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
By the same token endless wars / criminal insanity.
An interesting lie, but a lie nonetheless.
This statement:
“That is why I (and several other regular posters) feel that a quality free public education is not just a good idea, but a necessary idea as it presents opportunities to those people who may not be able to afford private schools. These social limitations of choice like those found in education should be mitigated wherever possible simply as a matter of equity and creating a just society. It is also a wise investment as station by birth is no guarantee of performance later in life. For every Issac Newton, born into a wealthy farming family, there is an Albert Einstein and Nikola Tesla – both born into families of modest means. Depriving children of education due to their familial wealth is not just a tool of oppression by the upper class. It is a great disservice to society in that it deprives those with talent for innovation from realizing not just their personal potential but it negates any benefit to society as a whole that person might have had with the choice to pursue their education. While having economic resources may allow you take some options a poor person might not be able to, it does not mean that the poor smart person is incapable of seeing all of their options or a wealthy idiot is able to see all of their options or even choose the best one. But I digress . . . ”
Clearly shows that I am for educating the poor with quality that matches any private education. That a certain percentage of those who can and should shoulder the burden of paying for equitable quality public education don’t want to do something that benefits all of society because it costs them money is their own venal fault. Hate the poor? Hardly. I don’t those who would by their myopic greed deprive the poor of a quality education.
Speaking of which, you clearly don’t have a very good education if you think focusing on something explicitly labeled as a digression is the same thing as adding something to the conversation other than taking a swipe at me with a weak and easily disproved lie. That is what is called a distraction and an attempt at insult. Your technique as a persuasive speaker is pitiful.
Back to the main topic . . .
Do either of you have anything salient to add to the conversation about free will, biology and the possible implications for the legal system?
I had my doubts about posting this but perhaps there’s some value in it somewhere.
When “Gage wasn’t Gage” certainly is relevant to the legal domain in order to hammer out a more appropriate justice, but the larger issue of free will, in particular as it applied to me to us, is and was for me the more interesting theme.
Like many people if not most, I had my preconceived ideas. Being able to browse this blog, usually without comment, and growing fond of individual members, I was able to assess their reasoning and their beliefs against mine. In time, I found myself persuaded in new and different directions.
What changed? How was my own free will influenced and why?
I think in time I grew to love these strangers. And as that happened, somewhere inside of me a place was made to accommodate both them and their particular beliefs and ideas. And in that process, my own were changed.
my comments were directed to the possible implications to the legal system. You can’t properly exercise free will without an adequate education. People like you seem hell bent on making sure the poor never receive such an education. Why do you hate the poor so much?
Mike Spindell : There is something very calming about your posts. I sincerely appreciate your remarks and your wisdom. Maybe, it’s in part, because I am entering my 7th decade on the planet earth. I have learned to embrace a truth-teller. In my world we have an expression ” You can’t bullshit a bullshitter.” Juries most of the time see through “bullshit” spread by either side. They are looking for,and want an answer to, why the defendant did what he allegedly did. We instruct them to use their common sense and experiences in applying the facts to the law. Did he do those acts, were they intentional, did he have a legal justification, a defense, what were the factors surrounding the events, etc? Did he exercise his free will and commit an “intentional act” or were there other forces/factors/considerations at play?
Thanks for your observations. Frank
Frank, regarding philosophy classes.
I had not taken a philosophy class until I was in graduate school at the U. of Missouri. Somehow I thought it would be infinitely boring, but the program required it so I had no choice. The professor was not the most scintillating personality in the world, and in fact, I have forgotten his name. However, the course was one of the best I took in all the years I spent in college. It shaped a lot of how I see the world today, and definitely improved my appreciation of critical thinking.
I also owe a lot to another professor who told me to read Eric Hoffer’s “The True Believer” and report on it as a term paper. Wow! That book, as well as some of Hoffer’s other writings, has helped me understand a lot going on today. In fact, I insisted my teenaged granddaughter read it–she is highly gifted and scary smart. She also had an epiphany when she read it. Said it explained a lot of her acquaintances and their parents.
Do either of you have anything salient to add to the conversation about free will, biology and the possible implications for the legal system?
That’s a very topical question.
CEJ,
Not only was that on topic, it was quite entertaining. As valuable as his field work is, I do hope Dr. Sapolsky gets his class time in too. I bet when he does, there is nary an empty seat.
please, buddha, we’re trying to stay on topic.
The question wasn’t complex.
Do either of you have anything salient to add to the conversation about free will, biology and the possible implications for the legal system?
Clearly you don’t.
please, Buddha, please …
how was that, fleo?
CEJ : Wow! I just watched the video you posted featuring Dr. Robert Sapolsky. The best 30+ minutes I’ve spent in a really long time. It brought me back to a time when I was a country boy from Mississippi sitting in a college classroom in Memphis, TN as a freshman student listening to Mr. Jim McGinnis in Philosophy class. Wow, the things he knew and said! Changed my view of life! Thanks. My only regret in watching this amazing man was that I could not go back in time to 1967! Nevertheless it was a great ride!
please what? Please stop responding to Budha’s and OS’s inane rcomments?
kderosa/”Roco”,
What makes either of you think your words carry any weight when talking about either history or politics? Especially here where the regular posters and many of the readers are well versed in both subjects?
No one takes either of you seriously around here. Neither the regulars nor the vast majority of the readers. You make convenient object lessons to teach off of, but as persuasive speakers the truth is that you both really do suck.
Do either of you have anything salient to add to the conversation about free will, biology and the possible implications for the legal system?
I kinda doubt it.
Frank M.,
I think your The Law of the Garbage Truck is quite apt, as is Thumper’s Mom. We do need to be kinder to K & R. Imagine coming upon an excellent thread full of intellectual/scientific depth and concerned with the law and criminality. You might want to jump in and share your opinions, but the complexity of the discussion only makes your head hurt and it is frustrating to feel out of your depth. In this case someone feeling insecurity and inferiority may well throw in an off topic rant on a subject where they pretend to have knowledge. Although, the attempt to hijack the thread is annoying, I think compassion for people feeling so badly about themselves is the way to go.
There is a case to be made though, on how this interruption is actually instructive in a broad sense to the topic at hand. In 1976 Ruppert Murdoch bought the NY Post, up to then an afternoon tabloid with a fabulous staff of writers. In short shrift he turned it into something akin to a supermarket tabloid. It sold and its chief competitor the NY Daily News was forced to follow suit. I mark that as the beginning of the precipitous decline of Journalism in the US. NYC, the home base of all TV Media had provided an example of how the gathering and provision of news, could take second place to the glitz and superficiality of pseudo-reportage.
The heretofore independent Network News Divisions, were put under the leadership of the Entertainment Divisions in the network bureaucracy. This created the view that “the news” must turn a profit. This accelerated after Reagan’s election, when highly conservative corporations bought out the three major networks. What’s ensued since then is media news that focusses more on entertainment value and shock, rather than providing Americans with the information needed by them to act in a Democracy. Sorry for the long prelude but it is essential to my point.
Thirty five years later we find ourselves in an information environment where all points of view, no matter how factually challenged are equivalent. In your field of law we watch as trials become circusses and the rules of law dismissed by the punditry as mere technicalities, preventing the punishment of the obviously guilty. In this milieau to be charged with a crime, is to be guilty of it, until proven innocent, which you know better than I is quite hard to do.
While many of us here who are older are well aware that this showcasing of spectacular trials has always existed, never has it reached this level. The detrioration of information is particularly instructive if one listens to those commenting on the Casey Anthony testimony and who probably are taken all too seriously by the public as being knowledgeable. TV drama is now 50% cop shows, the public really believes that CSI in real life is, as it is portrayed on TV. Of course all the suspects are guilty.
This paucity of factual information has spilled over into politics and indeed science. Evolution and creationism are subject to TV debates where each side is depicted as equally credible. All beliefs, no matter how rare the supporting facts, are equal. Therefore, Hitler becoming a left winger and his compatriot Stalin added to the mix, are depicted as role models for our current President, who in reality (whether one approves of him or not)is by all reasonable and factual definition a centrist.
Certain people have grown up believing that many false equivalencies are indeed factual realities. They may be blessed with free will, but it is mediated by a severe limitation of vision, that has them perpetually scanning the environment with limited sight. The greatest danger any human can face is not being able to appropriately react
to their environment, being limited by an inability to examine all available options. To my mind those people deserve pity, rather than contempt, because they are dangers to themselves and don’t know it.
Please, kderosa & Roco…please.
@OS — I was responding to your childish “chronic teabag type trolls” comment. If you want the discussion to remain on the high road, you should not have taken the low road.
@Buddha — See Rocco’s comment. Stalin had a name for dupes like you — useful idiots.
OS:
someone opened the door. I will not post anymore of that.
Mark Esposito, Guest Blogger:
AWOL! You started a good fight, where are you?
I am reminded of a line uttered during the civil rights era by Ralph Abernathy who is reported as saying:
his father taught him, “If you see a good fight, get in it and fight to win it!”
To all my fellow bloggers: a short story for your consideration in this “pretend” world or in the “real” world:
—————————————————————————————–
THE LAW OF THE GARBAGE TRUCK:
One day I hopped in a taxi and we took off for the airport. We were
driving in the right lane when suddenly a black car jumped out of a
parking space right in front of us. My taxi driver slammed on his
brakes, skidded, and missed the other car by just inches. The driver of
the other car whipped his head around, started yelling at us, and
flipped us the bird. My taxi driver just smiled and waved at the guy.
And I mean, he was really friendly. So I asked, “Why did you just do
that? This guy almost ruined your car and sent us to the hospital.”
This is when my taxi driver taught me what I now call, ‘The Law of the
Garbage Truck.’
He explained that many people are like garbage trucks.
They run around full of garbage, full of frustration, full of anger, and
full of disappointment. As their garbage piles up, they need a place to
dump it and sometimes they’ll dump it on you. Don’t take it personally.
Just smile, wave, wish them well, and move on. Don’t take their garbage
and spread it to other people at work, at home, or on the streets. The
bottom line is that successful people do not let garbage trucks take
over their day. Life’s too short to wake up in the morning with regrets.
Love the people who treat you right. Pray for the ones who don’t.
Life is ten percent what you make it and ninety percent how you take it.
Have a garbage-free day!!!
——————————————————————————————–
Words of wisdom we can all benefit from, Frank