Neuroscience and the end of criminal responsibility?

Prison is all about punishment. Someone does wrong and apparently society demands they are punished. Let us for a moment ignore the discussions about why people are led by the media, politicians and the state to think in particular ways. Let’s get philosophical instead.

Bear with me, it’s worth it.

Those people you read about in the papers. The bad people who do bad things. I’m one of them, apparently. Although I’m not really. But when a bad deed is done, it doesn’t matter if the doer of the deed is bad or not. They’ve wronged “society”. They’ve offended, committed an offence and must be punished so they and others don’t do it again.

But why do people do bad things? Why, given the choice, do people choose to do bad things? Think of yourself. When did you last choose to do something? I mean when did you really choose anything?

Free will and responsibility

If we look back to the Ancient Greeks, they didn’t think that we choose much at all. They saw human beings as part of the cosmos. They saw you as material in space that acts and reacts. You are just part of a chain of causation, not much different to other material subject to determinate laws of causation.

Socrates put a moral tint to this problematic: nobody would intentionally do evil. Yes, evil things happen, but nobody, all things being equal, really wants to do bad things. If you have a choice in any given situation between something that causes harm, with all of its consequences, and something that does good, with all of its consequences, why would you choose harm?

Another Ancient Greek, Epictetus, followed by the more renowned philosopher Aristotle, thought that rather than everything being determined by forces, perhaps people have free will, they choose.

Then came the Christians. God wills everything. But of course they had to face the problem of people doing bad things. “Ah, well, God is the primary cause, but he gave us free will”.

This dilemma between determinism and free will has plagued philosophers ever since.

Fast forward 1,500 years.

Science, or at least some scientists, dispel the notion of God. We’ve uncovered the world. There is no spirituality, no mythical beings, no God. There’s just stuff. Physics explains stuff. Forces of nature, movement, relations. Don’t get above yourself, there’s no soul, no spirit, you’re just carbon and electricity.

Some scientists look at your brain. It’s just electrical impulses, neurons and all that. You might think that you’re in control but you’re not. Neuroscientists, really smart ones like Benjamin Libet, Chun Siong Soon and their mates, ran tests and experiments to prove this. They looked at the difference between cerebral activity and the subjective experience of wanting to perform an action. Guess what? They found that you want to do something only after you’ve done it.

Some philosophers such as Daniel Wegner suggest that free will is simply an illusion, an emotion that evolved to help us negotiate our environment.

Put it this way, the part of you that is no doubt going “eh? No, I’m in control, I make the choices and decisions” isn’t really the part that’s in control. Your thoughts follow your actions. Freaky, eh?

Don’t worry, moral and legal philosophers think the same as you do. How can you be held responsible for stuff that wasn’t your conscious decision? If we are just the result of determinate causes, then how can we be to blame for anything we do?

Let’s put aside the really bonkers stuff in the so-called justice system, like Joint Enterprise, where you can end up in prison for something someone else has done (yes, really). We still have to ask where individual, conscious, freely-willed action is the responsibility of the individual consciousness.

This is a really serious point. Behind our legal system lie philosophical understandings of people and our motivations. But what if those understandings are wrong? What if neuroscience has shown that we are not conscious of what we are doing until after we have done it? Where does responsibility lie then?

Of course it could be that neuroscience is wrong. Or I’ve misrepresented it. Or it’s half-baked. Maybe. When Patrick Haggard and Benjamin Libet revisited Libet’s work decades later, they suggested that maybe we have a ‘choice to continue or cancel an action whose brain preparation is already underway’.

Perhaps that’s where free will lies, then. It’s not that our consciousness initiates actions, but rather that we can consciously cancel actions that are initiated. Perhaps some people are better able to do that than others.

Whatever the truth about free will might be, whatever the circumstances and background, we do know that we are not in as much control of ourselves as the law must assume. And that ought to open up a discussion about the point of punishment.

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