Re: [asa] Law, Mind, Free Will

From: David Opderbeck <>
Date: Thu Oct 16 2008 - 16:55:01 EDT

I think most people who take this approach subscribe to some version of
pragmatic consequentialist ethics. They assume public policy should promote
that which produces the greatest utility for the greatest number of people,
without trying to justify why this is "good" in any abstract sense. It may
be "good" simply because it makes people "feel good" and most people prefer
to "feel good" rather than to "feel bad." At the very least, they might
say, it on the whole gives me as an autonomous agent the best chance of
maximizing my own utility, and therefore it is how I express my own

But of course, I agree that this is all circular, reductionistic nonsense.
Yet, such a person would argue that my notion of "the good" is ultimately
equally circular and reductionistic.

On Thu, Oct 16, 2008 at 4:42 PM, Murray Hogg <>wrote:

> 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).
> Thoughts?
> MH.
> 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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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 16:55:34 2008

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