Transcript Inleiding in het strafproces en actoren in het strafproces

How much free will do we want?
On neuroscientific challenges to criminal responsibility
26-9-2012
MLP²
Dr. David Roef
The wise old man and the scorpion
A wise man was walking along the river with his
disciple, when suddenly he noticed a drowning
scorpion…..
The wise old man and the scorpion
• How free was the old man to rescue the
scorpion? Did he really have an alternative
choice? Free will vs nature?
• Did the old man rescue the scorpion or was
it his brain?
• Why do we praise/blame the old man and
not the scorpion?
• Why do we approach the man as a moral
agent and responsible being?
On neuroscientific challenges to criminal
responsibility
I. Relevance of neuroscience to criminal law
II. The attack on free will : two problems
a. problem of causal determinism
b. problem of conscious will and legal agency
(disappearing person, subjecticide)
III. Criminal law’s view on free will and responsibility
- what is necessary for responsibility?
- scientific perspective vs legal perspective
IV. Problem of conscious will and legal agency
- we don’t blame brains, but persons
I. Relevance of neuroscience to criminal law
• Internal relevance/challenge:
- we accept the general coherence and
legitimacy of current legal doctrines and practices
- but allow doctrinal reform within the system,
e.g. insanity defence, neuro-evidence, use of deep
brain stimulation
- translation problem from science to law
• External relevance/challenge:
- basic concepts and legitimacy of the system are
challenged: free will + responsibility debate
Dutch examples of internal relevance
• 2000-2010 cases: neuro info used to answer queeries about
- intent (12)
- negligence (6)
- premeditation (2)
- accountability/insanity defence (43)
- Neurological assesment epileptic driver (Alkmaar 2010: LJN
BN7251)
- No premeditation due to frontal syndrome (Den Bosch
2007: LJN BB2861)
- Diminished responsibility sexual assault minors – frontal
dementia (Alkmaar 2008: LJN BK5962)
- Sleep walking attempt to manslaughter ( Zutphen 2007:
LJN BB7529)
II. Neuroscientific attack on free will
Two main problems of free will
- Problem of causal determinism (neurocalvinism)
- is free will/responsibility possible if determinism is true?
= the old compatibilism question
- Problem of mental causation and agency
- am ‘I’ the source and cause of my actions
- do my conscious intentions cause my actions
= the new neuroscientific challenge
(Libet, Wegner, Lamme, Swaab)
A. The problem of causal determinism
• Which ‘free will’ is under attack?
• Libertarian view on free will= causal control
• The capacity to choose otherwise without any internal
and external factors or circumstances
• Two main conditions for such a free will
a. principle of alternative possibilities
there must be something to choose
determinism
b. ultimate source principle
‘I’ am the uncaused cause of my choice
causalism
The (old) problem of causal determinism
• Benedictus de Spinoza (1632-1677)
“We think we have a free will because we are
aware of making choices, but we are not
aware of the causes behind our choices”
free will is an illusion of our self-consiousness
• Arthur Schopenhauer (1788-1860)
“I can indeed do what I wil, but
can I will something else
than what I will?”
Is my will free?
BUT is this THE neuroscientific challenge?
• Science cannot really proof causal determinism
• Science cannot proof free will as it works already
within a deterministic and mechanistic (timespace-causality) paradigm
• Indeterminism (quantum mechanics) is not a
relevant alternative to save libertarian free will
• Experiments (Libet) don’t say anything about
determinism, but confirm causalism:
my intentions are not the direct source of my actions,
but are preceded by neurological processes
B. Problem of conscious will/agency
Neuroscientific challenge is not about determinism but
more about
- mental causation and agency
- the illusion of conscious will
= do my conscious intentions really ‘cause’
my actions, or are they post-hoc rationalizations?
“Conscious will … is an indication that we think we have
caused an action, not a revelation of the causal sequence
by which the action was produced” (Wegner)
III Criminal law, free will and responsibility
• Is criminal law based upon libertarian free will?
• NO: such a free will is even conceptually difficult to
imagine: how can we be an unmoved mover?
• Law is normative functionalism and based upon reasonresponsiveness: being guided by reasons
• causal control vs capacity control (Dworkin)
• Causal control = empirical, objective view
• Capacity control = normative, intersubjective view
• Relevant are mental capacities (rationality) and not
metaphysical free will (compatibilism)
Psycholegal error: why causes don’t excuse
• Each time we discover a cause for behavior, we may
wrongly conclude that the agent is not responsible for
the behavior
• But if causation were an excuse, no one could ever be
held responsible for any behavior
• The ‘truth’ of causal determinism is not an excusing
condition...so, what is?
the lack of mental capacities required for
moral agency...and this is a normative issue
Neuroscientific causal explanation does not per se
excuse, but may provide evidence for it
IV. Problem of conscious will/ agency
• Can we reconcile responsibility with the claim that my
conscious intentions are not the cause of my actions?
• Short term or long term intentions?
• Some conceptual/philosophical critique (Prof. Slors)
• Isn’t this neuro-claim (implicitly) based upon a neoCartesian ‘self’?
• The implicit jump from conscious to free will?
1. I am my consciousness
2. My consciousness does not determine what I do
3. Hence: I don’t determine what I do (and am not free)
But am I only my conscious self?
Pitfall of neo-Cartesian dualism
• Although NS is materialistic, the research is presented
in a dualistic way (mind/brain vs. body)
• One starts from a 17th century agency-theory, which
is subsequently empirically denied
• In stead of denying free/conscious will, the legitimate
conclusion should have been that the libertarian
premise upon which free will is based seems to be
wrong.
• Shouldn’t we understand our ‘self’ in a different way
• Freedom is not the ability to act indepedently from the
body, but in accordance with one’s goals and values
We are more than our consious self
• Cartesian equation of ‘I’ = my conscious self:
Is this really how we look at ourselves?
• In daily practice we often take responsibility for
situations where our ‘self’ is not conscious
(ex. speaking, playing music, sports, driving car)
• Dynamic feedback between conscious and unconscious
processes
• But also: some conscious actions we don’t really
consider to be our own (duress, some disorders)
• Is conscious/unconsious a good distinction?
In law we don’t hold brains responsible but persons
• Pitfall of naturalistic reductionism subjecticide
• In criminal law we attribute responsibility not
even to a human being (of flesh and blood)
but to an artificial construct of a subject to
law
• The freedom in criminal law is a
normative, protective, virtual freedom,
not an empirical one