How are we culpable without free will?
What if the concept of free will was scientifically proven to be an illusion? That free will is nothing more than an egotistical construct? We pretend to have control of our reality and the choices we make in their lives, but without free will are we excused from the choices we make? Does personal responsibility disappear? Without personal responsibility, how is anyone guilty of anti-social behavior or mens rea?
Joshua Greene and Jonathan Cohen challenge the concept of free will in “For the law, Neuroscience Changes Nothing and Everything”. Greene and Cohen question the philosophical concepts of determinism, free will, and compatibilist views. They demonstrate through neuroscience that most human behavior is a consequence of physics and chemistry (Greene, & Cohen, 2006). They argue, if behavior is the result of a cause and has a correlating effect; then the action is devoid of free will. For example, if someone were held at gunpoint and ordered to do something, their actions would not be considered free will. The threat of violent force coerces their behavior. The concept is the same for our internal working, some force causes a reaction in the body to produce a behavior. For example, if a person is hungry they eat. If we watch a sad movie our brains send hormones and neuropeptides to cause us to feel sad. A force compelling our behavior or action free of influence by the mind is not free will (Greene, & Cohen, 2006).
The implications of this obviously have an impact on crime and punishment. Are we engineered by genetics, socialization, and our environment to be criminals? These internal and external forces make crime the result of ecology, not choice (Greene, & Cohen, 2006).
Greene and Cohen’s answer to this dilemma is our criminal justice system needs to move away from administering punishment according to what a criminal deserves for their crime, and instead focus on social welfare. More precisely, future social welfare, meaning we administer treatment to the criminal to ensure positive outcomes for society (Greene, & Cohen, 2006). Their assumptions regarding the benefit of a consequential versus a retributive criminal justice system are fairly close to the current state of penology in the United States.
The law asks whether or not a person was rational at the time of their crime, or at least had the ability to reason the potential consequences of their actions. The law paints very broad strokes in who it considers rational. Therefore, an absence of free will is not needed to convict a criminal, but simply if they could comprehend the consequences of their actions. This means neuroscience will have little impact on the law. Further, regarding future social welfare and the handling of incarcerated individuals, penology is moving towards the concept of consequential treatment. The primary focus of penology is to reduce recidivism, or to cause people who commit crimes to not commit them again in the future and to return to prison. To find a solution to this problem, prisons are using evidence based practices. Evidence shows that cognitive behavioral therapy (CBT) has the most significant impact on criminal behavior. CBT reprograms the way a criminal behaves, so that when they experience the forces they experience, they react in a prosocial way, instead of committing a crime (McLeod, 2015).
Neuroscience has an impact, but more to do with society’s perception than the methods and meaning of the law. Morality exists, but the source or causation of morality may change as science unlocks the black box of the mind.
Greene JD, & Cohen JD. For the Law, Neuroscience Changes Nothing and Everything. In: Zeki S, Goodenough O Law and the Brain. New York: Oxford University Press; 2006.McLeod Saul. Cognitive Behavioral Therapy. Simply Psychology. Accessed 19 April 2015. http://www.simplypsychology.org/cognitive-therapy.html. 2014