(For previous posts in this series, see here.)

It is time to examine the consequences if we are forced to conclude, as seems likely, that there is no such thing as free will and that our actions are determined by the unconscious neural activity of a physical brain that was itself the creation of the genes, environment, and stochastic processes that make up our personal and evolutionary history.

The most obvious implications lie in the areas of crime and punishment and personal morality. Does the absence of free will mean that we are condemned to an amoral anarchy, in which people can claim that they are not responsible for any and every action because they did not freely choose to do so, and thus should bear no consequences?

Actually, no. In chapter 10 The Fear of Determinism in his book The Blank State: The Modern Denial of Human Nature, Steven Pinker argues that we need not perpetuate the fiction that there is free will when there is none simply because of fears of such an outcome. Apart from the fact that it is almost always better to base our policies on what is true than on illusions, the lack of free will can actually be more effective than having it because it enables us to see more clearly when and how to assign responsibility for actions.

Take first the question of crime and punishment. Even in the absence of free will, punishment for committing a crime still makes sense because it has the effect of deterring future crimes by both the perpetrator of the crime and by other aspiring criminals who observe the culprit being punished and know that they will be punished similarly. Whether this deterrence is achieved via the product of unconscious neural network activity or a free will making a conscious decision is of no practical consequence. What the elimination of free will does is remove the element of moral judgment from punishment. The sole reason for punishing people is to deter the commission of future crimes, not to make moral statements about the culprit’s character or to seek retribution and vengeance.

The only reason for the mitigation of punishment is if the perpetrator’s brain system is incapable of responding to deterrence. As Pinker says (p. 183), “We don’t punish those who were unaware that their acts would lead to harm, because such a policy would do nothing to prevent similar acts by them or by others in the future… We don’t apply criminal punishment to the delirious, the insane, small children, animals, or inanimate objects, because we judge that they – and entities similar to them – lack the cognitive apparatus that could be informed of the policy and could inhibit behavior accordingly. We exempt these entities from responsibility not because they follow predictable laws of biology while everyone else follows mysterious not-laws of free will. We exempt them because, unlike most adults, they lack a functioning brain system that can respond to public contingencies of punishment.”

Right now we assume that people are responsible for their actions unless they are considered incapable of distinguishing between right and wrong, which is why we do not make moral judgments on the actions of infants, animals, etc. In the legal arena, the guidelines for absolving someone for responsibility were for a long time largely based on the M’Naghten rule, named after Daniel M’Naghten who, in 1843, wanted to kill the British prime minister but killed his secretary instead. He seemed to be what we would now call a paranoid schizophrenic and he was found not guilty of murder on the grounds of insanity.

This verdict caused general concern that people might invoke this kind of plea too freely as a means of escaping punishment, and in response the House of Lords drafted the following rule named after him to standardize the grounds for future claims of insanity: “Every man is to be presumed to be sane, and … that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

The M’Naghten rule focuses on the cognitive awareness of right and wrong and is quite a stringent test. The only reason to not punish a wrong action is if the person could not have been deterred by the thought of punishment in the first place because their brain was incapable of making the kinds of judgments involved. As Pinker says (p. 184), “If someone is too addled to know that an act would harm someone, he cannot be inhibited by the injunction “Don’t harm people, or else!” The M’Naghten rule aims to forgo spiteful punishment-retribution that harms the perpetrator with no hope of deterring him or people similar to him.” If everyone knows that that the lack of cognitive awareness is the sole reason for exculpation, then the deterrent effect of punishment is still strong. The only people who would not be deterred are those whose brains are similarly addled.

The rules for mitigation have sometimes been expanded to include cases where the person did know the difference between right and wrong but was unable to control their impulses or was coerced. For example, we believe that the instinct to survive is so strong that if we are faced with a deadly threat we may kill the attacker before they can kill us, even though we know that killing is wrong and that we may face punishment. The law recognizes that in such cases, we are not really making a free choice, but that we are acting on instinct, and so we have the self-defense argument. The cases of coercion are somewhat easier to adjudicate. If someone is forced to do something at the point of a gun, we view the action with leniency.

More complicated are the so-called ‘crimes of passion’ in which some acts occur because of emotions so strong that even if the perpetrator knows the action is wrong, they carry it out anyway. The ‘police officer at the elbow’ test (i.e., would the person still have committed the act even if a police officer was in the immediate vicinity) could be used to make such discriminations.

Where we run into problems is when too broad a view of brain science is taken in adjudicating crimes. Belief in free will actually creates more problems in determining who should be punished and for what, as I will discuss in the next post.