[asa] Law, Mind, Free Will

From: David Opderbeck <dopderbeck@gmail.com>
Date: Thu Oct 16 2008 - 15:39:17 EDT

We had a fascinating talk at the law school today by a lawyer who is a
behavioural psychologist. His perspective was that we should no longer
include any aspects of "punishment" in criminal law because the notion of
"mens rea" -- that an intentional mental state is required for an act to be
"criminal" -- is unsound. Our mental states, he argued, arise from
deterministic processes. "Mind" and "will" are emergent properties but they
exert no independent downward causation. Therefore, it makes no sense to
"punish" someone for having "bad intent". The only thing the criminal
justice system should focus on is behavioural modification that will prevent

In a conversation after that talk, I asked him if most people in his field
take the assumption that there is no independent human "mind" as a
methodological or a metaphysical limitation. He said this is the
metaphysical view of most people in his field.

Here is a concrete example, outside our in-house debates about ID, in which
methodological naturalism has important, and in my view terrible, social
consequences. We cannot really say that a criminal act -- say, hitting an
old lady with a shovel (an example he used) -- is an "evil" or "wrong" act
that a system of justice should inherently condemn. All we can say is that
hitting old ladies with shovels has some undesirable social consequences
that the criminal justice system might be able to mitigate through
behavioural engineering. In fact, this isn't simply "methodological"
naturalism, it's a metaphysical judgment about the nature of "justice."

David W. Opderbeck
Associate Professor of Law
Seton Hall University Law School
Gibbons Institute of Law, Science & Technology
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Received on Thu Oct 16 15:40:23 2008

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