The Likelihood of Determinism, and the Normative Values of Retributivism in Justice

Posted: December 15, 2012 in Uncategorized


         A hotly debated topic amongst philosophers and neuroscientists that some propose is pivotal for the criminal justice system is the likelihood of determinism. If the evidence for materialist determinism as presented by science is accepted then notions of free will as we know it could begin to disappear. The erosion of such a crucial and culturally engrained belief could lead to changes in the reasons why we seek to serve justice and mete out punishment. Some argue, and I intend to as well, that accepting determinism pulls the moral rug from beneath the feet of the largely retributivistic criminal justice system. If this becomes a more popular idea, then the folk justice upon which our law rests may take on more consequentialist characteristics. A controversial article written by Joshua Greene and Jonathan Cohen, For the law, neuroscience changes nothing and everything, lays out a concise framework from which to carry out the argument. Where some detractors have made their cases against points raised by both Greene and Cohen, I will argue in defense of the article. Within the debate there has been some delineation with regards to how determinism actually renders the moral impetus for retributivism defunct, and in my argument I hope to establish some stability to the moral implications that determinism points us toward. There is a short, but sometimes confusing causal process that occurs from brain states to moral culpability that require some clarification and definition in order to establish that the position of retributivism has some significantly moral problems to address. If this is not enough, I will briefly appeal to the folk tradition of law, and how that can begin to change within a new climate where neuroscience may have an effect on what we consider to be mens rea and the capacity for guilt.

Hard Determinism

            Most people are familiar enough with physics to know that every effect must have had a cause, which must have been caused by something else that was caused by something before it, ad infinitum. It’s this simplistic yet stable epistemological fact that guides the theory of determinism. Cohen and Green rehash Peter Van Inwagen’s (1982) initial formula: “Determinism is true if the world is such that its current state is completely determined by (i) the laws of physics (ii) past states of the world,” (p1777). This theory of determinism was notably hashed out by Pierre Simon Laplace in the early 19th century.[i] If it was possible to know the state of the entire universe and all the trajectory of matter at any given time, then the future of that moment will be as clear as the past. This includes the neural workings of an individual’s brain. The more neuroscience maps out and predictably forecasts the materials of our brain, the more it will become possible to foresee our behaviors.[ii] If actions become predictable based on neural patters and brain states then it seems like our brain may be making decisions without our “consent”. In other words, it is not the conscious rationality that humans attribute to themselves that are making the decisions, it is the neurophysiology of our brain that does it and the conscious selves are just along for the ride.

    Libertarianism or Radical Free Will

             The argument from a libertarian view of free will rests solely on intuition. It feels like we have free will; so much so that it becomes absurd to imagine otherwise. In fact, the vagueness of the issue is expressed when Greene and Cohen give Van Ingwagen’s two criterions for determinism (physics and past states) and says, “Free will…requires the ability to do otherwise,” (p1777). This forces us to question what this would look like and where it would come from. All of the deterministic mechanisms in the universe are in full effect, guiding all of life around us and in us, until a moment when something unaffected by the causal process can decide to not abide by the rules of causality (physics). The “ability to do otherwise,” or to have done otherwise, sounds practical but it skirts the issue. To be able to claim that a person was able to do other than one had chosen to do is to analytically say, “had I chosen to do otherwise, I would’ve done otherwise” (Harris p20). The ability to have done otherwise ultimately lies on the causal process in a separate hypothetical universe where “otherwise” had been done. To merely posit the potential for an alternate scenario doesn’t make it more possible (or as Daniel Dennett would call it: evitable). Another libertarian option might be to imagine that radical free will would be possible if a “soul” of sorts was involved, in that it would be a non material locus for free will to arise from. This only serves to beg the question of interactivity between the entity capable of free choice and the deterministic matter that is ticking along as planned inside the material brain. Additionally, if there were a soul that was making decisions prior to conscious awareness of the process, which causally affected brain states and there by incurred an action, then we would find ourselves in the strange predicament of giving moral agency to a soul and not the person.[iii] All this to say, we have to embrace the cultural function of this radical notion of free will because it is so culturally accepted and simplistic in its utility that it serves, at least partly, as the foundations for criminal justice.[iv]

 Incompatibilism and the Compatibilist Misdirection

            Both hard determinism and libertarianism are incompatibilist views in that either one or the other is true and there can be no crossing over with regards to free will, just as the designation suggests. Compatibilism however, maintains that the universe (our brains included) is largely deterministic but that doesn’t necessarily rule out the phenomenon of free will. The instances of free will, according to compatibilists, are just as real as we often feel them to be and can be scientifically defended. This is the prevailing view amongst most philosophers still arguing for the existence of free will but it just takes on a slightly different shape than what is culturally understood. When someone chooses door number one or door number two, the decision is freely made as long as there are no external or internal forces causing that person to act against their own volition. Free will for compatiblists, still exists in the sense that the physical organism of a human is free to make choices ante-conscious awareness and presumably the consciousness becomes aware afterwards. In other words, if you are acting in accordance with your desires, there is no reason to believe that this is not free will.[v] This effectively combines what is typically viewed as the mind/body problem into one neat package where the physiology of the brain issues a freely chosen command and our conscious selves are ever consenting under normal conditions. Even in the case where a person is said to have changed their mind, is still a case where the brain caused the switch in preference, which was dutifully reaffirmed by the consciousness. This, according to compatibilists, seems to allow for room for a narrow sense of freedom, but the “will” part appears to come afterwards. It merely affirms that no one makes actions against their own will. At least one notable neuroscientist, Sam Harris responds to compatibilism with the obvious: “people claim greater autonomy than this. Our moral intuitions and sense of personal agency are anchored to a felt sense that we are the conscious source of our thoughts and actions,” (Harris, p16-17). The reason why compatibalism doesn’t resonate with us is because it affirms that choices are being made freely, but not in the way most people want. The consciousness still has little to no control over the decisions.

Compatibilism seems like a viable option but there is ambiguity as to what qualifies as an external or internal source of prohibition, as its criteria points out. According to Greene and Cohen there are agreed upon psychological conditions that at least limit or negate free will. These conditions could include infancy, mental disabilities, or physical aberrations such as cancers or growths in the brain. I challenge this clause to compatibilism because it appears to be an arbitrary if not blurry threshold to cross when determining whether or not someone acted in their own free will. Whether any physical state of the brain be it abnormal or statistically average, can be cited as being the origin of a decision making process then we can point and say, “that is internal force inhibiting freedom of will.” Sam Harris writes, “A neurological disorder appears to be just a special case of physical events giving rise to thoughts and actions. Understanding the neurophysiology of the brain, therefore, would seem to be as exculpatory as finding a tumor in it,” (Harris, p5). If determinism is true, as compatibilists allow, then the ability to point to any source of origin for a decision is to link the causal process from material, to brain state to action, without invoking the consciousness. The consciousness is what validates the decision after the fact. “A puppet is free as long as he loves his strings,” says Harris of compatibilism (Harris, p20).

 The Role of Retributivism

            For nearly 50 years, Retributivism has seated itself as the moral impetus for inflicting state sanctioned violence, also known as criminal punishment. The retributivist view sees punishment as a moral good, or at least a moral duty. Retributivists point at the infraction that a criminal committed, and says that because it was a conscious decision to cause harm, then harm must be inflicted back. The moral constraints of all versions of the retributivist position run as follows: (i) all criminals must be punished (ii) all punishments must be inflicted on the guilty (iii) the punishments should be equivalent to the crime committed. The issues raised by hard or strict retributivism are not on the table here with regards to how to fit the square peg of this high moral standard into the round hole of a reality where scarcity and error is inevitable. What is at issue is the moral platitude of retributivism. It is a morally based standard of judgment and, notably not a prescription for how to punish.[vi]

            Cohen and Greene frame retributivism as a normative suggestion for moral responsibility that is ultimately reflected in the law. They write, “We argue that the law’s intuitive support is ultimately grounded in a metaphysically overambitious, libertarian notion of free will that is threatened by determinism and, more pointedly, by forthcoming cognitive neuroscience,” (Cohen, Greene, p1776). For them, retributivism requires a libertarian view of free will because in order for a person to be blamed for their actions, they must fit the criteria for blameworthiness. As I will soon explain, these criteria are somewhat unclear. Cohen and Greene write, “Retributivists want to know whether the defendant truly deserves to be punished. Assuming one can deserve to be punished only for actions that are freely willed, hard determinism implies that no one really deserves to be punished,” (Cohen, Greene, p1777). Essentially this means that if either determinism or compatibilism are true, then a person is not culpable for the reasons in their actions. Only under a libertarian view of free will, where all thoughts and considerations are made at the time of the decision making process, can a person be said to be blame worthy.

 Consciousness, Rationality, Moral Agency, and Mens Rea

            Naturally, the core issue at hand is whether or not someone without libertarian free will can be held responsible for their actions. If the consciousness and rationality employed by a person is able to weigh the morality of a certain decision, namely a potentially criminal one, then we would be able to hold that person accountable for the action. However, due to the rising tide of scientific evidence that says that determinism or perhaps compatibilism is probably true, then how can we attach blame to the consciousness of a being that had no bearing on the criminal act in question?

            The parameters of consciousness and rationality ultimately frame the way a person is considered to be a moral agent. A moral agent is a being that can consciously make choices based on valued judgments with moral consequences. Consciousness refers to a high level of cognitive awareness. Libertarianism would offer the opportunity to be responsible for our moral actions to the fullest extent if consciousness were present at the advent of the decision making process. This seems to require a level of objectivity in consciousness, of which a materially tethered consciousness is incapable. We have good evidence from fMRIs (Functional Magnetic Resonance Imaging) that show that conscious awareness isn’t present in the decision making process, which also renders the radical free will concept implausible. This is why experimentees are shocked when the experimenters can almost always predict the outcomes of their decisions. Compatibilism suffers from almost the same problem. It would view this definition of moral agency problematic as well. If free will is expressed sans consciousness, then the moral choices aren’t made vis a vis moral agency. While it might be possible for a moral decision to be made, a being would be unaware of its initiation until your brain had committed to something—the consciousness is an unwitting stooge, a yes man. For determinists, there’s no free choice, and conscious consent to the brain’s course of action would be a non sequitur. At this junction, as moral agency is demystified, so is the most prominent source for moral culpability.

            Rationality represents its own set of issues that must be addressed as it is reflected in the law as being part of the criteria for culpability.[vii] Psychologist Stephen Morse submits the importance of rationality in the moral justification for law: “Unless people were reasonably capable of understanding and using legal rules and premises in deliberation, law would be powerless to affect human behavior and it would be unfair to hold them responsible,” (Morse p2). He then presupposes some conditions under which this might be the case. Ignorance of the law or simple incapability to understand it would mean that responsibility would not fall on the offender. However, the notion of rationality plays a strange role if determinism as I suppose, is true. The capacity for competency in law and the affects of breaking it would hinge on the prior deterministic conditions of that persons life. Of course this would be out of their control. Some people would be deterministically exposed to breaking the law even prior to their rational comprehension of it. More importantly, the deterministic process may also override the override rational deliberation.

Greene’s and Cohen’s Mr. Puppet is a prime example of carefully constructed factors that would lead an unwitting person inexorably to a life of crime. In their thought experiment, a scientist carefully and precisely influences a person from birth until the moment the experiment ends with the goal of creating a desired type of criminal. As the result, when Mr. Puppet murders someone, the scientist claims that he and not Mr. Puppet was in control of the events including and leading up to the crime. Intuitively, this strikes us as correct. It seems like the excusing conditions in the law for coercion. Mr. Puppet was unaware of all the factors involved, and when they come to light to the citizens and thereby the law, the inclination would be to excuse him. For Cohen and Greene, the law generally reflects that the premise of radical free will is the basis for retributive punishment. Michael S. Pardo, law professor at the University of Alabama opposes this conclusion. He says, “Even in a world of physical determinism, [retributivism] may be grounded in the control people have over their actions though the exercise of their practical rationality. If people act for reasons—more generally, if they act on basis of their beliefs, desires, and other mental states—then we can blame or praise their actions (in light of their mental states),” (Pardo p17). This should immediately raise a red flag. One’s mental states, even in a Mr. Puppet paradigm where libertarian free will potentially exists, are built upon the influences created by the invasive control of the scientist. Pardo’s philosophical objection appears to be just flat out wrong. In the end rationality occurs after the groundwork is laid for a criminal to be predisposed to crime, and their attitudes toward it and moral factors.

Mens rea or “guilty mind” is a central part of the criminal justice system. Its existence as a term in law reflects that there is an obvious correlation between one’s mind and one’s actions. The tricky part about mens rea is its surprising ambiguity.[viii] The term refers to the intentionality, competence, and rationality that are reasons for a criminal action but the characteristics of what could fall into mens rea tend to be partially normative and largely subjective in nature. They all are inextricably attached to culpability though. According to the University of Pennsylvania Law School’s Encyclopedia of Crime and Justice, “the [Model Penal] Code defines four levels of culpability:  purposefully, knowingly, recklessly, and negligently,” (Robinson p999) when referring to the mind state that accompanies a criminal action. All four of these states require a capacity for a mind to be guilty. I intend to amend the definition of mens rea with the minimal characteristic of capacity for culpability. A guilty mind can only be guilty if it has the capacity to be guilty. In assigning culpability, as I have hoped to have already explained, there must be conscious and rational deliberation unencumbered by deterministic factors. Culpability requires both consciousness and rationality at the level of moral deliberation. This is what it means to say that if determinism is true, then culpability/blameworthiness/mens rea cannot apply to criminals (or anyone for that matter). Herbert Morris expresses this as a criterion for what it means to be guilty in the eyes of the law: “The absence of a requisite culpability state or one’s fair opportunity to behave otherwise than one did, precludes guilt,” (Morris p64).

            The objections raised by Morse and Pardo with regards to culpability, I submit are misguided. Morse raises this objection to Cohen and Greene:

Responsibility has nothing to do with “free will” even though legal cases and commentary concerning responsibility are replete with talk about it. Nor is the truth of a fully physically-caused universe (sometimes referred to as “determinism”) part of the criteria for any legal doctrine that holds some people nonresponsible. Thinking that causation itself excuses, including causation by abnormal variables, is an analytic error that I have termed the fundamental psycho-legal error. All behavior may be caused in a physical universe, but not all behavior is excused, because causation per se has nothing to do with responsibility. For example, many variables caused you to be reading this article now, but you are perfectly responsible for intentionally reading it. Reading it is presumably not evidence of incapacity for rationality or compulsion. If causation negated responsibility, no one would be morally responsible and holding people legally responsible would be extremely difficult.[ix]

Cohen and Greene have a response that I’ll refer to momentarily, but as per my own argument, I submit that he is absolutely right insofar that he links responsibility to intentionality. One’s deterministic brain state intentionally causes that person to commit an action, but the “evidence” of the intentionality stemming from rationality as I have described it, is virtually absent. Again, the compulsion to do something (intentionality) is antecedent to conscious, rational, deliberation. So perhaps one might be responsible for committing an action so far as they were involved in the committing of it, but they are not morally culpable.

                 Cohen and Greene respond to the first part of the above quote by Morse by addressing the official legal language of responsibility. They agree that this is the current state of affairs in the law but that the law itself is predicated by a popular consensus. They write, “The legitimacy of the law itself depends on its adequately reflecting the moral intuitions and commitments of society. If neuroscience can change those intuitions, then neuroscience can change the law,” (Cohen, Greene p1778). In a nutshell, this sets the precipice for a revolution in the way the law, and criminal punishment is carried out. It is only a matter of how far away society is from that tipping point.


Normative Flexibility in the Law


            Our morality if value driven. By and large, people intuitively feel that we have free will because it is misleadingly apparent that is the case. It is also easy to cobble together a system of laws and criminal punishment around the concept of free will. Even more recently: it is easy to base a retributive theory of justice on the behavior of those who consciously make decisions that result in harm. However, neuroscience and philosophy is growing near the threshold of indictment from suspicion on whether free will is a plausible view of the world in which we function. The expectation for neuroscientists like Sam Harris and criminal law theorists like Joshua Greene and Jonathan Cohen, is that the scientific findings regarding the likelihood of determinism will spread into populace. There may be serious philosophical ramifications for this phenomenon that reach beyond the scope of this paper, but at least one fundamental social construct must adapt to a newly prevailing theory of determinism: the law.

            As I have quoted Cohen and Greene at the end of the previous section, others appear to agree. Herbert Morris’ paper Decline of Guilt is practically a love letter to the marriage of normative values with the law. If our intuitions about guilt change, so must the law in reflecting that change. He writes dramatically of a proposed schism between the two, “Widespread disaffection among the popular from the norms or lack of belief in the legitimacy of tribunals established to judge people would transform the legal practice into one in which individuals with power merely enforced their will upon others,” (Morris p66). Professor Pardo states, “The United States Supreme Court has also explained that, as a matter of constitutional law, the federal and state governments may as a general matter rely on multiple justifications for punishment,” (Pardo p2). This allows for the law to have a smorgasbord of moral justifications to choose from, implying flexibility and reflection of an evolving culture. Later on Pardo critiques the Cohen and Greene article on the same ground saying that popular opinions of justice aren’t sufficient to change punishment decisions.[x] This is as if to say that the government has abilities that it won’t ever avail, despite good reason. For Morse, in spite of his skepticism he admits, “Legal rules do, of course, change in response to evolving principles and new scientific discoveries,” (p5). This has become true for gay marriage most recently. While neuroscience may be a long way away from convincing the people and thereby the law to be changed, that doesn’t mean it won’t ever happen.

            By the popularity of the notion of free will, which is likely to be an incorrect account of our role in reality, and how it is reflected in retributivism and the criminal law, we can see that an inaccurate idea can proliferate. It seems to me that even if determinism was not true, that neuroscience could feasibly make a strong enough pitch to the citizens of the United States that could influence the way we do criminal justice. The added bonus of course, could be increasing technological advanced that would bolster the evidence for determinism. Our notions of moral agency, guilt, and just deserts might end up being irrevocably changed.


            After clarifying how free will, determinism, and compatibilism represents human intentionality in the world, it becomes apparent that there is a disparity between our moral accusations and our actual capability as moral agents. I have contended that because all cognitive events stem from the physiology of the brain, that it is evident we live in a deterministic world. In this account of a deterministic world, and corroborated by studies, decisions are made prior to consciousness and rationality. Consciousness and the ability to be rationally weigh moral decisions are the foundations for moral agency and culpability. If decisions are made in the brain, prior to conscious awareness and rational consideration of it, then it would appear that culpability and blameworthiness are no longer traits that we can attribute to human beings. People may be intentional, and they may have reasons for their intentions, but both of these events arise prior to conscious awareness and deliberation. The law enacts several different modes of enforcement deriving from folk conceptions of law. This makes it a flexible enterprise. The discoveries of neuroscience, neurophysiology and philosophy could begin to influence a larger swath of the population into having pity on criminals who, through no fault of their own, were lead down a maleficent path. This does not mean that we cannot effectively punish or remove the threats to the rest of society from the greater population. It does mean that the moral impetus of retributivism cannot be applied insofar as taking revenge upon a person who could not have done otherwise intuitively feels like an unsavory state of affairs. If we are to treat people as ends in and of themselves, then we have a greater responsibility to evaluate the brain states that comprise moral agency and standing.

[i] “We may regard the present state of the universe as the effect of its past and the cause of its future. An intellect which at a certain moment would know all forces that set nature in motion, and all positions of all items of which nature is composed, if this intellect were also vast enough to submit these data to analysis, it would embrace in a single formula the movements of the greatest bodies of the universe and those of the tiniest atom; for such an intellect nothing would be uncertain and the future just like the past would be present before its eyes.” P. Laplace, 1902. A Philosophical Essay on Probabilities. Wiley, p. 4


[ii]C.S. Moon, M. Brass,  H.J. Heinze, J.D. Haynes, 2008. Unconscious Determinants of Free Decision in the Human Brian. Nature Neuroscience.


[iii] “The unconscious operations of a soul would grant you no more freedom than the unconscious physiology of your brain does. If you don’t know what you soul is going to do next, you are not in control.” S. Harris, 2012. Free Will, Free Press, p. 12


[iv] “However, we argue that the law’s intuitie support is ultimately grounded in a metaphysically overambitious, libertarian notion of free will that is threatened by determinism and, more pointedly, by forthcoming cognitive science,” (Greene, Cohen p1776)


[v] “Compatibilists generally claim that a person is free as long as he is free from any outer or inner compulsions that would prevent him from acting on his actual desires,” (Harris, p16).


[vi]  Michael Cahill opens up his essay on applying retributivism in the real world. As utilitarian consequentialism offers a complete theory of justice in that it is both prescriptive and justificatory, “By contrast, retributivism, which adopts a backward-looking perspective focusing on the moral duty to punish past wrongdoing, is a justificatory theory, but seemingly not a prescriptive one,” (Cahill, p818)


[vii]  “Rationality is the touchstone of responsibility. Only agents capable of rationality can use legal and moral rules as potential reasons for action. Only by its influence on practical reason can law directly and indirection affect the world we inhabit,” (Morse, p2).


[viii] “For a phrase so central to criminal law, mens rea suffers from a surprising degree of confusion in its meaning. One source of confusion arises from the two distinct ways in which the phrase is used, in a broad sense and in a narrow sense. In its broad sense, mens rea is synonymous with a person’s blameworthiness, or more precisely those conditions that make a person’s violation sufficiently blameworthy to merit the condemnation of criminal conviction,” and then the second sense: “The moden meaning of mens rea, and the one common in legal usage today, is more narrow: mens rea describes the state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense,” P. Robinson, 2002. Encyclopedia of Crime & Justice. University of PennsylvaniaLawSchool, p995. For my arguments both definitions are useful. The broad sense can apply to the trait by which most people often attribute to or utilize in their accusations on a guilty party. The second definition focuses on a specific behavior that categorizes the level of intent enacted by the guilty party in the framework of the law. All of those behaviors I submit are out of the control of the conscious person.


[ix]  (Morse, p9) I feel compelled to add that the last line of the quote seems to be an example of circular reasoning. It’s as if Morse is proposing that we must attribute responsibility to causal processes if for no other reason than we wouldn’t be able to hold anyone responsible for anything. Maybe that is true!


[x]  “Although lay intuitions may be relevant to reform, and some agreement between punishment and lay intuitions may be necessary for the legitimacy of punishment, accord with the intuitions of most people in not sufficient to justify decisions. It is possible for widely shared intuitions about what is just punishment to be mistaken,” (Pardo p15).  This is of course, my accusation of the retributivistic impulse.



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