Submitted by Mark Esposito, Guest Blogger
The bedrock of modern Western jurisprudence is the supposition that we are free to choose our actions from a range of choices. Some of these choices are socially acceptable and we deem them “legal.” Other choices made in specified contexts are socially unacceptable, and we deem these “illegal.” For those extremely unacceptable actions denominated as “crimes” we reserve progressive punishments to deter their occurrence. Gratuitous violence is one of the most important of these condemned actions, and we have striven for centuries to overcome this endemic feature of our nature. The basic assumption being that we can deter conduct that is the product of free will by imposing undesirable consequences on the actor. How have we done? I suppose the obvious answer is that despite a multitude of approaches ranging from severe punishment to compassionate rehabilitation, we haven’t yet mastered a way to banish senseless violence from our midst. Perhaps it is time to question that basic assumption that violence is purely volitional conduct.
The philosophical roots of free will stretch back at least to ancient times. Greco-Roman thinkers like Epicurus believed in causal determinism but allowed for an element of chance in the physical world by assuming that the atoms sometimes swerve in unpredictable ways, thus providing a physical basis for a belief in free will. Others like Cicero had doubts about the purity of free will observing:
“By ‘fate’, I mean what the Greeks call heimarmenê – an ordering and sequence of causes, since it is the connexion of cause to cause which out of itself produces anything. … Consequently nothing has happened which was not going to be, and likewise nothing is going to be of which nature does not contain causes working to bring that very thing about. This makes it intelligible that fate should be, not the ‘fate’ of superstition, but that of physics, an everlasting cause of things – why past things happened, why present things are now happening, and why future things will be.
Later, Christianity postulated free will as one of its basic tenets, arguing that grace is bestowed by acting in accordance with the Creator’s will and rejecting contrary temptations. In City of God, Augustine explained that, “For the first freedom of will which man received when he was created upright consisted in an ability not to sin, but also in an ability to sin; whereas this last freedom of will shall be superior, inasmuch as it shall not be able to sin. This, indeed, shall not be a natural ability, but the gift of God.” To depart voluntarily from God was then the foundation of sin.
For two centuries Western law has adopted this basis for meting out punishments as a means of modifying behaviors. Enter then the discipline of neuroscience and the strange case of Phineas P. Gage. Gage was a railroad worker living a peaceful life in late 19th Century New England. In 1848, Gage had the curious fate to suffer an iron crowbar being thrust squarely thorugh his left frontal lobe. He survived but changes to his demeanor and personality were so pronounced that his family and friends began to remark that “Gage was no longer Gage.” Damage to his prefrontal cortex had rendered a once courteous and diligent 25 year-old man unalterably and explicitly anti-social.
His physician John Harlow noted that:
He is fitful, irreverent, indulging at times in the grossest profanity (which was not previously his custom), manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires, at times pertinaciously obstinate, yet capricious and vacillating, devising many plans of future operations, which are no sooner arranged than they are abandoned in turn for others appearing more feasible. A child in his intellectual capacity and manifestations, he has the animal passions of a strong man. Previous to his injury, although untrained in the schools, he possessed a well-balanced mind, and was looked upon by those who knew him as a shrewd, smart businessman, very energetic and persistent in executing all his plans of operation.
What are the implications then for free will in the context of obvious cases of impaired thinking like that suffered by Gage? The law has sought to address “crimes” committed by those without sufficient faculty to appreciate the moral character of their actions or those persons who act through irresistible impulse. The first attempts were the British M’Naghten rule which excused conduct, though volitionally done, which was the product of a diseased or impaired mind and which rendered the perpetrator so impaired as to extinguish his ability to divine right from wrong. The corollary irresistible impulse test sought to mitigate criminal responsibility for one who would have acted through the effects of mental disease or defect even though a constable was at his side at the time of the conduct. Both of these tests have proven unworkable and prison statistics continue to show that the psychologically impaired are statistically more likely to be incarcerated than “normal” persons.
The new challenge for the law is just how to handle the logical implication of Gage’s case. What if all human actions were not simply the product of free will but a resulting phenomena of a host of organic and genetic markers causing conduct that is inevitable? And what if these behaviors are not the product of diease or defect but of predictable stimuli or dysfunction not rising to the level of that required by M’Naghten? Sort of an organic determinism free from the control of human “will,” but flowing not from a diseased mind but a substantially normal one. Not really such a radical position. Albert Einstein considered the question and posed the classic regressive conundrum:
Honestly, I cannot understand what people mean when they talk about the freedom of the human will. I have a feeling, for instance, that I will something or other; but what relation this has with freedom I cannot understand at all. I feel that I will to light my pipe and I do it; but how can I connect this up with the idea of freedom? What is behind the act of willing to light the pipe? Another act of willing? Schopenhauer once said: Der Mensch kann was er will; er kann aber nicht wollen was er will (Man can do what he will but he cannot will what he wills).
Sound far-fetched and too esoteric? Consider then the studies of Benjamin Libet who “showed that brain activity associated with deliberate decisions can be detected shortly before we are conscious of making the decision. In these studies, participants reported when they first felt the intention to make a spontaneous movement by noting the position of a dot moving on computer screen. They apparently first became aware of their intentions about 200 milliseconds before action execution, which is later than the onset of the so-called readiness potential (or “bereitschaftspotential”) recorded from the scalp prior to movement.” While the studies are controversial they point up a fascinating possibility — that human conduct originates organically from a host of chemical and electrical sources independent of any notion of mind/brain divergence. The mind then is the brain and functions according to incalculable threads of physical causation which we can neither differentiate nor completely understand.
The prefrontal cortex is not the only area of inquiry into brain physiology as neuroscience attempts to understand and explain human aggressiveness. “It has long been known that ablation of the monkey temporal lobe, including the amygdala, results in blunted emotional responses. In humans, brain-imaging and lesion studies have suggested a role of the amygdala in theory of mind, aggression, and the ability to register fear and sadness in faces. According to the violence inhibition model, both sad and fearful facial cues act as important inhibitors if we are violent towards others. In support of this model, recent investigations have shown that individuals with a history of aggressive behaviour have poorer recognition of facial expressions, which might be due to amygdala dysfunction. Others have recently demonstrated how the low expression of X-linked monoamine oxidase A (MAOA)—which is an important enzyme in the catabolism of monoamines, most notably serotonin (5-HT), and has been associated with an increased propensity towards reactive violence in abused children—is associated with volume changes and hyperactivity in the amygdala.”
These studies bring up an interesting derivative question: Are all murderers equal in terms of brain function? The answer is decidely “no.” “Professor Adrian Raine and colleagues reanalysed positron emission tomography data to tease apart functional differences between premeditated psychopaths and impulsive affective murderers. Compared to controls, the impulsive murderers had reduced activation in the bilateral PFC, while activity in the limbic structures was enhanced. Conversely, the predatory psychopaths had relatively normal prefrontal functioning, but increased right subcortical activity, which included the amygdala and hippocampus. These results suggest that predatory psychopaths are able to regulate their impulses, in contrast to impulsive murderers, who lack the prefrontal “inhibitory” machinery that stop them from committing violent transgressions.” For Raine then, free will should be viewed along a “dimension rather than a dichotomy”
An even more intriguing question revolves around whether we can predict anti-social behavior from an analysis of brain dysfunction. If so, would this not dispel notions of pure free will as the moral governor of our actions? “A systematic review of studies examining mental illness in 23,000 prisoners showed that these prisoners were several times more likely to have some form of psychosis or major depression, and ten times more likely to exhibit Anti-social personality Disorder (APD) than the general population. The authors suggest that, worldwide, several million prisoners have serious mental illness. Several studies also show levels of head injury to be higher in violent and death-row criminals, while birth complications, which can often result in neurological damage (e.g., hypoxic-ischemic encephalopathy) and parental mental illness, are higher in anti-social populations. More often than not, people with APD and violent behaviour have a history of childhood maltreatment or trauma; having such a history has been linked to anomalous development of regions associated with anti-social behaviour, including the PFC, hippocampus, amygdala, corpus callosum, and hypothalamic–pituitary–adrenal axis. Early damage to the orbitofrontal cortex in particular appears to result in poor acquisition of moral and social rules, thus showing the importance of the interaction between environment and brain development.”
All of these studies raise serious ethical questions for the justice system. Is the basic premise of pure free will suspect as a producing cause of aberrant conduct? Can we say with certainty that actions are in any meaningful sense volitional if they are the product of immutable laws of science which manifests themselves in a predictable, albeit undesirable, results? Are we punishing for poor conduct choices by individuals or for organic brain function over which the individual has only limited control?
Valid questions that may need answering and soon. In 1995, “Stephen Mobley, 25 with a long and violent criminal record, admitted shooting a pizza store manager in the back of the head during a failed robbery four years before. His lawyers argued he should be spared the death penalty because of a defect in his genetic make-up. Mobley’s family tree is littered with incidents of criminal and violent behaviour. His mitigation focused on a direct chain of antisocial behaviour that could be traced from his great- grandfather.
His lawyers tried to adduce expert evidence to show that a gene mutation had been passed along this line and was ultimately responsible for the disastrous events on 17 February 1991 at the pizza parlour in County Hall, Georgia. As long ago as 1969, genetic evidence was first admitted in a New York court. Lawyers then put forward a genetic-defect defence concerning the XYY chromosome syndrome. They argued that the extra Y chromosome indicated greater “maleness” or aggression. However, it failed to gain widespread judicial acceptance.
Mobley’s lawyers introduced evidence of a recent Dutch study, which associated this sort of family aggression with chemical imbalance caused by a mutating gene. Nevertheless, the Georgia Supreme Court held this evidence to be inadmissible on the basis that the theory of ‘genetic connection is not at a level of scientific acceptance that would justify its admission.'”
Now 16 years later science is grappling with proofs that might impress a court with the idea that certain human predispositions exist which bear directly on anti-social conduct. If neuroscience can answer this proposition affrimatively, the larger question will be how will we deal with this knowledge and how then will we deal with the perpetrators.
Sources: The Independent; Plos Biology; Wired; Neurophilosophy; and SamHarris.org
~Mark Esposito, Guest Blogger
http://youtu.be/Qy-yqNwTf7s
My first reaction to an academic discussion on free will was, strangely enough, Al Pacino as the dark one in The Devil’s Advocate. Here’s his view on free will/ good vs. evil/ God vs. the devil:
http://youtu.be/Qy-yqNwTf7s
mespo, it is both. We have to tease out the differences and similarities between personality disorders and squired dysfunction. For example, the antisocial personality disorder appears to be hard wired. Drs. Samenow and Yochelson wrote the seminal work, “The Criminal Mind.” Later, Stanton Samenow wrote, “Inside the Criminal Mind.” He found that psychopathic traits often showed up as early as age four. Little Johnny does not mind a bit rummaging around in his mother’s purse, looking for whatever he can find that interests him,and takes it. If she objects, he becomes enraged because he feels entitled. On the other hand, when she puts his clothes in his dresser, he also becomes enraged because she is getting into HIS stuff, and is in HIS room. That is what we may see in the budding criminal personality. It goes by many names: antisocial, psychopath, sociopath, and finally, criminal.
There are brain conditions which decrease inhibitions. This does not have to be associated with antisocial traits. We sometimes see that in the brain injured or mentally challenged when they may have a sweet disposition but blurt out every passing thought. There were lines in Forrest Gump that illustrated this, such as when he told President Kennedy that he needed to pee.
There are brain conditions that are more malignant, such as what happened to Phineas Gage. A perfect example of such a person was Ken Rex McElroy, the meanest man in the town of Skidmore, and possibly the meanest man in the state of Missouri. He was so dangerous that his neighbors took care of the problem when the law either could not or would not. Who shot him is still unsolved although the shooting took place in front of about thirty townspeople on July 10, 1981. Somebody like McElroy goes beyond the ordinary sociopath into territory suggesting he may have had brain damage or some sort of imbalance of catecholamines.
After his death on the Texas Tower, Charles Whitman was found to have brain tumors. They were located in such a way as to cause bouts of rage, in addition to the monumental headaches he suffered at the end of his life.
Answering these questions have profound implications for the legal system.
Buddha: nice incite, i concur.
The fact that we’ve caused our own coming extinction is astounding to me, but looking at it from a realistic, more balanced, inclusive and understanding view (as you stated so succinctly) it’s almost like it was “built in”. In other words, we, as a species should have been much more cerebral, conservative in our procreation (world-wide), resource allocation and use, wealth distribution, and land management (not to mention harvesting sea bounty) but much more liberal in our social arrangement, and more cooperative, diverse yet contributing, peaceful and concerned for all of us than the way it developed. We failed to learn these lessons (and others) and have strayed so far from the path that i’m sure the planet will rid itself of us before we have a chance to turn it all around.
Maybe next time.
I am astounded and delghted at the plethora of insightful comments. On Tony C’s point, i was striving to ask if any reasonable degree of certainty could be obtained not necessarily absolute certainty. Our legal standard of a “reasonable degree of certainty” might be enough to fill the bill as I am “reasonably certain” absolute certainty is beyond our powers. The implicit point I was exploring is simply whether crime is aberrant volitional action motivated by malice (or some other emotion) or a mental disease derived from neural circumstances beyond the province of willful actions. Crime as malice versus crime as neural dysfunction? is it a matter of public safety or public health or both?
“This is one of the best and most thoughtful articles I have seen here to date.”
I concur. We expect rational thinking from irrational people. And all of us are irrational to a greater or lesser degree at any time.
Excellent post, Mark, and excellent comments.
I would just like to point out that your opening sentence implies that free will is an illusion as:
It is the “range of choices” that argue against the concept of free will. The range of choices are dictated by many things: culture, social norms, laws, a person’s educational level, their upbringing, economic standing, and undoubtedly many more influences.
Of course, within the range of possibilities presented by any culture people have choices, much like we have choices when we go to a large food buffet.
Lewis Carroll best summarizes my perspective on free will with a line from Through The Looking-Glass: “If it was so, it might be; and if it were so, it would be; but as it isn’t, it isn’t so.”
To supplement Tony’s post which mirrors much of what I think about free will, I would also like to posit that free will might be a function of neural complexity. Once a certain degree of complexity is acquired, free will is a natural consequence. As all creatures with a brain innately have differing degrees of complexity in their neural networks, this would explain the differences in behavior within a species and it is also reflective of differences in brain function that are measurable by tests like PET and MRI scans and found to have correlations to behaviors we as society deem to be mental illnesses. It also speaks to the fundamental differences between conservatives and liberals. Studies conducted by Ryota Kanai of the University College London have found that self-proclaimed right-wingers had a more pronounced amygdala – a primitive part of the brain associated with emotion – but that those aligned to the left had thicker anterior cingulates – which is an area associated with anticipation and decision-making. As such, it is a lack of neural complexity in the anterior cingulates that can account for conservatives inability to deal with and accept accept new social, scientific or religious ideas. Conversely, a narrower focus as displayed by conservatives can sometimes be an asset when dealing with certain kinds of problems. This does not change, however, that focus can be purposefully narrowed by someone with a broader ability to process anticipation and exercise a greater degree of problem solving whereas someone with an innately narrow focus due to their lack of neural complexity in the anterior cingulates cannot be overcome as they are limited by their brain’s structure. In other words, their lack of complexity imposes an upper limit on their behavior and their ability to process information. They cannot exercise what we perceive as free will because they lack the complexity to process the information in the more complex ways required to reach different decisions based upon the same information. Their choices are limited by the relative complexity of the neural processing. Free will, above all, requires choices. When you cannot rationally process or are structurally incapable of seeing those choices, your free will is going to be correspondingly limited.
What Tony C. said. Bingo!
Want to cause instant deafening silence in a meeting hall full of psychiatrists or psychologists?
Simply ask, “What is the nature of consciousness?”
Can we say with certainty that actions are in any meaningful sense volitional if they are the product of immutable laws of science which manifests themselves in a predictable, albeit undesirable, results?
This is the wrong question; we cannot say anything with certainty. Even the highest standard of law is “beyond a reasonable doubt,” not “beyond any shadow of doubt.”
I have been arguing about free will for over 30 years; and these are the points I make:
Science is incomplete. Read any popular science magazine and see for yourself; a recent “New Scientist” article has a cover page, “Half the Known Universe is Missing (and we’re not even counting dark matter).”
Quantum ChromoDynamics (QCD) is incompatible with Einstein’s General Relativity, which is know to have flaws, and QCD has flaws too, hence the rise of Super String theory, which nobody can solve either, and nobody knows how to resolve gravity with quantum effects, or why objects have mass, or how to fix the Inflation theory of the universe (which I think is hopelessly patched and irretrievably broken), and on, and on.
So we know a great deal, many thousands of times more than our ancestors knew, but our knowledge is probably one hundred twenty years away from being complete. Many of the things we think we know will be overturned.
So it is actually premature to say we know the universe is a deterministic clock-work Newtonian-style universe (there are plausible speculations by peer-reviewed physicists that may eliminate the randomness from quantum physics), or is deterministic but unpredictable because of random events (like spontaneous nuclear fission or alpha-particle emissions from a single atom).
There is no scientific certainty that free will is excluded. As scientists, we are not required to have some mechanism by which something is possible IF it is observable.
I will justify that claim with Darwin’s theory of evolution. Darwin (along with others) made the observation that traits are heritable, but children still differ from their parents. Chickens don’t lay eggs that hatch into cockatoos, but upon close examination even two chicks may not be completely identical.
Darwin was able to develop a theory of evolution almost a century before we understood the DNA basis of hereditary traits (and let me point out that even THAT remains incompletely understood, half a century later).
We all believe that we can make choices and our choices can be good or bad, legal or illegal, honorable or dishonorable, principled or not. That is an observation, just as valid as Darwin’s observation that children (somehow) primarily inherit their traits from their parents, or that one species of fish cannot fertilize the eggs of another. Darwin did not know WHY these patterns held true, just as we don’t know the origins of free will. Just as early man did not know WHY the sun rose and set, or why one season followed another, but was able to discern reliable patterns (and use them) without ever understanding the celestial mechanics that explained them.
I feel the same about free will. I may personally never know what mechanism explains it, but to me it is an observable phenomenon, in myself and in those I know. Any physicists that claim it is impossible are really just bad scientists, they are claiming something as fact they cannot possibly know, unless they have an indisputable grand unified theory of everything in their pocket that they aren’t telling us about.
I am not a supernaturalist, I am an atheist, and professional scientist, and I don’t believe that free will is magical. But I believe there is a very good chance it exists, because I observe it. Institute a punishment for an unfair act and people choose to engage in it less, that is empirically proven for thousands of laws over thousands of years. I do not require more proof of free will than that simple observation, and I would require far more definitive proof than the flawed physics we currently have that free will does NOT exist before I would change my mind. As long as physicists are still speculating about mysteries we have not yet solved, we do not yet have the tools to rule out “free will.”
The invention of the PET and FMRI scans are game-changers. My experience has been that parts of the legal system have fought tooth and nail to keep neuropsychological testing out of evidence. Worker’s Comp has been a major offender in that department, at least in states where I have worked. One judge told me that the neuropsychological testing would have to be done by a medical doctor in order to be accepted as evidence. That is bogus, of course, since physicians know as much about such testing as the average neuropsychologist knows about orthopedic surgery.
Lest we forget how unreliable the foundation of medical science is; i.e. induction.
A century after Newton wrote the book on physics and calculus, medical science was claiming that you could save drowning victims with a tobacco smoke enema!
Mespo: “What if all human actions were not simply the product of free will but a resulting phenomena of a host of organic and genetic markers causing conduct that is inevitable? And what if these behaviors are not the product of disease or defect but of predictable stimuli or dysfunction not rising to the level of that required by M’Naghten? Sort of an organic determinism free from the control of human “will,” but flowing not from a diseased mind but a substantially normal one.”
Mark,
The day you can explain how some mere epiphenomena of biochemical processes within the brain would find the foregoing passage ‘far fetched’ is the day you can change the laws to fit your new paradigm and thence open the hatcheries and fill the castes envisioned by Huxley in Brave New World.
You too, culheath. Excellent points by all.
Thanks, OS.
To depart voluntarily from God was then the foundation of sin.
And the only possible means to effectuate the freedom.
Excellent article. It demonstrates that we are still in a position of using sledge hammers to sculpt our models of justice – but also that refinement is at least both desirable and plausible.
Behaviorists have been arguing for many decades that “free will” is a misunderstanding of events. For example, see “Beyond Freedom and Dignity”, by B. F. Skinner, published in 1971.
See: http://is.gd/lEJa22
Can you reverse the behavior of anti-social people?
A correction to my post should have said “what some people think of same sex marriage”
“Some of these choices are socially acceptable and we deem them “legal.” Other choices made in specified contexts are socially unacceptable, and we deem these “illegal.”
As a layman I can apply this thought to what people think of the same sex marriage.
Being that it was such an ordeal in New York last night,and the violence part of this piece,there seems to be no answer from what has happened in peoples live with so much senseless violence going on I am at a lost.
This is one of the best and most thoughtful articles I have seen here to date.
These issues are some I have been struggling with for more than four decades. Given that the brain is the organ controlling all behavior, emotion and bodily function, it seems to me the law has given short shrift to the damaged or malfunctioning brain. As far as M’Naghten goes, following the acquittal of M’Naghten, Queen Victoria was alleged to have exclaimed, “Anyone who tries to kill a government minister cannot possibly be insane.”
Consequently, Lord Chief Justice Tindal was assigned the task of coming up with a rule on the jurisprudence of insanity as guidance for the courts. The unspoken aspect of those proceedings were that they wanted to come up with something that would look good on paper, but more or less assure that no one else would be found NGRI. The M’Naghten Rule came close to succeeding on that. Those 54 words made the ability of a truly mentally ill person to be excused well-neigh impossible.
We now know that brain chemistry, organic changes to the brain (as in the case of Gage) and heredity play a huge role in behavior. Obviously, some behavior is willful, but other behavior is about as much under the control of the individual as the moth can will itself to not go toward a flame.
One thing that amazes me is the requirement that a finding of mental retardation must have manifested itself before the defendant’s 18th birthday. First of all, I have worked on cases where school records have been lost or destroyed, so it becomes impossible for a defendant to prove he or she was of low IQ before the age of 18. Second, how about acquired mental handicap after the age of maturity? Disease or injury can lower an IQ as much as being born that way.
We had a judge in this area who recently (mercifully) retired. She did not believe in mental illness. I sat in the courtroom observing when two doctors from the State Hospital testified the defendant was schizophrenic and was as sick as any defendant they had ever evaluated. They testified he was not competent to stand trial. The defendant insisted on testifying, and the lawyer asked me what I thought. I knew the guy was a sick as anyone I had ever seen, so I told him to go for it, because it might actually help. The man spent an hour on the witness stand rambling in an incoherent word salad. This judge said she did not believe he was mentally ill as claimed and pronounced him fit to stand trial.
Go figure.