Re: [asa] Law, Mind, Free Will

From: David Opderbeck <>
Date: Fri Oct 17 2008 - 22:32:14 EDT

Yeah -- I really just wanted to smack the guy and say "sorry, couldn't help

On Fri, Oct 17, 2008 at 9:25 PM, Merv <> wrote:

> I had understood (and agreed with) your point, George, even though I didn't
> respond to it --sorry. I don't think science (for any of the various
> reasons you list) will ever refute or even properly address free will. But
> that doesn't stop people from acting on their metaphysical assumptions as
> David O. suggests. In this case the metaphysical assumption they act on is
> that all decisions are reductionistically explainable in principle (even if
> science never reaches it or even if their definition of science is warped
> enough to allow for such), and they therefore think that *responsibility* in
> any true sense is a negated artifact. Or at least they operate as if it
> were already shown (by science, of course).
> Your point about the metaphysic informing the method is well taken. Yet,
> can I presume, David, that they don't *really* buy into that during the
> affairs of their own daily lives? They may attempt to maintain that
> hermetic seal around that philosophy in their intellectual lives or their
> law philosophy, but I doubt they would pat their own children on the heads
> and shuffle them off to the clinic for meds and therapy the moment they
> caught them cheating or lying. (On the other hand, maybe some people
> really do that!!? --or maybe we all do this in part?) If so, then what a
> crippling trait this metaphysic is! Every time I want to improve
> something about myself or stop doing something bad, I would consider myself
> helpless to make any decision and be forced to look instead to the
> pharmaceutical and psychiatric institutions for every trivial
> "correction". And presumably, being unable, to rationally enlist myself
> into those programs, I couldn't even make that decision for myself and
> .... well, that is exactly where Lewis went with it. Do these people
> actually think through the logical consequences of their world view? We
> do shuffle children off for drugs if they have an attention deficit in the
> classroom. But imagine if we teachers decided students aren't really
> responsible in any meaningful sense. If Suzy is disruptive in class, I
> don't have to ask her to quiet down then. I can just reach for my
> tranquilizer gun, right? Since she isn't responsible and can't help
> herself anyway. And forget teaching her math. If it doesn't come
> naturally to her, then, well --that's just the way the chemicals fell! I
> wonder what some of your colleagues would think if we teachers adopted their
> metaphysic with their children? I'm with George on this ---I thought
> Skinner's behaviorism in its extreme form was long gone and dismissed by any
> seriously thinking person --and far beyond rescue by science.
> --Merv
> George Murphy wrote:
> 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.
> Shalom
> George
> ----- Original Message -----
> *From:* David Opderbeck <>
> *To:*
> *Cc:*
> *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,
>> David.
>> --Merv
>> 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

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 22:32:55 2008

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