Free will: Should the law be based on luck?

[Voltaire2]

THE DEFINING CONCEPT of criminal guilt is “mens rea” — the guilty mind. The idea of mens rea emerged from 12th- and 13th-century developments in Catholic canon law that redefined criminal guilt to align it more closely with notions of sin: Your will is what makes you guilty. Criminals are distinguished by their freely willed intent to commit (or at least risk bringing about) a culpable act.

This vision shaped European and then American legal systems for centuries. But in the early 1900s, American social scientists proposed an alternative view. They saw crime as a matter of social, not individual, responsibility. They had studied the ways in which environmental factors, including poverty, could lead people to commit crimes, and they advocated for criminal justice reforms that aimed to rehabilitate those criminals.
...
Today, however, neuroscience shows at a biological level what early 20th-century scientists showed at a social level: Our behavior has influences we cannot control. What we identify as free will, a person’s decisions and choices, always operates under a set of environmental and genetic constraints. In some cases — like the mass shooting committed in 1966 by Charles Whitman, who was later found to have a brain tumor — there’s an identifiable disorder. But in other cases, these constraints are part of typical development. New research shows how the brains of 18- to 25-year-olds — traditionally treated as adults by the law — are still developing the crucial decision-making and impulse control mechanisms that would otherwise restrain criminal behavior, leading scientists to advocate for mitigated sentences for this age group.
...
Neuroscientist David Eagleman agrees that “Was it his fault, or his biology’s fault?” is the wrong question to be asking. In his 2017 Atlantic article “The Brain on Trial,” he explains, “The choices we make are inseparably yoked to our neural circuitry, and therefore we have no meaningful way to tease the two apart.” In other words, there’s no reliable way to separate free will from luck. Therefore, Eagleman says, we should stop focusing on blame altogether. Blame is “a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life.” We need to look forward instead, he argues, to study how an individual is likely to behave from now on and how we can structure social incentives so as to deter destructive behavior in the future.

Entire essay here: https://www.bostonglobe.com/ideas/2018/07/21/should-law-based-luck/mnlC0EaMl13hrPfuXvI8wI/story.html

[mia]

1. Luck and love.

Situational ethics and the realization that "if not for the grace of God [luck], so go I."

[c-rational]

2. interesting topic. A good book IMO that touches on this subject is "The Power of Habit," by

Charles Duhigg. On the NYT best seller list a few years back. One example given was a man who murdered his wife while sleep walking. He was found not guilty. Another example was a woman who gambled away all of her family's money. She was not absolved of her debts to the casino's which preyed on her habit. One of my favorite lines is by William James who said "The will to believe is the most important ingredient in creating belief in change." The first act of free will should be to believe in free will.

[struggle4progress]

3. I, for one, do not want the notion "intent" to disappear from the law

since it seems to me obvious that one person's act might harm another through freak accident, gross negligence, or malice aforethought

It is, of course, perfectly reasonable to note that our ideas here are imperfect: but that is the human condition, and making an imperfect distinction may still be better than making no distinction whatsoever

[Voltaire2]

5. There is no reason why our laws should remove

intent. The point is that even with “intent” it is quite likely that the classic Christian concept of free will is not operative.

[struggle4progress]

6. I have no idea how to interpret "intent" without "free will"

[Voltaire2]

7. Did you try reading the article?

Today, however, neuroscience shows at a biological level what early 20th-century scientists showed at a social level: Our behavior has influences we cannot control.

[struggle4progress]

9. It is a mere platitude that our behavior has influences we cannot control.

If I slip at the edge of a cliff, I may be unable to keep from falling off it

If I do not eat enough, I starve to death

My own physiology would have prevented me from being a professional athlete, so I choose not to spent my time regretting my athletic limitations -- and never followed sports much

Much as I would like to be a virtuoso violinist, an expert on cosmology, a successful brain surgeon, and a well-informed botanist, there are a limited number of hours in a day and a finite number of days in a human life, so I must decide how to use my time

My personal experiences -- in infancy, childhood, adolescence, young adulthood, and later -- affects how I interpret other people's behavior and the world in which I find myself

The first time I rode a horse as a child, I was thrown and dragged. I didn't get on a horse again for a decade. That's probably a psychological matter

The first time I drank alcohol as an adolescent, I got puking drunk. I learned to drink socially in the next few years but never wanted much alcohol: eight ounces of beer takes me about two hours to consume. Is that a physiological or a psychological matter or some combination? I don't know

There's no clear-cut way to draw a nice bright line between the acts for which we should hold people responsible and the acts they have difficulty controlling, because people have differing innate abilities and differing histories. Our imperfect laws recognize this fact

We should make these distinctions when dealing with other people in part because we think other people should make these distinctions when they deal with us

[Voltaire2]

10. Oh ok. I guess you just have to dismiss the

steady accumulation of neurological evidence that free will is basically an illusion as ‘platitudes’. I get it. It makes me uncomfortable too. But our discomfort with where the evidence points is pretty much irrelevant.

So back to crime and punishment: just assume that hypothetically those platitudinous neuroscientists are correct, and that behavior, good, bad and downright criminal is not the result of freely chosen actions. What would be the ethical way to handle our social misfits? The ones we currently hand out horrendous punishments to?

[struggle4progress]

11. To worship our own ideas, as if they were real, is idolatry

Our knowledge of ourselves, of others, and of our world is imperfect, rather like a city map that omits very many details, has some wrong street names, and incorrectly shows some intersections that do not exist: the map can be useful without being completely accurate

Socrates rather insistently pointed out that our certainties about our knowledge are easily exposed as errors; and Descartes later suggested that we could concentrate on specific improvements, rather than grand schemes

You would have me discard an idea very useful for a productive life -- the idea that we define ourselves by our choices -- and your apparent grounds for this suggestion is the fact that our choices are always constrained by conditions, so that we cannot select from an unlimited menu

I regard your proposal as a sophomoric evasion of responsibility: whenever we decide not choose, the choice will nevertheless be made for us by others, or by material forces, or by the passage of time

[qazplm135]

28. Plenty of folks in both the medical/neurological side

and the psychological side don't agree that that evidence says free will is "an illusion."

There's pretty hefty debate on what it means right now, so your presenting it as a settled issue is a bit disingenuous.

I personally think it's a gross oversimplification. Turns out your abilities are constrained on the left and right by biology and environment. Got it. That's not the same thing as "free will is an illusion." It more means that those uber liberal social sciences type folks got some stuff right, and we should consider crime as not simply an individual issue, but a societally-influenced issue as well.

That environment matters. That poverty and education (or lack thereof) matters.

I grew up poor with academic parents. Yet I also was fortunate enough to have a pretty decent brain. Still, coulda gone either way. The latter won out and I'm a walking "exception." But could have been the other way. Some of it is do to my own choices, some of it is due to the choices of others to help me at critical times. Some of it is due to biology. Some of it is due to environment.

It's a mixed bag.

[qazplm135]

27. Being influenced

does not equate to lack of free will or intent, even if we have influences " we cannot control."

It should be factored in perhaps, considered, but it does not equate to such an absolute.

Criminals don't commit crimes at every single opportunity. If they had no free will and simply were slaves to their influences, they'd commit crimes every chance they get. But they don't. Maybe because of a significant other, or a desire to not get another crime on their record and spend more time in jail, or a host of other reasons, criminals often abstain from committing crimes.

Free will is simply a term that has taken on some, unfortunate, religious significance, but in reality is simply a recognition that we have the ability to rise above our influences at least some of the time.

[trotsky]

4. Gee, once again we find that reality isn't nearly as tidy as religion wants us to believe.

"FREE WILL!!!1!11!!elevens!"

[edhopper]

8. Do people with Tourette

have free will?

Are they responsible for their actions?

[Bretton Garcia]

12. This trendy "finding" by neurologists is wrong.

Last edited Tue Jul 24, 2018, 07:02 AM - Edit history (4)

The worst example of junk science I've ever seen

I'd urge atheists not to jump on this bandwagon. No matter how obnoxious religion has made its concept of free will, the whole core of humanity depends on having at least some free will.

From Wiki;

"The field remains highly controversial. There is no consensus among researchers about the significance of findings, their meaning, or what conclusions may be drawn. The precise role of consciousness in decision making therefore remains unclear."

The whole of human being is inconceivable, incoherent, if we have no responsibility for our decisions.

Religion to be sure, misused that idea. By fully, radically blaming us for any mistaken applications of a freedom that God was said to have granted.

The better position might be not to 1) totally deny any free will. But 2) to allow some leeway to people; since their free will is the center of our being. And 3) is overall a very good thing. Allowing us to adapt to changing surroundings. 4) But it also often causes us to err.

So we might forgive some errors; we can't help making some.

The religious conclusion is the opposite of that: it says that we could have avoided most or all errors. By giving up free will, and just doing what the church told us. Which is wrong. Since the churches themselves made countless errors..

Yes we have free will. But the Church perverted it, and tried to end it.

[edhopper]

13. free will is too simple

a phrase for such a complex area of human behavior.

I doubt there is even a definition of free will that can be agreed on.

It is too ambiguous to be useful.

[Act_of_Reparation]

14. Basically.

There's no universally accepted definition.

If one were posit a kind of limited free will—that is, we are free to make decisions insofar as environmental, genetic, and epigenetic factors will allow—I would agree it exists. If one were to posit a classical kind of free will hinging upon the rational mind weighing the potential consequences of each and every action, I would try hard not to laugh... but I doubt my genetics could ultimately prevent it.

[MineralMan]

15. Exactly. Within our boundaries, we are able to decide many things.

Beyond those boundaries, most of which are physical, we are not. That's why my definition of free will is limited to decisions we are able to make.

Recently, I've been reading heavily in the neuroscience field, due to a current and ongoing project. Specifically in the area of decision-making. The first book I read on the subject was Daniel Kahneman's Thinking Fast and Slow. He won the Nobel Prize in Economics for his research into how the brain makes decisions. I've read several others, as well, in the past three months.

Bottom line for all this is that most human decisions are made quickly, intuitively, emotionally and otherwise without a great deal of time spent in evaluation. Those decisions, research has found, are made in the brain's oldest, fastest-acting parts, the limbic system, which we share with all other vertebrates. Only when we engage the analytical processes of the cerebral cortex do we really make considered decisions, based on calculations, comparisons, rational thinking, and other means. That part of the brain works more slowly, and often is simply bypassed in favor of a quick decision and action.

While I'm dealing with this from a marketing perspective, the whole concept can be applied to a much broader spectrum of human behavior. We all make thousands upon thousands of decisions each day. Most of them are made unconsciously and automatically. if that were not so, we could not drive a car or even walk down the street. Only when we shift out of that mode and exercise the more recently-evolved parts of our brain do we exercise free will. All too often, though, we do it poorly, something that Kahneman made clear through decades of experimentation.

I'm tweeting a good deal about neuroscience and marketing these days: https://twitter.com/garcky3

We're very flawed, but we are what we are. We have free will, within our boundaries of decision possibilities. However, most of the time, we just do stuff out of habit, necessity, fear, hunger, sexual urges, or whatever. We could exert free will, but we'd have to slow down and think about it. We're not so good at that.

[Act_of_Reparation]

16. Precisely.

It's free enough for our system of justice (mostly), but not for the dispensation of infinite, divine justice. If tossing people into the pit for eternity was a high priority, God could have done a much better job designing our sympathetic nervous systems.

[MineralMan]

17. Well, the structure of the human brain,

along with the brains of other mammals, is one of the best pieces of evidence for evolution, really. You can track the development of the brain quite easily. From the relatively simple reptilian brain, through the brain of other mammals to the brain structure of primates and humans, there's clear evidence that brain evolution has been additive over time.

Any deity worth its salt would have done a better job of designing the human brain by starting with the cerebral cortex, and adding the basic functions to keep the body functioning.

Of course, lacking a deity in the first place, evolution happened, adding more and more complex brain structures as animal life developed. It worked, but left humans still acting like lizards and birds a good deal of the time.

Did you know that only birds and lizards can be put into a stupor by gently stroking their abdomens? That doesn't work with mammals. I've always found that interesting.

[Act_of_Reparation]

18. Gonna have to disagree there.

The brain good evidence for evolution, but the best is molecular. Redundant pseudogenes, endogenous retroviruses... the broken, backward, genomic junk conserved across species.

Where design is concerned, I would have make the knees sturdier and more durable, would have made the soft pallet less likely to suffocate you in your sleep, and I definitely would have given the testitcles some rib protection.

[MineralMan]

19. All those, too.

But, yes, as I age, I can think of several ways the design could have been improved. Some sort of armor for the testes would certainly be a good thing, although we tend to learn to protect them quite early. But, why not have designed them not to need temperature regulation. Making them work at 98.6 degrees F. couldn't have been that difficult. Consider the ovaries. Still, perhaps that male design element was selected to allow females a means of escape from the stronger males.

[Act_of_Reparation]

20. Ask, and you shall receive...

Evolution of the scrotum: A new hypothesis: https://www.ncbi.nlm.nih.gov/pubmed/2246894

From an evolutionary standpoint, it makes sense. Descended testes aren't necessary for survival (e.g. birds and reptiles), but they can be helpful. Enough to where the benefit outweighs the disadvantage of their potential use as improvised speedbags.

From a design standpoint, they're insipid. Any mechanical engineer worth their salt could have done better. But free will, or something.

[MineralMan]

21. Or, God thought about it and said,

"I know! I'll put them in a little purse for the boys to fondle."

[Act_of_Reparation]

22. Also, if Gawd didn't want us getting vasectomies, he probably should have buried them deeper.

[qazplm135]

29. depends on who is stroking

give me a hot curvy redhead stroking my abdomen and I'm pretty sure I'd be in a stupor.

[MineralMan]

30. I see...

[Voltaire2]

23. Ok but there is growing evidence that

the decisions we do indeed make are not made consciously, that instead they are made unconsciously and we invent a post hoc narrative to provide the illusion of conscious decisions. Our chattering monkey-brain is in effect riding atop an elephant gone amok, trampling through people’s gardens while we call out “yes, I meant to do just that”.

When we have tough choices we “sleep on it”. Why is that?

[Act_of_Reparation]

24. I haven't read the literature...

...so I can't speak to the quality of the research. But I'm not making declarations here, just saying I am willing to entertain the idea of limited free will. Do I think it exists? I dunno. But I don't think it has been ruled out.

[marylandblue]

25. First you need an operational definition of free will

And I don't think "consciousness" is the right definition. Rather, I'd say it's the ability to direct your actions towards emotionally satisfying outcomes. So if that elephant was happily rampaging through the garden, I'd say the elephant has free will and it doesn't matter what the monkey thought.

[Voltaire2]

26. indeed I am going with the more restrictive and common "conscious decision".

and if you wish to use another definition that is fine too.

[qazplm135]

31. actually

my understanding is that our brain makes many (but not necessarily all) decisions subconsciously but then presents it to the conscious mind who retains veto power. In effect, for all but the most complicated decisions, our conscious mind exists to say "no" and nothing more. If our conscious mind doesn't actively stop things, the decision is carried out.

This makes sense a lot of the time. Dodging a threat or danger, spotting a predator, avoiding some harm, etc require split second timing, with no time for the conscious mind to debate it or consider it.

That does not mean that we don't consciously decide other complex things like getting married, getting divorced, taking a new job in a new city, etc.