Re: [asa] Law, Mind, Free Will

From: George Murphy <>
Date: Thu Oct 16 2008 - 16:01:15 EDT

I thought B.F. Skinner was dead. He had some slight excuse for believing in Laplacian determinism since quantum theory hadn't had much of an impact beyond physics when he was being educated & chaos theory had not yet been invented. Nowadays talking so casually about determinism is like believing in phlogiston.

& that's only for starters.

  ----- Original Message -----
  From: David Opderbeck
  To: ASA
  Sent: Thursday, October 16, 2008 3:39 PM
  Subject: [asa] Law, Mind, Free Will

  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 recidivism.

  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 16:01:57 2008

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