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Determinism, neuroscience and responsibility

Published online by Cambridge University Press:  15 February 2007

James Grant
James Grant*
Affiliation:
Senior Lecturer in Law, University of the Witwatersrand, Johannesburg, South Africa
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Abstract

Fears that new scientific advances on the mind and the brain which establish that behaviour is determined by causes in one’s mind/brain and/or various past and present internal and external environments will undermine the attribution of legal responsibility are misplaced. Taking responsibility to inhere where conduct reflects upon an individual and where, properly understood, the individual could have done otherwise, determinism, operating in the right sort of way, should be embraced as a condition for responsibility.

Information

Type
Research Article
Information
International Journal of Law in Context , Volume 2 , Issue 3 , September 2006, pp. 221 - 231
Copyright
Copyright © Cambridge University Press 2006

Introduction

It is feared that freedom and responsibility are excluded by determinism and the attendant implication that one cannot do otherwise. However, determinism need not be feared,Footnote 1 nor even tolerated, but for some – far worse – it must be embraced. I will argue that determinism, operating in the right sort of way, is required for responsibility. I will address the often automatic assumption, that determinism means necessarily a lack of freedom and, most importantly, for the law, the absence of responsibility. I will also address the equally automatic assumption that one must be able to do otherwise in precisely those circumstances in which one finds oneself, and that determinism supposedly robs us of this. Once it is appreciated that determinism, operating in the right sort of way, is required for responsibility, one may reconcile, indeed welcome, recent neuroscientific findings as revealing the basis for responsibility.

Determinism and indeterminism

The problem of responsibility is intrinsically associated with whether determinism deprives us of freedom and responsibility.Footnote 2 The relevance of the issue of determinism for freedom and responsibility is the question of whether determinism, which operates, to an extent, in the supra-atomic world, as conventional physics and possibly even chaos theoryFootnote 3 describes, also operates within humans – most particularly – whether it operates in the human mind.Footnote 4 Hence, the question arises: if it does, are we deprived of freedom and of responsibility for our conduct.

As noted above, it will be argued in this paper that we are only responsible to the extent to which determinism operates (appropriately) upon and within us. Thus the difficulty here is not whether determinism pervades everything including the human mind since, as mentioned, (appropriate) determinism is required. The difficulty lies in appreciating how fatalism is distinct from determinism and how indeterminism is not an appropriate condition for freedom and responsibility.

Compatibilism and incompatibilism

Arising out of the concern that determinism may deprive us of freedom and responsibility, two schools of thought have considered the implication of determinism and indeterminism for freedom and responsibility. The two schools are divided by whether they take determinism to be incompatible or compatible with freedom and responsibility and are therefore known as incompatibilism and compatibilism. The notion of compatibility here refers to whether determinism can coexist with freedom and responsibility.Footnote 5

Incompatibilism

Incompatibilism takes determinism to be incompatible with freedom and responsibility. This gives rise in turn to two possibilities for incompatibilists:Footnote 6

  1. 1. Hard determinism: that determinism obtains in the human mind so that mental events are determined and excludes freedom and responsibility; that is that determinism is considered to be incompatible with freedom and responsibility.

  2. 2. Libertarianism:Footnote 7 that indeterminism obtains in the human mind so that mental events are not determined and that we are therefore free and responsible.

Since hard determinism would exclude freedom and responsibility and as such cannot provide a basis for the attribution of responsibility for the purposes of the criminal law, the prospect that libertarian indeterminism may provide the necessary basis will be considered first.

Premises

Determinism vs Fatalism

First, as a point of departure, we must be clear to understand the meaning of the threat – determinism – and contrast it with fatalism. Determinism here refers to the idea that the future is dependent upon the present such that, given the present, only one possible future exists. It should be contrasted with fatalism for which the future is guaranteed irrespective of the present.Footnote 8 This is a fundamental point and must be stressed, since determinism is often mistaken as rendering the future, in some way inevitable.Footnote 9 This is to confuse determinism with fatalism.

As noted, while determinism is sensitive to the present, fatalism is not. But the question may be posed that if universal determinism indeed applies, then is it not the case that the end (in a particular condition) is inevitable just as it is guaranteed under fatalism. But this misses a fundamental difference: for determinism the end transpires as a consequence of the past and present, whereas for fatalism it will occur irrespective thereof – irrespective of one’s beliefs, desires and values. To glean the distinction more clearly, it is useful to employ a concept upon which this paper will ultimately turn, the concept of ‘if’. For fatalism the end (in that particular condition) is guaranteed even if the present and/or the past were hypothetically varied; whereas for determinism, that is not so – if the present/past were hypothetically varied, the end mayFootnote 10/will also vary.

Thus it should be emphasised that by adopting determinism one is not rendering oneself a puppet fated to a predetermined end over which one has no control by virtue of the fact that the end will occur (in a particular condition) irrespective of the present – instead, it is the very opposite. For determinism, the past and present matter. Determinism, operating in the right sort of way, implies sensitivity to the present – hence, the model proposed or endorsed here of reason sensitivity. You are sensitive to what is going on inside and around you. It matters what you think, believe, want, feel, and what you value. It matters what people say and do to you. Ultimately, you, and who you are, matter.

Counter-conditions – capriciousness, arbitrariness and randomness

It will be a fundamental premise of this thesis that conduct which is capricious, arbitrary or random cannot be a sound foundation upon which to attribute responsibility since it does not and cannot, necessarily, reflect anything in or about the agent and cannot therefore reflect upon the agent.Footnote 11

We must observe that even if indeterminism did operate within the human mind – which appears to be the assumed by Anglo-AmericanFootnote 12 law and South AfricanFootnote 13 law as the basis upon which criminal responsibility is imposed – it would not confirm human freedom and responsibility – instead it poses an even worse problem for freedom and responsibility. If indeterminism does apply to the operation of the mind, then we are now not slaves to our genes/environments (including our past and present social/economic circumstances), we are slaves also to randomness, arbitrariness and caprice.Footnote 14 It introduces a little roulette wheelFootnote 15 into out deliberations (into our mind/brains) such that we again have no control and we are now the servant of our genes/environmentsFootnote 16 and randomness, arbitrariness and caprice.Footnote 17

Compatibilism

It is the thesis of incompatibilist hard determinism that determinism rules out freedom and responsibility, but we must consider whether a compatibilist perspective cannot rescue it. What may be considered attractive about compatibilismFootnote 18 is that, somewhat counter-intuitively, it may satisfy the requirements one may stipulate for freedom and responsibility. It would seem that it is precisely when one’s conduct is determined (in the right sort of way – which will be addressed shortly)Footnote 19 that one can be said to be free, if not responsible.Footnote 20 It is a promising solution, particularly for the law, since ‘. . .it provides a simple way of reconciling our ordinary experience of being free with scientific views of human beings in the natural and social sciences’.Footnote 21

Compatibilism is the thesis that determinism is not incompatible with, that is, does not exclude, freedom and responsibility. On the contrary, and in the particular variety of compatibilism that will be advanced here, freedom and responsibility require determinism – of the right sort.

Different perspective – weather vane

It is helpful, though not necessary, to recognise that we speak of and understand both freedom and determinism in two different ways. This is illustrated by the weather vane. The model that will be propounded here is at its essence, a functionalist model.Footnote 22 It is that, as Sober states: ‘An agent freely performs an action if the agent’s mind is functioning properly’.Footnote 23

Since it would appear, as argued above, that indeterminism does not provide for freedom and responsibility, we are faced with the problem that our common language and discourse don’t permit us to conceive of an entity which is determined as being free and responsible. We may reject this as anathema. Yet, upon reflection, we may recognise that we do conceive of freedom in different senses: the one is freedom in its indeterministic sense, that is, as ungoverned; the other is where determinism is operating appropriately – the entity is functioning properly. A most useful analogy to conceptualise what compatibilism argues and what will be proposed here is that of the weather vane – originally proposed by Elliot Sober.Footnote 24 A weather vane may operate in three distinct manners:

  1. 1. Where it is ungoverned by the wind or any other factor – it is undetermined and free in the libertarian indeterministic sense.

  2. 2. Where it is rusted down and cannot, nor does it, follow/track the direction of the wind. Here, it is determined, but it is dysfunctional and not appropriately determined.

  3. 3. Where it is free in the sense that it is not rusted down – it is functioning properly and follows/tracks the direction of the wind. Here it is functioning and appropriately determined and ‘free’ in the compatibilist sense.

We may derive from this that a weather vane may be said to be free on two very different understandings of freedom: it may be said to be free both where it is ungoverned (where indeterminism is operating – an erratic weather vane) and where it is governed by the wind.Footnote 25 It may also be said to be determined both where it is rusted down and where it is governed by the wind. Yet we would only take the weather vane to be free in the appropriate sense, where it is free as governed and determined by the wind – it is functioning properly when it is appropriately determined.Footnote 26 The analogy to human responsibility is that we are only free and responsible where our conduct is appropriately determined – where our minds are functioning properly.Footnote 27

The functionalist conception translates into whether an agent’s psychological process is sensitive so as to be dependent upon what it ought to be sensitive to. The model is therefore that one is free and responsible when one is reason sensitive or ‘tracking’ appropriately:Footnote 28 one’s conduct must track one’s choices and one’s choices must track one’s reasons (desires/beliefs/values) and one’s reasons must be appropriately grounded – such as that one’s beliefs must track the truth or the evidence, one’s desires must track, perhaps, one’s needs and interests, and one’s values must track, possibly, what is good.Footnote 29

At its most basic, the thesis holds that an agent lacks freedom and responsibility where his/her ‘tracking’ capacity malfunctions such that s/he is stuck. That is, there is some insensitivity in the tracking capacity of the agent so that there is a breakdown or disjunction somewhere in the chain or stream that establishes proper functioning: conduct following from choices, choices from reasons (beliefs/desires/values), reasons being properly founded. Nielsen provides an example of a disjunction in the stream/tracking that is required to render a person responsible, so that a thief is responsible ordinarily, but a kleptomaniac is not:

‘A kleptomaniac cannot correctly be said to be a free agent, in respect to his stealing, because even if he does go through what appears to be deliberations about whether to steal or not to steal, such deliberations are irrelevant to his actual behavior in the respect of whether he will or will not steal. Whatever he resolved to do, he would steal all the same.

This case is important because it clearly shows the difference between the man – the kleptomaniac – who is not free with respect to his stealing and an ordinary thief who is. The ordinary thief goes through a process of deciding whether or not to steal, and his decision decisively effects (sic) his behavior. If he actually resolved to refrain from stealing, he could carry out his resolution. But this is not so with the kleptomaniac. Thus, this observable difference between the ordinary thief and the kleptomaniac, quite independently of the issue of determinism, enables us to ascertain that the former is freer than the latter.’Footnote 30

This permits us to appreciate that determinism may operate in the right and wrong sort of way; and only when operating in the right sort of way – when we are not ‘stuck’ and are reason sensitive – is freedom worthwhile, and responsibility possible. This is reinforced by what would appear the better answer to the problem of the principle of alternative possibilities.

Principle of alternative possibilities

Supposedly, the real threat posed by determinism is that it makes it impossible to do otherwise than what one actually does – it violates the principle of alternative possibilities (PAP).Footnote 31 PAP – which must be addressed and has been approached with dread – can be answered by reference to John Locke’s locked room and Harry Frankfurt’s Jones and Black, the super-controller, which seem to show that PAP may be dispensed with.Footnote 32 However, it appears that these ingenious thought experiments are unnecessary.

What is required is only to resort to the model of proper functioning proposed – of reason sensitivity, together with the appropriate aversion to arbitrariness, randomness and capriciousness. From this, it would appear that a conditional interpretation of PAP must be made. PAP cannot require that an agent do other than what s/he actually does in the precise circumstances, given the exact choices, reasons, and internal and external environments – that would require arbitrariness, randomness and capriciousness.Footnote 33 It can only require that if something significant in chain of reason changed, the person was functional such that his/her reasons/choices/conduct would alter appropriately. What we must ask is, if the circumstances were varied, would the agent respond appropriately, or is s/he ‘stuck’/rusted down. This endorses the model of ‘reason sensitivity’. This way we know that the agent is reason sensitive and that their conduct in the actual circumstances in question reflects – reflects on them and who and what they are.

Thus, as Morse appreciates,Footnote 34 causation, of any variety, in and of itself, does not rob us of freedom and responsibility. It is the sort of determinism and, most importantly its effect, that is relevant.

Neuroscience

The findings of recent neuroscience of correlatesFootnote 35 for one’s mental life or conduct or that the brain seems to be engaged before we are aware of itFootnote 36 (see Libet,Footnote 37 Platt and Glimcher,Footnote 38 and Gazzinga and LeDouxFootnote 39) are no threat, and indeed are to be welcomed. They represent what is to be expected for freedom and responsibilityFootnote 40 – that conduct, choices, and reasons are not without foundation, are not capricious, random or arbitrary. These findings show only that choice is preceded by reasons, which, one hopes, for responsibility, are preceded by an appropriate grounding in the world – as is required of the chain of reason.

To worry or expect that we should ‘direct’ our behaviours, topFootnote 41 down, first becoming aware of it and then issuing instructions, is a remnant of possibly Cartesian dualism,Footnote 42 but certainly of archaic libertarianism – that choice must be indeterminately free, free in the sense of our erratic weather vane – it requires arbitrariness, capriciousness, or randomness.

Conclusion

This renders the spectre of determinism, the demands of PAP, and the neuroscience of correlation and determinism compatible with freedom and responsibility. Indeed, determinism and the neuroscience thereof are showing that we can be free and responsible. Only when, and if, neuroscience shows that the brain of a particular agent is reason insensitive, would that indicate an impediment to freedom and responsibility.

Footnotes

1 Morse (Reference Morse and Garland2004a, p. 171).

2 While the focus of this discussion will fall on the ‘factual’ basis of responsibility, it must be acknowledged that there is also a normative basis therefore. Spurgeon Hall notes on the normative element of responsibility: ‘. . .our free will and our reason are the very capacities that constitute our human dignity and confer on us our intrinsic worth as persons’ (Spurgeon Hall Reference Spurgeon Hall2000, p. 95). Ashworth (Reference Ashworth1997, p. 26) also pays his respects to the normative element: ‘No less important a part of the principle of autonomy [to the factual element] are its normative elements: that individuals should be respected and treated as agents capable of choosing their acts and omissions, and that without allowing independence of action to individuals they could hardly be regarded as moral persons.’

3 Gleick (Reference Gleick1987, pp. 79–80).

4 ‘The free will problem arose because people assumed there was some kind of conflict between free will and determinism’ (Kane Reference Kane2002b, p. 9). Gazzaniga and Steven (Reference Gazzaniga and Steven2005, p. 1) note: ‘Perhaps the most fundamental implication of 21st-century brain science is that a way may exist to evaluate free will. The logic goes like this: The brain determines the mind, and the brain is subject to all the rules of the physical world. The physical world is determined, so our brains must also be determined. If so, then we must ask: Are the thoughts that arise from the brain also determined? Is the free will we seem to experience just an illusion? And if free will is an illusion, must we revise our conception of what it means to be personally responsible for our actions?’. See also Morse (Reference Morse2004b, p. 430).

5 More technically, compatibility refers to whether two statements can concurrently be true. If two statements are compatible, the truth of one does not render the other false (exclude it as false), the other statement may be true. If two statements are incompatible, the truth of one renders the other false (excludes it as false). See Sober (Reference Sober2005, pp. 313–4).

6 Morse (Reference Morse2004b, p. 431).

7 The term in this context should not be confused with the political persuasion, which is another matter altogether.

8 Dennett is clear that determinism simply does not imply inevitability (Dennett 2003, pp. 25, 56). See also Morse (Reference Morse2004b, pp. 439, 43).

9 See where Gazzinga and Steven define determinism as ‘the philosophical doctrine that every act, action, or situation, human or otherwise, is inevitable’ (Gazzaniga and Steven, 2004).

10 ‘May’ here signifies that the end will only vary where the variation in the past/present is significant.

11 Gazzaniga and Steven (2004, pp. 54–5); Leon (Reference Leon2002, pp. 425, 31); Morse (Reference Morse and Garland2004a, pp. 175–6). What will be proposed is that conduct must follow from choice, and choice from reasons (beliefs, desires), and even further back, one’s reasons must be appropriately grounded in the world – your beliefs must track the truth, one’s desires what is in your best interests, and values, possibly, what is good. This I refer to as the ‘chain of reason’.

12 We see in English law the notion that free-will pervades until ousted by determinism: ‘Over the centuries the ‘free will’ argument has been contradicted by the ‘determinist’ claim that all human behaviour is determined by causes that ultimately each individual cannot control. There is an immense literature on these issues, which cannot be examined here. [footnote omitted] Most philosophers arrive at compromise positions which enable them to accept the fundamental proposition that behaviour is not so determined that blame is generally unfair and inappropriate, and yet to accept that, in certain circumstances, behaviour may be so strongly determined (e.g. by threats from another) that the normal presumption of free will may be displaced. Similar in many ways is the ‘principle of alternative possibilities’, according to which an individual may properly be held responsible for conduct only if he or she could have done otherwise. [footnote omitted] In support of these approaches is the fact that most of everyday life is conducted on the basis of such beliefs in individual responsibility, and that in the absence of proof of determinism we should not abandon those assumptions of free will that pervade so many of our social practices’ (Ashworth Reference Ashworth1997, pp. 25–6). Moore cites Judge Levin to the following effect: ‘Psychiatry and law approach the problem of human behaviour from different philosophical perspectives. Psychiatry purports to be scientific and takes a deterministic position with regard to behaviour. ‘Its view of human nature is expressed in terms of drives and dispositions which, like mechanical forces, operate in accordance with universal laws of causation.’ Criminal law is, however, ‘a practical, rational, normative science which, although it draws upon theoretical science, also is concerned to pass judgement on human conduct. Its views of human nature asserts the reality of free choice and rejects the thesis that the conduct of normal adults is a mere expression of imperious psychological necessity.’ (Moore, Reference Moore1984, p. 353, cited in Reznek, Reference Reznek1997, pp. 7–8). See also Clarkson (Reference Clarkson2005, p. 55).

13 It is clear that South African criminal law takes a libertarian view: ‘Criminal law adopts the point of view of indeterminism, i.e. a point of view which accepts that man can direct his will in respect of his actions. Criminal law does not allege that disposition, character and environment exercise no influence in shaping the human will but holds all mentally sound persons accountable for punishable actions, irrespective of the influence of the factors mentioned in shaping the will.’ (Rumpff, Reference Rumpff1967, para 2.4; emphasis added.) Snyman gives further expression to the assumption of the libertarian indeterminism as the basis for responsibility: ‘If one adopts a strictly deterministic point of view, accepting that all man’s actions are predetermined by, for example, his genetic and biological make-up, or by the social or climatic milieu in which he grew up, there can be no place for the requirement of culpability: one must then accept that man’s conduct is the result of blind causal processes. If this view were adopted, there would be no point in praising someone for meritorious conduct; there would similarly be no point in reproaching him for misconduct. The whole basis of criminal law would collapse: one would then have to accept that a person’s commission of a crime was something over which he had no more control than he had over his contracting a disease. Just as one would not reproach him for catching a disease, one would not blame him for committing a crime. It would be as senseless to punish somebody for a crime as it would be to punish him for being ill’ (Snyman, Reference Snyman2002, p. 145).

14 See Gazzaniga and Steven (2004, p. 54); Kane (Reference Kane2002b, pp. 7–8).

15 Assumed to be a random system – though properly conceived it too is determined. Perhaps a more appropriate device would be a ‘random number generator’, as recommended by Morse (Morse Reference Morse2004b; Reference Morse2006, p. 434).

16 As deterministic entities.

17 Sober (Reference Sober2005, pp. 309–10); Wolf (Reference Wolf and Kane2002, pp. 151–4). As Dennett notes: ‘The Greeks came up with a desperate and ultimately hopeless idea of introducing randomness. Every now and then the atoms just swerved. The idea that some sort of indeterminism, some sort of exemption from causation, does the trick goes way back. But it doesn’t work. It’s like having a roulette wheel in your head: that wouldn’t make you free or responsible for your actions’ (Dennett, (Reference Dennett2003a) p. 39). It is important to note that the freedom contemplated by the incompatibilist libertarian perspective does not provide for freedom – at least not in the sense that is valuable or which renders one responsible – since it would render one’s conduct random, arbitrary or capricious:

‘Indeterminism, it has long been recognised would not constitute a solution, for at best it would make our actions random or capricious, not reasonable, given that they would not follow from or be grounded in our reasons. There can be no value in a freedom which comprises the ability to act in a way contrary to or independently of one’s best reasons. Or if, inconsistently, the indeterministic account allowed the connection between reasons and actions to be deterministic, while requiring that the reasons themselves be insulated from the deterministic chain, that would in turn make those reasons, if not quite capricious, then, it would seem, altogether arbitrary.’

(Leon, Reference Leon1999, p. 165)

Neither would it succeed to argue that free will inheres in a sort of indeterminacy that adopts causation of a non-determined variety – in which inevitability is excluded. In such a model, free-will arises out of the probabilistic nature of deliberations or mental events (Kane, Reference Kane and Kane2002a). Kane suggests a peculiar type of ‘chaos’ that is supposedly ‘stirred’ up in the brain when one is faced with difficult choices that permit the implications of the supposed indeterminism of quantum physics to provide for free will. So on his account, mental events are still caused, but choices, for instance, given the agent’s reasons, are not inevitable. This account must fail by virtue of the extent to which it permits capriciousness and arbitrariness into mental events. It would indeed be a most peculiar basis on which to impose responsibility if we assume indeterminism such that one’s doppelgänger (a notional molecule for molecule, neuron for neuron, equivalent twin) in identical circumstances could have done/chosen/believed/desired other than what one would since it would necessarily, ex hypothesis, require that there is nothing in the context, and more importantly, there would be nothing in the agent to account for the difference.

18 While Immanual Kant considered compatibilism a ‘wretched subterfuge’ and William James called it a ‘quagmire of evasion’, Thomas Hobbes, David Hume and John Stuart Mill endorsed the model (Kane, Reference Kane2002b, pp. 9, 11) and it is now endorsed by leading legal academics such as Honoré (Reference Honoré1999), Morse (Reference Morse and Garland2004a; Reference Morse2004b) and Burchell (Reference Burchell2005).

19 The argument here will be that we are either always responsible or not responsible to the extent to which we may distinguish between causes of conduct as sometimes being the right sort of causes and others the wrong sort (that is, determinism in the right, alternatively the wrong sort of way). We may observe the counter argument with some intuitive force articulated by Ayer (Reference Ayer1954, p. 276):

‘If I suffered from a compulsion neurosis, so that I got up and walked across the room, whether I wanted to or not, or if I did so because somebody else compelled me, then I should not be acting freely. But if I do it now, I shall be acting freely, just because these conditions do not obtain; and the fact that my action may nevertheless have a cause is, from this point of view, irrelevant. For it is not when my action has any cause at all, but only when it has a special sort of cause, that it is reckoned not to be free. But here it is objected that, even if this distinction corresponds to ordinary usage, it is still very irrational. For why should we distinguish, with regard to a person’s freedom, between the operations of one sort of cause and those of another? Do not all causes equally necessitate? And is it not therefore arbitrary to say that a person is free when he is necessitated in one fashion but not when he is necessitated in another?’

See also Gazzaniga and Steven (Reference Gazzaniga and Steven2005). It will be conceded that all causes equally necessitate, but it will be argued that this relies then on the could-not-do-otherwise condition for the argument that all conduct is without responsibility. This condition will therefore be addressed (see Principle of alternative possibilities below). It will be argued that the condition must be properly understood so as not to require nonsense. The position taken here does not require exemption from causal laws: ‘“Freedom” does not mean some scarcely intelligible state of affairs, “exemption or partial exemption from causal law” or “breach of causal continuity”. To be free is to have the ability and opportunity to do what one wants to do and to act in accordance with one’s own rational deliberations, without constraint and compulsion’ (Nielsen, Reference Nielsen and Kane1971/2002, p. 41).

20 This addresses the central problem of methodology in solving the problem of free-will. It requires, importantly that before one takes a position on the issue of whether people have free-will, one address the matter of how the problem may be resolved – what a solution would look like (Leon, Reference Leon2004). It is of fundamental importance that one consider, constructively, what one’s solution may be – under what conditions people are free and responsible – in order to escape from the incessant chatter of whether human beings are free and responsible (per Young, Reference Young, Maguire, Morgan and Reiner1994). One must then adopt either a libertarian position or a compatibilist position and once one recognises that indeterminism (per libertarianism) does not provide for freedom and responsibility, it is submitted, one is driven to consider a compatibilist position.

21 Kane (Reference Kane2002b, p. 9). See also Morse (Reference Morse and Garland2004a, p. 173–6ff).

22 Not to be confused with functionalism as an account of the nature of mind. It draws and develops upon Hume’s (Reference Hume1748/1993) notion that free and responsible action is signalled by whether the agent could have done otherwise had he wanted to. Sober (Reference Sober2005, p. 318) notes that Hume ought not to have confined his model to being conditional upon only the agent’s desires (wants), but rather the entire psychological process (including choices, beliefs, values, and desires, and that these beliefs, values and desires must be properly grounded in the world). One may note from an argument made by Morton why the entire process must be taken account of. Morton notes how, if one considers the counterexample of an individual whose beliefs and desires have been corrupted by another (perhaps by a combination of drugs and hypnotism), one observes an individual acting according to his/her beliefs or desires, but that individual cannot be said to act freely (or responsibly) (Morton, Reference Morton1996, p. 398). The developed position – that takes account of the entire psychological process – advanced here is both well and accessibly stated in Sober (Reference Sober2005).

23 Sober (Reference Sober2005, p. 326); see also Leon (Reference Leon1999, p. 168).

24 Sober (Reference Sober1995; Reference Sober2001; Reference Sober2005).

25 If this still seems anathematic, it will likely identify that one’s concept of freedom is so closely allied with indeterminism that freedom is taken to mean indeterminism. In that case the notion of freedom within determinism or provided by determinism cannot avail and one must jettison the concept of freedom – for what will be argued here is that freedom (in the indeterministic sense) and responsibility are incompatible. Freedom, in this (indeterministic) sense, and determinism, in the wrong sort of way, are both the enemy of freedom and responsibility.

26 The whether vane theory remains merely a useful analogy to demonstrate the contrary conceptions of freedom and determinism and to illustrate the concept of proper functioning. It does not propose that weather vanes are free and responsible as humans since it is well recognised that they are not governed by reasons which connect them to the world.

27 Sober (Reference Sober2005, p. 326); see also Leon (Reference Leon1999, p. 168).

28 Nielsen explains:

‘A man is free . . . when he is able to do what he wants to do or when his acts and actions are in accordance with his own choices and decisions, and when what he wants to do or what he chooses is not determined by some person, force, or some disposition, such as kleptomania, which has gained ascendancy over him. He is, by contrast, unfree to the extent that he is unable to achieve what he wants to achieve and to act in accordance with choices based on his own rational deliberation because of either outside influence or psychological malaise.’

(Nielsen Reference Nielsen and Kane1971/2002, p. 41)

29 ‘The point . . . is this: whereas an action is free if it is in the agent’s control, a will is autonomous not because it is in the agent’s control but because it is properly constituted – the deterministic path follows the appropriate route through the agent’s states . . . Beliefs, for example, would have to be appropriately grounded in evidence or reason. Desires would have to be appropriately grounded in the agent’s needs and interests. And values too would have to be appropriately grounded’ (Leon, Reference Leon1999, p. 174). Wolf adopts a similar position in respect of the appropriate targets of one’s beliefs and values, that one’s beliefs must be controlled ‘by perceptions and sound reasoning that produce an accurate conception of the world’ (Wolf, Reference Wolf and Kane2002, p. 154); and that one’s ‘values be controlled by processes that afford an accurate [normative] conception of the world’ (Wolf, Reference Wolf and Kane2002, p. 155).

30 Nielsen (Reference Nielsen and Kane1971/2002, p. 44).

31 PAP enjoys a large measure of intuitive force, and is often cited as required for responsibility. See Reznek: ‘We hold someone responsible for his actions if he could have done otherwise’ (Reznek, Reference Reznek1997, p. 6). Nielsen states: ‘Morality is indeed vitally interested in the freedom of conduct, for it only makes sense to say that men ought to do one thing rather than another on the assumption that sometimes they can do other than what they in fact do. If no man can do other than what he does in fact do, then all talk of what men ought to do or what is right and wrong is indeed senseless’ (Nielsen, Reference Nielsen and Kane1971/2002, pp. 40–1). See also Ashworth (Reference Ashworth1997, pp. 26, 98); Burchell (Reference Burchell2005, p. 440ff); Cremona and Herring (Reference Cremona and Herring1998, p. 34); Honoré (Reference Honoré1999, p. 18); Kutz (Reference Kutz, Coleman and Shapiro2002), pp. 552–3; Moore, M. S. (Reference Moore, Katz, Moore and Morse1999), p. 316; Scruton (Reference Scruton2004), p. 229. In distinguishing an excuse from an explanation, Ashworth relies on the PAP to determine whether circumstances such as social deprivation ought to qualify as a valid excuse (Ashworth, Reference Ashworth1997, p. 245). Some, such as Judge Bazelon, rely on the PAP as an excuse for ostensibly criminal conduct, on the basis that offender’s are supposedly deprived of the capacity to resist criminal conduct (Bazelon, Reference Bazelon1976).

32 Locke and Frankfurt offer two notable accounts addressing this problem such that even in the face of the effect of determinism that only one possible future is open an individual, that individual may yet be responsible for her/his conduct in that one future: ‘Even though a person is subject to a coercive force that precludes his performing any action but one, he may nonetheless bear full moral responsibility for performing that action’ (Frankfurt, p. 5). John Locke argues that freedom does not require that one be able to do other than what one is doing. He proposed a thought experiment: ‘a man be carried whilst fast asleep into a room where is a person he longs to see and speak with, and be there locked fast in, beyond his power to get out; he awakes and is glad to find himself in so desirable company, which he stays willingly in. . .’ (John Locke An Essay Concerning Human Understanding Book II, Chapter XI, sec. 10, reported in Fischer, Reference Fischer and Kane2002, p. 96). Locke concludes from this that one may be acting freely, even when you cannot do otherwise.

33 Consider the test of the doppelgänger, a molecule for molecule identical twin in another identical parallel universe. What would s/he do next? If we insisted that PAP requires that s/he must be able to do otherwise, in those/these precise circumstances, in the face of this exact environment, with these precise beliefs, desires, values, and precise choices, that would require of the doppelgänger conduct that would be capricious, random, or arbitrary. Hence, to insist on PAP in the identical circumstances, is to deprive one of freedom and responsibility.

34 That ‘causation per se has nothing to do with responsibility’ (Morse, Reference Morse and Garland2004a, p. 177, emphasis added).

35 Gazzaniga and Steven (2004, p. 66) – correlates what neuroscience is discovering.

36 Gazzaniga and Steven (2004, p. 59). Morse is of the view that we need not even be aware of the causes of our conduct since that would not deprive us of acting for reasons/causes (Morse, Reference Morse and Garland2004a, p. 168).

37 Libet (Reference Libet1991, Reference Libet1999).

38 Platt and Glimcher (Reference Platt and Glimcher1999).

39 Gazzaniga and LeDoux (Reference Gazzaniga and LeDoux1978).

40 Morse notes: ‘Discovering a brain correlate or cause of an action does not mean that it is not an action. If actions exist, they have causes, including those arising in the brain’ (Morse, Reference Morse and Garland2004a, p. 167); and ‘[The studies of Libet] simply demonstrate that nonconscious brain events precede conscious experience, but this seems precisely what one would expect of the mind-brain’ (Morse, Reference Morse and Garland2004a, p. 169). Responsibility is not incompatible with causation (Honoré, Reference Honoré1999, p. 125). ‘[W]e tend to assume that something determines people’s decisions. That nothing determined them would imply that they were not merely unpredictable but inexplicable: a belief that would be truly alarming’ (Honoré, Reference Honoré1999, pp. 136, original emphasis, footnote omitted).

41 Gazzaniga and Steven caution that ‘no one knows anything about the “top” in “top-down” ’ (Gazzaniga and Steven, 2004, p. 66).

42 Descartes explanation (Cartesian Dualism) of why mind was distinct from body (including brain) was that, firstly, he adopted the view that what he could conceive of as distinct is, by virtue of that conception alone, distinct; and secondly that he could conceive of his mind and body as distinct (Descartes (Reference Descartes1641/1996) reported in Sober (Reference Sober2005, p. 245)). However, Descartes held that though the two entities are distinct, they interact – thus his account is an interactionist account in terms of which mind affects body and body affects mind. But this has created an insurmountable problem. A fundamental flaw in the theory of Descartes was how the metaphysical could interact with the physical. Descartes’ very thesis that mind is contrary to body (the negative thereof) such that it possesses the opposite qualities of matter – such as that it is non spatial – precludes an explanation of how the body can affect the mind and mind can affect body (Ryle, p. 21).

References

Ashworth, Andrew (1997) Principles of Criminal Law. Oxford: Clarendon Press.Google Scholar
Ayer, A. J. (1954) Philosophical Essays. London: Macmillan.Google Scholar
Bazelon, D. (1976) ‘The Morality of the Criminal Law’, Southern California Law Review, 49: 385.Google Scholar
Burchell, J. (2005) Principles of Criminal Law. Cape Town: Juta and Company Ltd.Google Scholar
Clarkson, Chris (2005) Understanding Criminal Law. London: Sweet & Maxwell.Google Scholar
Cremona, Marise and Herring, Jonathan (1998) Criminal Law. London: Macmillan.Google Scholar
Dennett, D. (2003a) ‘Free will, but not as we know it’, New Scientist, No. 2396, 24 May 2003, pp. 39–40.Google Scholar
Dennett, D. (2003b) Freedom Evolves. New York: Viking Press.Google Scholar
Descartes, René (1641/1996) ‘Sixth Meditation’ in Meditations on First Philosophy. Cambridge: Cambridge University Press.Google Scholar
Fischer, J. M. (2002) ‘Frankfurt-style Examples, Responsibility and Semi-compatibilism’ in Kane, R. (ed.), Free Will. Oxford: Blackwell Publishing.Google Scholar
Frankfurt, Harry (1969) ‘Alternate Possibilities and Moral Responsibility’, Journal of Philosophy, 66: 829–39.CrossRefGoogle Scholar
Gazzaniga, M. S. (2004) ‘Free Will in the Twenty-first Century: A Discussion of Neuroscience and the Law’, in Garland, B. (ed.), Neuroscience and the Law: Brain, Mind, and the Scales of Justice. New York: Dana Press.Google Scholar
Gazzaniga, M. S. and LeDoux, J. (1978) The Integrated Mind. New York: Plenum.CrossRefGoogle Scholar
Gazzaniga, M. S. and Steven, M. S. (2005) ‘Neuroscience and the Law’, Scientific American Mind, April.CrossRefGoogle Scholar
Gleick, James (1987) Chaos. New York: Viking Penguin.Google Scholar
Honoré, Tony (1999) Responsibility and Fault. Oxford: Hart Publishing.Google Scholar
Hume, David (1748/1993) Enquiries concerning Human Understanding. Indianapolis: Hackett Publishing Company.CrossRefGoogle Scholar
Kane, R. (2002a) ‘Free Will: New Directions for an Ancient Problem’, in Kane, R. (ed.), Free Will. Oxford: Blackwell.Google Scholar
Kane, R. (ed.) (2002b) Free Will, Blackwell Readings in Philosophy. Oxford: Blackwell.Google Scholar
Kutz, C. (2002) ‘Responsibility’, in Coleman, J. and Shapiro, S. (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford: Oxford University Press.Google Scholar
Leon, M. (1999) ‘On the Value and Scope of Freedom’, Ratio, XII(2): 162–77.CrossRefGoogle Scholar
Leon, M. (2002) ‘Responsible Believers’, The Monist, 85(3): 422–36.CrossRefGoogle Scholar
Leon, M. (2004) ‘About Responsible Believing’, Personal Communication to J. Grant, 16 January.Google Scholar
Libet, B. (1991) ‘Consciousness vs. Neural Time’, Nature 352: 27.CrossRefGoogle ScholarPubMed
Libet, B. (1999) ‘Do We Have Free Will’, Journal of Consciousness Studies, 6: 45.Google Scholar
Moore, Michael (1984) Law and Psychiatry. Cambridge: Cambridge University Press.Google Scholar
Moore, M. S. (1999) ‘Choice, Character, and Excuse’, in Katz, L., Moore, M. S. and Morse, S. J. (eds.), Foundations of Criminal Law. New York: Foundation Press.Google Scholar
Morse, Stephen J. (2004a) ‘New Neuroscience, Old Problems’, in Garland, B. (ed.), Neuroscience and the Law: Brain, Mind, and the Scales of Justice. New York: Dana Press.Google Scholar
Morse, Stephen J. (2004b) ‘Reasons, Results, and Criminal Responsibility’, Illinois Law Review 363–444.Google Scholar
Morse, Stephen J. (2006) ‘Indeterminacy’, Personal Communication to J. Grant, 14 February.Google Scholar
Morton, A. (1996) Philosophy in Practice: An Introduction to the Main Questions. Oxford: Blackwell.Google Scholar
Nielsen, K. (1971/2002) ‘Reason and Practice’, in Kane, R. (ed.), Free Will. Oxford: Blackwell.Google Scholar
Platt, M. and Glimcher, P. (1999) ‘Neural Correlates of Decision Making in Parietal Cortex’, Nature 400: 233.CrossRefGoogle ScholarPubMed
Reznek, L. (1997) Evil or Ill: Justifying the Insanity Defence. London: Routledge.Google Scholar
Rumpff, F. (1967) Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters, p. 69.Google Scholar
Ryle, Gilbert (1949) ‘Descartes’ Myth’, in The Concept of Mind. London: Hutchinson.Google Scholar
Scruton, Roger (2004) Modern Philosophy: An Introduction and Survey. London: Pimlico.Google Scholar
Snyman, C. R. (2002) Criminal Law. Durban: Butterworths.Google Scholar
Sober, E. (1995) Core Questions in Philosophy: A Text with Readings (2nd edn). Englewood Cliffs: Prentice Hall.Google Scholar
Sober, E. (2001) Core Questions in Philosophy: A Text with Readings (3rd edn). Upper Saddle River: Prentice Hall.Google Scholar
Sober, E. (2005) Core Questions in Philosophy: A Text with Readings (4th edn). New Jersey: Pearson Prentice Hall.Google Scholar
Spurgeon Hall, R. A. (2000) The Ethical Foundations of Criminal Justice. New York: CRC Press.Google Scholar
Wolf, Susan (2002) ‘Sanity and the Metaphysics of Responsibility’, in Kane, R. (ed.), Free Will. Oxford: Blackwell.Google Scholar
Young, Jock (1994) ‘Incessant Chatter: Recent paradigms in Criminology’, in Maguire, M., Morgan, R. and Reiner, R. (eds.), The Oxford Handbook of Criminology. Oxford: Clarendon Press.Google Scholar