Re: [asa] Law, Mind, Free Will

From: Murray Hogg <>
Date: Thu Oct 16 2008 - 16:42:13 EDT

Hi David,

It's all very well and good your colleague discussing the striking of old ladies with shovels in the abstract, but I suspect that if it was HIS mother being struck he might himself be moved to use terms such as "evil" or "wrong." Nor, I suspect, would he object to a court using such language in describing such an act. And I doubt he'd see his own loss merely in terms of "undesirable social consequence."

Might I ask the obvious (and I put it as a serious question): if there are no moral rules being broken here, what then is the justification for behavioural modification rather than punishment?

I suppose "undesirable social consequence" would be the defining criterion, but one has to ask whether this simplifies the question in any way. Is it philosophically easier to define the "undesirable social consequence" as opposed to "bad/evil"?

My first approximation to an answer is that one can perhaps define "undesirable social consequence" through the ballot box - it's reducible to a democratic rather than moral question.

I also shudder to think what one does when one can't eliminate an "undesirable social consequence" through behavior modification. If "bad/evil" are not categories, and elimination of "undesirable social consequence" is the sole criterion, then we would seem to be on the worst of all possible slippery slopes.

I'm sure there is a place for debate over "punishment" vs "behavioral modification" in the justice system, but I'm not sure it should start with a denial of the stark raving obvious (by which I mean "undesirable social consequence" is obviously NO basis for an equitable legal system).


David Opderbeck wrote:
> 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 16:43:03 2008

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