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
Elaine,
I have no problem with that posit either. Trauma and post traumatic responses are a totally different psychological mechanic though as compared to “normal” rearing or biological limitations. Trauma is by definition an abnormal stressor. Trauma cannot just have devastating and lasting effects on children, but adult trauma can do the same. PTSD in war veterans is a perfect example of this.
Buddha,
“Most assuredly nurture factors into nature, but I also think that no amount of nurture can overcome nature in the long term – it may modify one’s reactions to one’s nature but not alter the nature itself.”
I believe a traumatic childhood can have a devastating effect on one’s nature. I do think some people’s nature may be severely altered by such a childhood. Abused children can become adults who abuse their own children.
gbk,
I think biology defines an upper limit on your ability to perceive choices and solutions as a function of neural complexity and that upper limit as it impacts what your mind perceives as viable consequently limits your free will by presenting you with fewer choices. Free will requires choice. It will always be limited by not just the choices available, but the choices one perceives as available.
Elaine,
Most assuredly nurture factors into nature, but I also think that no amount of nurture can overcome nature in the long term – it may modify one’s reactions to one’s nature but not alter the nature itself. For example: the character of Dexter Morgan from Jeff Lindsay’s books and the Showtime series. When his father, Harry, realized what Dexter was (a serial killer), he raised him to live by a code and that code modifies Dexter’s reaction to his compulsion. Instead of focusing on victims via a self-chosen or random criteria, he chooses victims who are criminals according to the Harry’s Code. Harry’s nurture as a father modified Dexter’s nature, but it did not supplant it. I think the same thing goes for real people as well. Nurture can make a sociopath or a psychopath behave differently, but it will never change their fundamental nature – the compulsions that drive them or the essential lack of compassion, empathy, etc. Effect is not the same as negation, but with that stipulation, I do agree with you.
“Free will is manifest on a sliding scale that is limited by biology.”
Does biology limit the sliding scale, or the ability of free will to access the full scale?
Elaine, you may be interested in reading the stuff David Lykken came up with in his studied of twins. See my post above on the subject, with links.
Buddha,
“Free will is manifest on a sliding scale that is limited by biology.”
I think one’s rearing–as well as one’s genetic makeup–has a great effect on one’s behavior.
“…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.”
– culheath
It may be that we are at a turning point, one of those critical periods in time where people coalesce to usher in a new period of enlightenment and prosperity, or where people fail and darkness fills the void with all the repercussions thereof.
If we succeed, those that come after us can put aside our sledge hammers in favor of finer instruments. If we fail, those sledge hammers may be a symbol of the “good old days”.
I listened to the following program on WBUR this week. I thought it might be of interest to some of the people following this thread.
Bionic Brains And What Science Can Foresee
Brain implants. Today in rats, maybe tomorrow in humans. Enhancing our memory. Enhancing our minds.
On Point with Tom Ashbrook
June 21, 2011
http://onpoint.wbur.org/2011/06/21/bionic-brains
Excerpt:
In case you don’t read The Journal of Neural Engineering, here’s the news: scientists have created a brain implant that restores lost memory function and strengthens recall.
A brain implant. Now, it was in a rat. But it’s proven what can be done.
And offered a glimpse of what’s coming for humans. There is lots of talk about the “bionic brain.” To repair injuries, like Gabby Giffords’.
**********
Memory Implant Gives Rats Sharper Recollection
By BENEDICT CAREY
New York Times
Published: June 17, 2011
http://www.nytimes.com/2011/06/17/science/17memory.html
Excerpt:
Scientists have designed a brain implant that restored lost memory function and strengthened recall of new information in laboratory rats — a crucial first step in the development of so-called neuroprosthetic devices to repair deficits from dementia, stroke and other brain injuries in humans.
Though still a long way from being tested in humans, the implant demonstrates for the first time that a cognitive function can be improved with a device that mimics the firing patterns of neurons. In recent years neuroscientists have developed implants that allow paralyzed people to move prosthetic limbs or a computer cursor, using their thoughts to activate the machines. In the new work, being published Friday, researchers at Wake Forest University and the University of Southern California used some of the same techniques to read neural activity. But they translated those signals internally, to improve brain function rather than to activate outside appendages.
Mespo,
Yes Sir; however, Professor Turley chose the guest bloggers he did because he knew he would be away from his jurisprudential kitchen on the weekends and no doubt he wanted those who knew of the hot topics—legal and otherwise—who could stand the heat of this kitchen.
Please sling those pots n’ pans of legalese and don the chef’s fine print apron/judicial robe and you will continue to receive those insightful posts you desire from the abundantly educated guests who frequent this legal smorgasbord for weekday *and* weekend menus containing cornucopias of variety.
Dionysus.
gbk:
Who says it ever ended!
“Let the Bacchanalia begin!”
Indeed!
FFleo:
Thanks for the kind words. In addressing these types of fundamental topics, I am always a little cautious lest we turn off some readers who come to the site on the weekends for some levity and mild insight into the profession from the guest bloggers. Your curiosity is as profound as your commentary and I am happy to occasionally oblige you and some of my other friends here. I tend to leave the heavy “jurisprudential” lifting to our host who has the demonstrated mental horsepower to both interest and educate us. Otherwise, I feel like the dinner guest who insists on donning the host’s apron to participate in preparing and serving the meal. I sit at the same table as you, and Professor Turley is the deep thinker here —my small musings but eddies on his incredible intellectual torrent.
Bob,
Synergy.
Knowing constituent components and their interaction does not always explain the functionality of the whole.
That too is part of the consequent outcome of Gödel’s Incompleteness Theorems.
There will always be mystery in the systems of mankind.
That being said . . .
Let the Bacchanalia begin!
Mespo,
Others, no doubt, and I have been waiting for a topic like this from you since you became a guest blogger. The bizarre-type legal cases/topics are very well covered herein—those that we all like and help keep us returning. However, this style of topic from a guest attorney is what this blawg should also encompass on a regular basis.
As guest bloggers, we have three attorneys and two who are not legal professionals. Professor Turley could not have selected better topic posters from among the regulars to afford the readers a wide range of excellent material. Thanks to all.
I ask that you, Mike A., and Rafflaw continue to post legal topics that assist those nonlawyers here with understanding the process of law, especially since each attorney appears to practice in a different area of the legal profession. You can see from the reasoned comments that people were chomping at the bit for such a profound topic.
“Nothing can possibly be conceived in the world, or even out of it, which can be called good, without qualification, except a good will. Intelligence, wit, judgement, and the other talents of the mind, however they may be named, or courage, resolution, perseverance, as qualities of temperament, are undoubtedly good and desirable in many respects; but these gifts of nature may also become extremely bad and mischievous if the will which is to make use of them, and which, therefore, constitutes what is called character, is not good. It is the same with the gifts of fortune. Power, riches, honour, even health, and the general well-being and contentment with one’s condition which is called happiness, inspire pride, and often presumption, if there is not a good will to correct the influence of these on the mind, and with this also to rectify the whole principle of acting and adapt it to its end. The sight of a being who is not adorned with a single feature of a pure and good will, enjoying unbroken prosperity, can never give pleasure to an impartial rational spectator. Thus a good will appears to constitute the indispensable condition even of being worthy of happiness.
There are even some qualities which are of service to this good will itself and may facilitate its action, yet which have no intrinsic unconditional value, but always presuppose a good will, and this qualifies the esteem that we justly have for them and does not permit us to regard them as absolutely good. Moderation in the affections and passions, self-control, and calm deliberation are not only good in many respects, but even seem to constitute part of the intrinsic worth of the person; but they are far from deserving to be called good without qualification, although they have been so unconditionally praised by the ancients. For without the principles of a good will, they may become extremely bad, and the coolness of a villain not only makes him far more dangerous, but also directly makes him more abominable in our eyes than he would have been without it.
A good will is good not because of what it performs or effects, not by its aptness for the attainment of some proposed end, but simply by virtue of the volition; that is, it is good in itself, and considered by itself is to be esteemed much higher than all that can be brought about by it in favour of any inclination, nay even of the sum total of all inclinations. Even if it should happen that, owing to special disfavour of fortune, or the niggardly provision of a step-motherly nature, this will should wholly lack power to accomplish its purpose, if with its greatest efforts it should yet achieve nothing, and there should remain only the good will (not, to be sure, a mere wish, but the summoning of all means in our power), then, like a jewel, it would still shine by its own light, as a thing which has its whole value in itself. Its usefulness or fruitfulness can neither add nor take away anything from this value. It would be, as it were, only the setting to enable us to handle it the more conveniently in common commerce, or to attract to it the attention of those who are not yet connoisseurs, but not to recommend it to true connoisseurs, or to determine its value.
There is, however, something so strange in this idea of the absolute value of the mere will, in which no account is taken of its utility, that notwithstanding the thorough assent of even common reason to the idea, yet a suspicion must arise that it may perhaps really be the product of mere high-flown fancy, and that we may have misunderstood the purpose of nature in assigning reason as the governor of our will. Therefore we will examine this idea from this point of view.”
Again, the day you can explain all that in terms of carbon chains, etc., well that’s the day we cease being human.
Mark,
Thank you!
Great stuff from all. I’m glad Mike S pulled up a chair and, as usual, he doesn’t disappoint. Mike S’ cautionary approach to scientific/medical conclusions is admirable, but this data seem to be the best we have to go on.
I particularly enjoyed Frank’s anecdotes and OS’ research. I’ll be reading tonight it seems. As for Tony C, Buddha, and enoibob, well, were that Triumvirate in place a couple centuries ago we’d still be speaking Latin and looking forward to that Bacchus festival. Bob, Esq, Nate, gbk, Ottawa, the Toms et als and anyone else I forgot, I ‘d like to thank you for one of the most enjoyable and thought-provoking reads I’ve had in a while. Bravo, brava, bravissimo!
This is what is going on here in the Metropolitan area that has people really
trying figure out whats going on peoples minds:
New York Shooting: Four Dead In Pharmacy Massacre
http://www.huffingtonpost.com/2011/06/19/pharmacy-shooting-4-killed_n_880118.html