Re: [asa] Law, Mind, Free Will

From: Freeman, Louise Margaret <>
Date: Thu Oct 16 2008 - 16:20:49 EDT

I may be biased, coming from a biological/cognitive/neuroscience background,
but I'd say the strict behaviorist approach you descrbe is a dying breed in
modern psychology. I taught my first course in forensic psychology last year
and am doing a lot of reading to prepare for an honors class I'm
team-teaching with a philosophy prof on human morality and the implications
of neuroscience and evolutionary psychology research in that area. I just
finished Hauser's Moral Mind and have begun Gazzaniga's The Ethical Brain.

Experiments in moral judgment are a very hot topic in research right now and
its quite clear that the capacity to discern another person's intentions
plays a huge role in the development of moral reasoning.

There is a world of difference between someone who hits an old lady
intending to injure her versus someone who accidentally strikes her when she
walks behind him in the garden versus someone who uses a shovel to sweep her
out of the path of an oncoming bus, even if the cases result in comparable
injuries to the unfortunate woman. I don't see how methodological naturalism
or experimental science based on that methodology impairs the ability to
discern between those acts.
Louise M. Freeman, PhD
Psychology Dept
Mary Baldwin College
Staunton, VA 24401
FAX 540-887-7121

-----Original Message-----
From: "David Opderbeck" <>
To: ASA <>
Date: Thu, 16 Oct 2008 15:39:17 -0400
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
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 16:22:59 2008

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