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
kderosa,
You’re not very bright or good with inference and implication.
That was a statement.
_________
“Roco”,
I have no issue with that conclusion as a practical matter. Free will or not, certain kinds of criminals need to be segregated from society for the safety of all. However, it is well settled science that brain abnormalities both structural and chemical, even injury, can lead to compulsive behavior and other mental disorders. Have you ever known anybody with a compulsive disorder? I not sure you have or you’d realize that some people literally cannot stop what they are compelled to do. They may even know as a matter of logic that they have other choices, but they simply cannot take another path. Their free will is limited by their pathology. While they may have no issue exercising free will in other circumstances, whatever triggers the compulsion is truly irresistible.
I have a friend from high school whose sister is obsessive compulsive. She would love to be able to stop what she does – it makes her miserable – but she can’t. Her belief in free will and exercise otherwise notwithstanding. Even with CBT and medication she only gets partial control and at this point she’s out of drugs to try unless they come up with something new. What’s even worse, is her condition has been exacerbated by head injuries from not just one, but two, nearly fatal automobile accidents (one her fault, the other not). If you can resist an impulse by willpower alone, it is by definition not a compulsion, but merely a desire or predilection. To be conscious of one’s compulsion as she is though must be a particular form of living Hell, but I think she’d be the first one to tell you that not all exercises of free will are equally free.
Also, knowing your range of choices and the ability to take a desired chosen action are not the same thing. Sometimes one may know they have other choices – such as my friend’s sister – but she has a biological process that keeps her from acting upon the choice she wants. She chooses to act differently but her compulsion does not let her. Sometimes – as you allude to – one may have external factors that limit ones choices as well, but that is where free will can come into play when a person chooses to explore alternative actions or to change goals. Thinking of a workaround or an alternative goal requires novel thinking and more times than not a novel approach requires either reassessing existing data with new methods of analysis and/or incorporating new data. Not all people are going to be equally skilled at this either by biological limitation, incomplete information or lack of training in lateral thinking (even if they possess the innate ability). In any case, these are limitations on free will. Free will is about the ability to see and choose options. Whether those options are viable and/or desirable is another issue. But to maximize the potential for choosing a successful option to attain a desired outcome requires being able to identify as many options as possible as rationally as possible.
______
OS,
An IQ of 44 and the judge ordered you to make her competent?
That makes me question his IQ. Seriously. That’s a WTF moment.
OS : In Kentucky we do not have a state statute equilavent to the federal Speedy Trial Act. Each case is fact specific. If the case goes on too long ( say for several years), the prosecutor will dismiss say the murder indictment and simply reindict the defendant before the expiration of the 360 day time period. So my guess would be, that the states have figured out a way to avoid the holding by the U.S. Supreme Court by statute or caselaw not holding the defendant “indefinitely”.
I do not really believe most Americans are aware of this, and my guess would be, that most would respond like the article I posted earlier from the USA Today: just keep him locked up to protect society because we watched the news and clearly he committed the crime. Whether it was intentional or the act of a mentally ill person.
OS: For the non-lawyers: the case cited by OS;
Jackson v. Indiana 406 U.S. 715 (1972) was a landmark decision of the U.S. Supreme Court that determined a state violated due process by involuntarily committing a criminal defendant for an indefinite period of time solely on the basis of his permanent incompetency to stand trial on the charges filed against him.
In Kentucky (in the rare case where a judge declares a client incompetent to stand trial),in a seroius felony case, he is Court ordered detained per KRS 202A for a 360 day involuntary hospitalization for treatment and another competency hearing prior to the expiration of the 360 days, to see if he has “regained” or is then competent. Under KRS 504.080 this procedure can be continued for several years on an annual basis. The defendant is not free, he remains in a mental health secured environment, and not admitted to a bail bond. I have a case that is 8 years old where my client annually is declared incompetent.
There is no easy answer, but I’d rather he be there, than in jail without his medication and daily mental health monitering.
OS: Thanks for the referral. One of your favorites has something to say about this discussion:
Eric Hoffer Quotes (sorry I was moved by so many quotes I posted some not directly on point, but meaningful nonetheless. Forgive me.)
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The basic test of freedom is perhaps less in what we are free to do than in what we are free not to do.
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When people are free to do as they please, they usually imitate each other.
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An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything in to an empty head.
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The capacity for getting along with our neighbor depends to a large extent on the capacity for getting along with ourselves. The self-respecting individual will try to be as tolerant of his neighbor’s shortcomings as he is of his own.
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The remarkable thing is that we really love our neighbors as ourselves: we do unto others as we do unto ourselves. We hate others when we hate ourselves. We are tolerant of others when we tolerate ourselves. We forgive others when we forgive ourselves. We are prone to sacrifice others when we are ready to sacrifice ourselves.
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Passionate hatred can give meaning and purpose to an empty life. Thus people haunted by the purposelessness of their lives try to find a new content not only by dedicating themselves to a holy cause but also by nursing a fanatical grievance. A mass movement offers them unlimited opportunities for both.
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It is not love of self but hatred of self which is at the root of the troubles that afflict our world.
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We do not usually look for allies when we love. Indeed, we often look on those who love with us as rivals and trespassers. But we always look for allies when we hate.
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It is easier to love humanity than to love your neighbor.
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How much easier is self-sacrifice than self-realization.
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All mass movements avail themselves of action as a means of unification. The conflicts a mass movement seeks and incites serve not only to down its enemies but also to strip its followers of their distinct individuality and render them more soluble in the collective medium.
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There is apparently some connection between dissatisfaction with oneself and proneness to credulity. The urge to escape our real self is also an urge to escape the rational and the obvious. The refusal to see ourselves as we are develops a distaste for facts and cold logic. There is no hope for the frustrated in the actual and the possible. Salvation can come to them only from the miraculous, which seeps through a crack in the iron wall of inexorable reality. They asked to be deceived.
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The uncompromising attitude is more indicative of an inner uncertainty than a deep conviction. The implacable stand is directed more against the doubt within than the assailant without.
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Our quarrel with the world is an echo of the endless quarrel proceeding within us.
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Animals can learn, but it is not by learning that they become dogs, cats, or horses. Only man has to learn to become what he is supposed to be.
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The savior who wants to turn men into angels is as much a hater of human nature as the totalitarian despot who wants to turn them into puppets.
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No one is truly literate who cannot read his own heart.
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No one has a right to happiness.
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There is a guilty conscience behind every brazen word and act and behind every manifestation of self-righteousness.
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Unity and self-sacrifice, of themselves, even when fostered by the most noble means, produce a facility for hating. Even when men league themselves mightily together to promote tolerance and peace on earth, they are likely to be violently intolerant toward those not of a like mind.
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The truth seems to be that propaganda on its own cannot force its way into unwilling minds; neither can it inculcate something wholly new; nor can it keep people persuaded once they have ceased to believe. It penetrates into minds already open, and rather than instill opinion it articulates and justifies opinions already present in the minds of its recipients.
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To most of us nothing is so invisible as an unpleasant truth. Though it is held before our eyes, pushed under our noses, rammed down our throats- we know it not.
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In a time of drastic change it is the learners who inherit the future. The learned usually find themselves equipped to live in a world that no longer exists.
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Wise living consists perhaps less in acquiring good habits than in acquiring as few habits as possible.
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The craving to change the world is perhaps a reflection of the craving to change ourselves.
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Where things have not changed at all, there is the least likelihood of revolution.
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People who bite the hand that feeds them usually lick the boot that kicks them.
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The revulsion from an unwanted self, and the impulse to forget it, mask it, slough it off and lose it, produce both a readiness to sacrifice the self and a willingness to dissolve it by losing one’s individual distinctness in a compact collective whole.
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Quite often in history action has been the echo of words. An era of talk was followed by an era of events. The new barbarism of the twentieth century is the echo of words bandied about by brilliant speakers and writers in the second half of the nineteenth.
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What the intellectual craves above all else is to be taken seriously, to be treated as a decisive force in shaping history. He is far more at home in a society that weighs his every word and keeps close watch on his attitudes than in a society that cares not what he says or does. He would rather be persecuted than ignored.
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Every extreme attitude is a flight from the self.
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The untalented are more at ease in a society that gives them valid alibis for not achieving than in one where opportunities are abundant. In an affluent society, the alienated who clamor for power are largely untalented people who cannot make use of the unprecedented opportunities for self-realization, and cannot escape the confrontation with an ineffectual self.
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There are many who find a good alibi far more attractive than an achievement. For an achievement does not settle anything permanently. We still have to prove our worth anew each day: we have to prove that we are as good today as we were yesterday. But when we have a valid alibi for not achieving anything we are fixed, so to speak, for life. Moreover, when we have an alibi for not writing a book, painting a picture, and so on, we have an alibi for not writing the greatest book and not painting the greatest picture. Small wonder that the effort expended and the punishment endured in obtaining a good alibi often exceed the effort and grief requisite for the attainment of a most marked achievement.
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It is the fate of every great achievement to be pounced upon by pedants and imitators who drain it of life and turn it into an orthodoxy which stifles all stirrings of originality.
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Our achievements speak for themselves. What we have to keep track of are our failures, discouragements, and doubts. We tend to forget the past difficulties, the many false starts, and the painful groping. We see our past achievements as the end result of a clean forward thrust, and our present difficulties as signs of decline and decay.
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Propaganda does not deceive people; it merely helps them to deceive themselves.
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When we leave people on their own, we are delivering them into the hands of a ruthless taskmaster from whose bondage there is no escape. The individual who has to justify his existence by his own efforts is in eternal bondage to himself.
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There are many who find the burdens, the anxiety, and the isolation of an individual existence unbearable. His is particularly true when the opportunities for self-advancement are relatively meager, and one’s individual interests and prospects do not seem worth living for. Such persons sooner or later turn their backs on an individual existence and strive to acquire a sense of worth and a purpose by an identification with a holy cause, a leader, or a movement. The faith and pride they derive from such an identification serve them as substitutes for the unattainable self-confidence and self-respect.
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However different the holy causes people die for, they perhaps die basically for the same thing.
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It is loneliness that makes the loudest noise. This is true of men as of dogs.
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It is part of the formidableness of a genuine mass movement that the self-sacrifice it promotes includes also a sacrifice of some of the moral sense which cramps and restrains our nature.
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Far more crucial than what we know or do not know is what we do not want to know. One often obtains a clue to a person’s nature by discovering the reasons for his or her imperviousness to certain impressions.
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The wise learn from the experience of others, and the creative know how to make a crumb of experience go a long way.
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All leaders strive to turn their followers into children.
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The frustrated follow a leader less because of their faith that he is leading them to a promised land than because of their immediate feeling that he is leading them away from their unwanted selves. Surrender to a leader is not a means to an end but a fulfillment. Whither they are led is of secondary importance.
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The ability to get along without an exceptional leader is the mark of social vigor.
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We are unified both by hating in common and by being hated in common.
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It is not sheer malice that pricks our ears to evil reports about our fellow men. For there are frequent moments when we feel lower than the lowest of mankind, and this opinion of ourselves isolates us. Hence the rumor that all flesh is base comes almost as a message of hope. It breaks down the wall that has kept us apart, and we feel one with humanity.
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The most gifted members of the human species are at their creative best when they cannot have their way, and must compensate for what they miss by realizing and cultivating their capacities and talents.
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Man is a luxury loving animal. Take away play, fancies, and luxuries, and you will turn man into a dull, sluggish creature, barely energetic enough to obtain a bare subsistence. A society becomes stagnant when its people are too rational or too serious to be tempted by baubles.
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Man is the only creature that strives to surpass himself, and yearns for the impossible.
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There is probably an element of malice in the readiness to overestimate people: we are laying up for ourselves the pleasure of later cutting them down to size.
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When the weak want to give an impression of strength they hint menacingly at their capacity for evil. It is by its promise of a sense of power that evil often attracts the weak.
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The monstrous evils of the twentieth century have shown us that the greediest money grubbers are gentle doves compared with money-hating wolves like Lenin, Stalin, and Hitler, who in less than three decades killed or maimed nearly a hundred million men, women, and children and brought untold suffering to a large portion of mankind.
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Whoever originated the cliche that money is the root of all evil knew hardly anything about the nature of evil and very little about human beings.
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…there is no alienation that a little power will not cure.
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When watching men of power in action it must be always kept in mind that, whether they know it or not, their main purpose is the elimination or neutralization of the independent individual- the independent voter, consumer, worker, owner, thinker- and that every device they employ aims at turning men into a manipulable “animated instrument” which is Aristotle’s definition of a slave.
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The individual’s most vital need is to prove his worth, and this usually means an insatiable hunger for action. For it is only the few who can acquire a sense of worth by developing and employing their capacities and talents. The majority prove their worth by keeping busy.
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We have rudiments of reverence for the human body, but we consider as nothing the rape of the human mind.
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The hatred and cruelty which have their source in selfishness are ineffectual things compared with the venom and ruthlessness born of selflessness.
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The desire to belong is partly a desire to lose oneself.
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The Greeks invented logic but were not fooled by it.
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Those who see their lives as spoiled and wasted crave equality and fraternity more than they do freedom. If they clamor for freedom, it is but freedom to establish equality and uniformity. The passion for equality is partly a passion for anonymity: to be one thread of the many which make up a tunic; one thread not distinguishable from the others. No one can then point us out, measure us against others and expose our inferiority.
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Where freedom is real, equality is the passion of the masses. Where equality is real, freedom is the passion of a small minority.
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One of the surprising privileges of intellectuals is that they are free to be scandalously asinine without harming their reputations.
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Fair play is primarily not blaming others for anything that is wrong with us.
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The rule seems to be that those who find no difficulty in deceiving themselves are easily deceived by others. They are easily persuaded and led.
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We all have private ails. The troublemakers are they who need public cures for their private ails.
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A doctrine insulates the devout not only against the realities around them but also against their own selves. The fanatical believer is not conscious of his envy, malice, pettiness and dishonesty. There is a wall of words between his consciousness and his real self.
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Language was invented to ask questions. Answers may be given by grunts and gestures, but questions must be spoken. Humanness came of age when man asked the first question. Social stagnation results not from a lack of answers but from the absence of the impulse to ask questions.
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We often use strong language not to express a powerful emotion but to evoke it in us.
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Our sense of power is more vivid when we break a man’s spirit than when we win his heart.
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Absolute power corrupts even when exercised for humane purposes. The benevolent despot who sees himself as a shepherd of the people still demands from others the submissiveness of sheep.
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It is often the failure who is the pioneer in new lands, new undertakings, and new forms of expression.
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A war is not won if the defeated enemy has not been turned into a friend.
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We lie loudest when we lie to ourselves.
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The end comes when we no longer talk with ourselves. It is the end of genuine thinking and the beginning of the final loneliness.
The remarkable thing is that the cessation of the inner dialogue marks also the end of our concern with the world around us. It is as if we noted the world and think about it only when we have to report it to ourselves.
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It is the pull of opposite poles that stretches souls. And only stretched souls make music.
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Every era has a currency that buys souls. In some the currency is pride, in others it is hope, in still others it is a holy cause. There are of course times when hard cash will buy souls, and the remarkable thing is that such times are marked by civility, tolerance, and the smooth working of everyday life.
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There is sublime thieving in all giving. Someone gives us all he has and we are his.
RE: KRS 504.090
How does KY handle issues where Jackson v. Indiana may come into play?
I had a case once in Jones County, MS (no jokes please) in the mid-1970s. A woman with an IQ of 44 had been hired by a nursing home to help with patients. The woman had no clue as to how to adjust the bathtub faucets, because her little shack had no running water and she had never been around indoor plumbing. She ran all hot water and helped an aged patient into the tub, where the patient was scalded to death. The mentally challenged woman was arrested and charged with manslaughter.
When we had a competency hearing, the judge was outraged at our findings the woman was incompetent with an IQ of 44. He ordered us to restore her to competency, and gave us a month do do it. When we went back to court, he threatened both the Chief Psychiatrist and me with contempt for not following his instruction to restore her to competency. Fortunately, the psychiatrist was also an attorney and had written a brief in anticipation of what the judge would do. That too pissed off the judge who did not know the doctor was also a licensed attorney. Hizzoner accused us of getting help from, “Those damn civil rights lawyers,” that were ruining the legal system in Mississippi.
“he could have chosen otherwise”. I think that takes into account your concern.
If you cannot see the choice, then there is no choice to be made. And if you have some biological compulsion then there is no free will for you in whatever area your compulsion covers. Unless of course you believe in free will, then you can overcome the biological compulsion.
If you choose to give into the biological compulsion then, assuming you commit a crime, you should be punished.
Personally, I would say that until such time as we truly understand the brain, some crimes should be punishable by life in prison to remove the person from society for its protection. Child molesters, rapists, first degree murder, that type of thing.
My hopefully last post to bring the criminal law back into the discussion:
The defendant’s mental health is a factor in a criminal prosecution.
Some Kentucky Statutes (revelant to this topic):
KRS 504.090 No defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompentecy continues.
In KY we have 4 mental states defined in KRS 501.020: intentionally, knowingly, wantonly and recklessly.
KRS 501.080 : Intoxication is a defense to a criminal charge ONLY if such condition either:negates the existence of an element of the offense or is NOT Voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
Other statues:
1. § 504.150. Sentence for person found guilty but mentally ill.
Title 50. KENTUCKY PENAL CODE
2. § 504.140. Examination before sentencing.
Title 50. KENTUCKY PENAL CODE
3. § 504.130. Grounds for finding defendant guilty but mentally ill.
Title 50. KENTUCKY PENAL CODE
4. § 504.120. Verdicts of jury.
Title 50. KENTUCKY PENAL CODE
5. § 504.110. Alternative handling of defendant depending on whether he is competent or incompetent to stand trial.
Title 50. KENTUCKY PENAL CODE
6. § 504.100. Appointment by court of psychologist or psychiatrist during proceedings.
Title 50. KENTUCKY PENAL CODE
7. § 504.090. Incompetent defendant not to be tried.
Title 50. KENTUCKY PENAL CODE
8. § 504.085. Facility’s standing to petition for clarification or modification and to appeal.
Title 50. KENTUCKY PENAL CODE
9. § 504.080. Commitment to facility for examination – Persons to be present at hearing – Termination of criminal proceedings not bar to civil proceedings.
Title 50. KENTUCKY PENAL CODE
10. § 504.070. Evidence by defendant of mental illness or insanity – Examination by psychologist or psychiatrist by court appointment – Rebuttal by prosecution.
Title 50. KENTUCKY PENAL CODE
Frank, thank you. You are very kind.
BTW, Have you read any of Eric Hoffer’s books? If not, they are well worth your time, especially “The True Believer” and “The Ordeal of Change.”
Hoffer was a sterling example of an innate brilliance overcoming adversity. He went blind after a fall as a child of seven, but inexplicably recovered his sight eight years later, when he was fifteen. As a young man, he went on a gold mining trip, where would be isolated in the wilderness for many months. He went to a used book store and asked for the biggest, thickest book in stock. A massive volume of the collected works of Michel de Montaigne was brought out and he bought it. Reading during the time he was snowbound over the long winter, it opened doors to him that he never knew existed. Later, he was a longshoreman in San Fransisco. He wrote his books during times they were on strike. He would go for walks or sit on a park bench and make notes on slips of paper as he observed the world around him. Later, those scraps of paper became parts of his books.
His 131 notebooks and other papers are now in the library at the Hoover Institution at Stanford. They occupy 75 feet of shelf space, and last time I read about them, not all of them have been cataloged or published.
Your insinuation that I am Roco is cute.
the public schools do a reasonable job educating the middle class and above. They are, however, almost uniformly awful at educating the poor, ie the ones who can’t afforf their own education. So your comment is misdirected.
that’s it keep a stiff upper lip in front of your buddies. Mommy would be proud.
Pardon my sloppy edit.
“you are only interested in being a disruptive douche bag.”
kderosa,
You are incapable of hurting my feelings so don’t flatter yourself.
Do you have anything salient to add to the conversation about free will, biology and the possible implications for the legal system?
Because it looks as if like right-wing propaganda trolls are you only interested in being a disruptive douche bag.
“Roco”,
Your second statement begs the question that public schools cannot teach people how to think properly. As an professional educator, Elaine has said many times that not all public schools are created equally, which matches my anecdotal experience with them across the country. Some were great. Some were junk. But the same thing can be said of the private schools as well. A school is only as good as its teachers and administration. They are as individual in character and effectiveness as individual people are different in character and effectiveness.
perhaps a better education would improve your labeling skills.the results of the public education school system are objectively awful for the poor, especially poor blacks. So either you don’t care about those results or you aren’t aware of them.
sounds like I hurt your whittle letfy fascist troll feelings. I’m sorry.
“Roco”,
Congratulations. However, your unattributed quote begs the question that all free will is of equal quality. Someone suffering from a compulsion has their free will limited by that compulsion. This is evidenced by the nature of compulsion. Just as someone incapable of rationally integrating new information in formulating their choices has their free will limited by their inability to see choices that those who can integrate new information rationally – as opposed to emotionally – can see. One still cannot make a choice one cannot see.
kderossa:
maybe the nature of public schools and how they teach diminishes an individuals ability to think properly. They have been volitionally compromised because they are told that which is not true. If they do not know truth then they have no free will because they cannot act in self preservation.
It is the equivalent of a bird not to teach it’s offspring how to fly. A bird depends on its wings and humans depend on their brain. If you clip the ability of a human to think at an early age you take away, in essence if not in fact, their free will.
Dredd:
From your blog,either word could be taken out and it would describe today for many.
” “making up a fantasy world then believing it to be reality”.
Fantasy/World
OS: Kudos to another bright calming voice in this world where humans communicate without the benefit of eye contact, hand gestures, body language, facial reactions nor voice inflections. I enjoy your well thought out comments. Thanks, Frank
Disagree all you like. It was my statement and I expressly labeled it as a digression. As to the rest, it is your incorrect assumption that I don’t care about results. That or your English skills are so bad you cannot understand the sentence “I am for educating the poor with quality that matches any private education.” I am for equitable and quality education for all. Something you could have clearly benefited from.
Do you have anything salient to add to the conversation about free will, biology and the possible implications for the legal system?
Or like most right-wing propaganda trolls are you only interested in being a disruptive douche bag?
as far as free will goes, I think it exists. As far as its application to the law? If you have free will then you can choose to follow the law or not. The choice is yours. If you have a defect which prohibits understanding, then you should be sent to a facility to take care of you.
I understand child molesters cannot help themselves or so they say. If that is the case then they are slaves to a biological compulsion. But if that is the case then the first time they are caught they should be put away for life since rehabilitation is not possible, especially if you dont believe in free will.
But then that could apply to all crimes. And so we could say, if we dont believe in free will, all criminals are incorrigible and should be put away for life. Which seems rather silly to me since some criminals engage in crime for lack of understanding or lack of thinking through what they are going to do and the consequences of their actions.
“Because man has free will, no human choice—and no phenomenon which is a product of human choice—is metaphysically necessary. In regard to any man-made fact, it is valid to claim that man has chosen thus, but it was not inherent in the nature of existence for him to have done so: he could have chosen otherwise.
Choice, however, is not chance. Volition is not an exception to the Law of Causality; it is a type of causation.”
I disagree, buddha, I believe your initial pointvwas highly relevant and not a mere digession. In any event, my point is that you’re lofty rhetotic notwithstanding, your system in practice has been a complete failure in educating the poor. Like most lefties you only care about appearances, not actual results.