Re: [asa] Law, Mind, Free Will

From: David Opderbeck <>
Date: Thu Oct 16 2008 - 16:33:25 EDT

Thanks Louise, I was hoping you'd respond. The guy who presented to us
basically suggested that the notion of "intent" is outdated, particularly
with reference to the *mens rea* requirement in criminal law, because: (a)
it is impossible to discern what is in another person's mind; all such
"discernment" is really a projection of one's own mental state; and (b)
mental states are not really something we can meaningfully describe as

On Thu, Oct 16, 2008 at 4:20 PM, Freeman, Louise Margaret

> 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
> 540-887-7326
> 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
> 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

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 16:33:59 2008

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