Re: [asa] Law, Mind, Free Will

From: George Murphy <>
Date: Fri Oct 17 2008 - 09:22:59 EDT

David, Merv, et al.

There are several angles from which the "law, mind, free will" topic can be approached, but permit me to point out that the point I was trying to make in my earlier post (below) seems to have been missed. Even if one is a "reductionist" & believes that questions about free will &c can be answered by the "hard sciences," those sciences are opposed to a hard determinism. This doesn't mean that we must claim that quantum or chaos theory "proves" free will or, for that matter, admit that the older physics disproved it. So even if, for the sake of argument, one accepts reductionism, or metaphysical naturalism, or "science ueber alles," or however it may be phrased, none of those extreme positions can be claimed in support of a claim that human beings no choice about what they do - IF one pays serious attention to what science actually says.

  ----- Original Message -----
  From: David Opderbeck
  Sent: Friday, October 17, 2008 9:07 AM
  Subject: Re: [asa] Law, Mind, Free Will

  Merv, the interesting thing is that the trend in scholarship that deals with public affairs, certainly in legal scholarship, is towards seeing this view of humanity as scientifically determined. It's a bit too easy to hermetically seal off methodological naturalism from metaphysical naturalism when we talk in-house about ID. The reality in the social sciences and law is that the methodology is informed by a metaphysic.

  On Thu, Oct 16, 2008 at 9:59 PM, <> wrote:

    Maybe Lewis' musings on this are out-of-date as well, but this all reminds me of
    his "Abolition of Man" --the indignity (inhumanity) of anyone being denied the
    human right to actually be *responsible* for their actions. Lewis paints
    Orwellian visions of "rehabilitation centers" from which unfortunate parties
    (future Christians?) will only emerge after they have been relieved of any
    offending sensibilities as determined by the controlling elites of the day.

    I am glad that such questions are mostly safely beyond the reach of science, and
    I hope not too many others in power think the same way as your colleague does,


    Quoting George Murphy <>:

> 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.
> Shalom
> George
> ----- 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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  David W. Opderbeck
  Associate Professor of Law
  Seton Hall University Law School
  Gibbons Institute of Law, Science & Technology

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Received on Fri Oct 17 09:23:21 2008

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