Task 2

Question 1

Why can the defence in the Kenneth Park case be called in criminal law and ‘automatism defence’ and not just a justification or an excuse?

Answer 1

Actus reus requires a voluntary act, but in the Kenneth Parks case he did not act voluntary. So there is no actus reus. Therefore, there is no in the first place criminal responsibility and hence no justification or excuse is necessary.

Question 2

Some neuroscientists may argue that in the end we are all like Kenneth Parks. What do they mean by that and why do they say that?

Answer 2

They say that free will is an illusion and that our actions are merely the consequence of prior causes, of various events that occur at the neural level. Therefore, we are all merely mechanistic controlled by prior causes beyond our control. We all cannot be held responsible for our actions.

Question 3

Some neuroscientists deny free will. But what is (philosophically speaking) free will?

Answer 3

Free will: the capacity to choose otherwise without any internal and external forces or circumstances that are beyond your control.

Question 4

What are the conditions for free will?

Answer 4

Principle of alternative possibilities. I can act otherwise. There must be something to choose.

Ultimate source principle (causal control). It is up to me. I am the uncaused chooser of my actions.

Question 5

Is free will the same as the freedom to act as one wills?

Answer 5

No everyone has the freedom to act as one wilss except when they are under duress. But having free will in the first place is another questions.

Question 6

What is determinism? Why is determinism challenging free will?

Answer 6

Determinism: given a set of prior conditions in the universe and a set of physical laws that completely govern the ways the universe evolves, there is only one way that things can actually proceed.

Determinism challenges free will because free will requires the ability to do otherwise. If determinism is true that one does not possess the ability to do otherwise.

Question 7

If ‘indetermisnism’ would be true, do you think this would make any difference?

Answer 7

Indeterminism: belief that no event is certain and the entire outcome of anything is probalistic (random, chance). But indeterminism does not negate causalism.

If brain events are not the result of the past, brain events then have any cause but still lead to an action  are random. So it can be argued that a person still has no free will but is the victim of a will that merely happens to him and which he is certainly not free to adopt or reject  the second condition for free will is not fulfilled: no causal control.

Question 8

What is the basic set-up of the so-called Libet-like experiments?

Answer 8

Libet asked subjects to flick a finger while watching a fast-moving clock and to note the time at which they decided to make the movement. Examining EEG they observed that the RP began approximately 350ms before subjects decided to make the movement. Libet concluded that ‘cerebral initiation of a spontaneous voluntary act begins unconsciously’ although subjects could still exercise conscious control or ‘veto’ over the final decision to act (which is also unconscious though).

Question 9

What are some critiques on the Libet like experiments?

Answer 9

important decisions had already been made before the trials began.

extremely challenging tasks.

divided attention (watching the clock and controlling thoughts/urges)

internal noise

Question 10

Are you convinced that these libet like experiments evidence the illusion of free will?

Answer 10

There is no reason to think that preparatory mental activity in the 10s was unconscious. maybe we do not have free will and conscious agency is an illusion but the Libet experiment offers no warrant for thinking so and it is time to lay it to rest.

Question 11

Please explain the relationship between (the problem of) free will and determinism and the two major theories of punishment: consequentialism (or utilitarianism) and retributivism?

Answer 11

Utilitarianism (consequentialism): - Offenders should be punished in order to discourage or deter future offences. Works with all 3 theories of free will.

Retributivism: Offenders should be punished because they deserve to be punished. Retributivism cannot go with hard determinism since it would require the elimination of all punishment which does not seem reasonable. Intuitively we want to punish those people who truly deserve it but whenever the causes of someone´s bad behavior are made sufficiently vivid we no longer see that person as truly deserving of punishment. Retributivism should require compatibilism.

Question 12

What are the three main philosophical responses to the problem of free will and determinism?

Answer 12

Hard determinism: accepts incompatibility of free will and determinism. Free will and determinism cannot go together (incompatibilism). Determinism is true and rejects free will.
Libertarianism: accepts incompatibilism but denies that determinism is true. Free will and determinism cannot go together. Free will is true and rejects determinism.
Compatibilism (soft determinism): free will is compatible with determinism.
• Free willed action is one that is made using the right sort of psychology (rational, free of delusions). Even if our beliefs, intentions are caused by factors beyond our control, so long as we are rational creatures we can still be responsible for our actions. ‘
• Differences in rational capacity and its effects are real even if determinism is true.

Question 13

In their article Green and Cohen seem to agree at first with Morse’s view ‘that there is nothing on the neuroscientific horizon that it cannot handle’. The reason that the law is immune to such threats is that it makes no assumptions that neuroscience, or any other science, is likely to challenge’. Please explain why they agree with Morse to a certain extent.

Answer 13

Morse argues that the law is not concerned with free will but rather with rationality/reason-responsiveness. The law is traditionally compatibilist. Green and Cohen agree that the law as it is at this moment, is not concerned with free will but rather with rationality and therefore, neuroscientific results do not change anything for the law, as written.

Question 14

In this short interview Morse tries to warn us against what he calls the ‘Brain Overclaim Syndrome’. What do you consider to be the most important statement in this interview? Do you agree?

Answer 14

Brain overclaim syndrome: people accept that we are sometimes responsible for our behavior but nevertheless believe that any brain-based causal explanation of behavior is exculpatory (ontlastend).

Question 15

What is the so-called ‘psycholegal error’? do you think that this is indeed an ‘error’? Could you explain why (not)?

Answer 15

Fundamental psycho-legal error: to believe that causation (especially abnormal causation) is per se and excusing condition.
• Every action is caused by events in the brain and describing those events and confirming their causal effect is not in itself of legal significance.
• Syndromes and other causes do not have excusing force unless they sufficiently diminish rationality in the context in question.
• So causation (determinism) is not and excusing function. But mental illnesses can become an excusing function when they diminish the rationality of the defendant in the context of the crime.

Question 16

Most legal scholars (like Morse) defend a compatibilist position for the law. What are, from a compatibilist perspective, necessary (but also sufficient) criteria for responsibility?

Answer 16

Reason-responsiveness. Capacity for rationality  capacity to understand and be guided by good reason. E.g. a person is responsible for killing someone if he understands that killing is unlawful and that he should act accordingly.

Question 17

Later in their article Green and Cohen argue that the law nevertheless stands on shakier ground than Morse would suggest. What are the main arguments for their view that neuroscience would indeed be able to change some foundations of criminal law? Do you agree with their ‘prophecy’?

Answer 17

• The legitimacy of the law itself depends on its adequacy reflecting the moral institutions and commitments of society
  If neuroscience can change those institutions  It can change the law
• What the law cares about (rationality) and what people care about (was it really him or his upbringing/genes/circumstances/brain)  Not the same
• Prophecy?  The idea that people deserve punishment  Will eventually disappear = Retribution will disappear

Question 18

Could you explain (the relevance of) the ‘Mr Puppet’ thought experiment in the free will and (neuro)determinism debate?

Answer 18

It seems that in a very general sense we are all puppets. Combined effects of genes and environment determine all of our actions. We are no more free than him. He is only exceptional in that the intentions of other humans lie behind his genes and environment. The foregoing suggests that people regard actions only as fully free when those actions are seen as robust against determination by external forces. But if determinism is true then no actions are truly free because forces beyond our control are always sufficient to determine behavior.

Question 19

What critique would you be able to formulate against the position defended by scholars like Morse that our criminal law is not (traditionally) based on libertarian notions of free will?

Answer 19

Current law is not only consistent with compatibilism but also with libertarianism
4 arguments given by Kolber:
1. Historically law is based on libertarianism. Lawmakers for a long portion of history had a libertarian view of free will because of the enlightment, which was about free will. Therefore morse denies to quickly the possibility that the law is embedded with soul-based libertarianism presuppositions.
2. The mere fact that criminal statutes are framed around folk psychological concepts like belief and intention reveals little about the law’s fundamental presuppositions. The law uses terms of beliefs and intentions because they are much easier for us to understand and apply than terms describing the behavior of neurons or the motion of molecules.
3. The law of evidence fails to reveal the law’s fundamental views on free will. Just because judges do not admit evidence that merely shows a person’s behavior was caused, that does not mean that the law is compatibilist. It can also be the case, that evidence is not admitted because of the very fact that law takes the view that human decisions are made with free will and therefore, the evidence showing that actions are caused would be fundamentally inconsistent with that view.
4. Statutes are virtually always silent on fundamental issues of free will. They are not only silent on libertarian free will as a criterion of responsibility but do also not mention compatibilist condition. Furthermore, taking argument 1 in account, it could be the case that libertarian views were simply fundamental to lawmakers while drafting laws and there was no need to mention them explicitly. Contrary, a change of the course of law at some point in time towards compatibilism would likely have been explicitly noted in statutes. Consequently, silence favors the libertarian interpretations of the law.

Question 20

Is the compatibilist view fully capable of responding to some new behavioural, cognitive and neuroscientific challenges regarding reason-responsiveness as a basis for responsibility?

Answer 20

New compatibilism = reason-responsiveness. The ultimate justification of our practices of responsibility lies in our ability to act for reasons. Some people are reason-responsiveness in that they act for reasons they can explain and justify, whereas others are not, either temporarily or more permanently. This is the strength and attraction of the new compatibilist view, no metaphysical trouble such as free will.
Thus, the alleged threat of the BCN-sciences to free will and personal responsibility must be discussed in connection with our ability to act for reasons. BCN-sciences suggest that it is not as obvious as it seems that our ability to act for reasons can serve as an unproblematic basis for our view of free will and responsibility.