agency- we don’t blame brains, but persons

On neuroscientific challenges to criminal responsibility

I. Relevance of neuroscience to criminal law• Internal relevance/challenge:

- we accept the general coherence and legitimacy of current legal doctrines and practices - but allow doctrinal reform within the system, e.g. insanity defence, neuro-evidence, use of deep brain stimulation

- translation problem from science to law

• External relevance/challenge:- basic concepts and legitimacy of the system are challenged: free will + responsibility debate

Dutch examples of internal relevance• 2000-2010 cases: neuro info used to answer queeries about

- intent (12)- negligence (6)- premeditation (2)- accountability/insanity defence (43)

- Neurological assesment epileptic driver (Alkmaar 2010: LJN BN7251)

- No premeditation due to frontal syndrome (Den Bosch 2007: LJN BB2861)

- Diminished responsibility sexual assault minors – frontal dementia (Alkmaar 2008: LJN BK5962)

- Sleep walking attempt to manslaughter ( Zutphen 2007: LJN BB7529)

II. Neuroscientific attack on free will

Two main problems of free will-Problem of causal determinism (neurocalvinism)

- is free will/responsibility possible if determinism is true?

= the old compatibilism question

-Problem of mental causation and agency- am ‘I’ the source and cause of my actions- do my conscious intentions cause my actions = the new neuroscientific challenge

(Libet, Wegner, Lamme, Swaab)

A. The problem of causal determinism

• Which ‘free will’ is under attack?• Libertarian view on free will= causal control• The capacity to choose otherwise without any internal

and external factors or circumstances• Two main conditions for such a free will

a. principle of alternative possibilitiesthere must be something to choose determinismb. ultimate source principle ‘I’ am the uncaused cause of my choice causalism

The (old) problem of causal determinism

• Benedictus de Spinoza (1632-1677)

• Arthur Schopenhauer (1788-1860)

“We think we have a free will because we are aware of making choices, but we are not aware of the causes behind our choices”

free will is an illusion of our self-consiousness

“I can indeed do what I wil, but can I will something else than what I will?”

Is my will free?

BUT is this THE neuroscientific challenge? • Science cannot really proof causal determinism• Science cannot proof free will as it works already

within a deterministic and mechanistic (time-space-causality) paradigm

• Indeterminism (quantum mechanics) is not a relevant alternative to save libertarian free will

• Experiments (Libet) don’t say anything about determinism, but confirm causalism: my intentions are not the direct source of my actions, but are preceded by neurological processes

B. Problem of conscious will/agency Neuroscientific challenge is not about determinism but more about

- mental causation and agency- the illusion of conscious will = do my conscious intentions really ‘cause’ my actions, or are they post-hoc rationalizations?

“Conscious will … is an indication that we think we have caused an action, not a revelation of the causal sequence by which the action was produced” (Wegner)

III Criminal law, free will and responsibility

• Is criminal law based upon libertarian free will?• NO: such a free will is even conceptually difficult to

imagine: how can we be an unmoved mover? • Law is normative functionalism and based upon reason-

responsiveness: being guided by reasons• causal control vs capacity control (Dworkin)• Causal control = empirical, objective view • Capacity control = normative, intersubjective view• Relevant are mental capacities (rationality) and not

metaphysical free will (compatibilism)

Psycholegal error: why causes don’t excuse• Each time we discover a cause for behavior, we may

wrongly conclude that the agent is not responsible for the behavior

• But if causation were an excuse, no one could ever be held responsible for any behavior

• The ‘truth’ of causal determinism is not an excusing condition...so, what is? the lack of mental capacities required for moral agency...and this is a normative issueNeuroscientific causal explanation does not per se excuse, but may provide evidence for it

IV. Problem of conscious will/ agency• Can we reconcile responsibility with the claim that my

conscious intentions are not the cause of my actions?• Short term or long term intentions? • Some conceptual/philosophical critique (Prof. Slors)

• Isn’t this neuro-claim (implicitly) based upon a neo-Cartesian ‘self’?

• The implicit jump from conscious to free will? 1. I am my consciousness2. My consciousness does not determine what I do3. Hence: I don’t determine what I do (and am not free)

But am I only my conscious self?

Pitfall of neo-Cartesian dualism• Although NS is materialistic, the research is presented

in a dualistic way (mind/brain vs. body)• One starts from a 17th century agency-theory, which is

subsequently empirically denied • In stead of denying free/conscious will, the legitimate

conclusion should have been that the libertarian premise upon which free will is based seems to be wrong.

• Shouldn’t we understand our ‘self’ in a different way• Freedom is not the ability to act indepedently from the

body, but in accordance with one’s goals and values

We are more than our consious self• Cartesian equation of ‘I’ = my conscious self:

Is this really how we look at ourselves? • In daily practice we often take responsibility for situations

where our ‘self’ is not conscious (ex. speaking, playing music, sports, driving car)

• Dynamic feedback between conscious and unconscious processes

• But also: some conscious actions we don’t really consider to be our own (duress, some disorders)

• Is conscious/unconsious a good distinction?

In law we don’t hold brains responsible but persons

• Pitfall of naturalistic reductionism - subjecticide

• In criminal law we attribute responsibility not even to a human being (of flesh and blood) but to an artificial construct of a subject to law

• The freedom in criminal law is a normative, protective, virtual freedom, not an empirical one