I was reading a paper entitled “For the law, neuroscience changes nothing and everything” today. It was written by Joshua Greene and Jonathan Cohen, both of the Department of Psychology at Princeton.
A few choice quotes ought to highlight the gist of their argument.
We foresee, and recommend, a shift away from punishment aimed at retribution in favour of a more progressive, consequentialist approach to the criminal law.
It seems Joshua Greene and Jonathan Cohen are assuming that retribution is not consequentialist. Maybe they ought to saunter over to the economics department at Princeton and familiarize themselves with game theory. Specifically, the part where the strategy known as tit-for-tat has been the most successful of all strategies.
It would seem that old saying “an eye for an eye, a tooth for a tooth” produces the best consequences.
That which works is consequentialist. Is that what you really want, Joshua Greene? Seems a bit barbaric if you ask me.
The net effect of this influx of scientific information will be a rejection of free will as it is ordinarily conceived, with important ramifications for the law. … We argue that retributivism, despite its unstable marriage to compatibilist philosophy in the letter of the law, ultimately depends on an intuitive, libertarian notion of free will that is undermined by science.
Science does not undermine libertarian theories of free will.
Because consequentialist approaches to punishment remain viable in the absence of common-sense free will, we need not give up on moral and legal responsibility.
Now that’s just horrific. Let’s say that an individual is not free to do otherwise. He does what he does without a choice in the matter. But for the sake of consequentialist outcome, we ought to punish him anyway?
According to retributivist theory of punishment is summarized thus:
Its fundamental principle is simple: in the absence of mitigating circumstances, people who engage in criminal behavior deserve to be punished, and that is why we punish them.
When retributive justice is rested upon moral theory, it certainly does employ an appeal to desert. But legislating morality is an absurdity we need not perpetuate. Under a contractarian system of justice, individuals consent to pay the debts they incur, whether they are morally culpable or not.
Take the case of an angry man setting my house on fire. It burns to the ground with a total loss to me of $500,000. (I don’t own a home, but that’s beside the point.) According to the free will libertarian, he is culpable. Now say I rebuilt the house and the same man – this time sleeping-walking – comes and burns my house to the ground again. This time, however, he denies any intention to burn my house to the ground and he is sincerely apologetic. And, for the sake of argument, let’s say that an fMRI could determine whether he intended to burn my house down, and in this case the fMRI authenticated the man’s assertion. He did not intend to do any harm.
According to the contractarian theory of justice which makes no appeal to culpability, he is still responsible for the loss incurred. And why shouldn’t he be? Because he didn’t do it intentionally? Does that matter to me one bit? Whether he did it intentionally or not, the fact remains that he – his body – incurred the loss of $500,000.
Go to an department store and accidentally knock a vase off the display shelf, thereby shattering it beyond repair. You’ll be held accountable for the cost of the vase. Now go to another department store and do the same thing, yet this time in an intentional manner. Again, you are held accountable for the cost of the vase.
Why? Because the understanding at play here is not that the department store will act as a moral arbiter, but rather that you tacitly consent to being held responsible for any damages you incur as a condition of entering the department store.
Naturalistic philosophers and scientists have known for a long time that magical mental causation is a non-starter.
Prominent free will philosopher Robert Kane subscribes to a purely naturalistic libertarianism. I doubt any credible philosopher would appeal to “magic” but that doesn’t prevent a great number of very credible philosophers from subscribing to theories which admit free will.
We have argued that, contrary to legal and philosophical orthodoxy, determinism really does threaten free will and responsibility as we intuitively understand them. It is just that most of us, including most philosophers and legal theorists, have yet to appreciate it. This controversial opinion amounts to an empirical prediction that may or may not hold: as more and more scientific facts come in, providing increasingly vivid illustrations of what the human mind is really like, more and more people will develop moral intuitions that are at odds with our current social practices.
I see the word “empirical” but I don’t see the empiricism. Empirical theory could not very well deny free will. The singular argument against free will if the one based upon faith in the black sheep of logic, i.e., inductive reasoning.
A sample of inductive reasoning as a syllogism:
All known swans are white.
That black bird is a swan.
Therefore that black swan must be white.
How inductive logic every became logic is beyond me.
P. Every known event in nature has a cause.
P. Humans are part of nature.
C. Therefore human events are caused.
Is it true that every event in nature is caused? That is impossible to say because we do not know the causes of all natural events.
One rule to keep in mind here is that when logic and reality get into a fight, it’s reality that emerges triumphant. The black swan didn’t magically turn white because logic denied its existence.
According to science, human origination, and some argue consciousness, is impossible. But we are conscious and human origination is undeniable at this point. That’s reality, deal with it.