Science vs. Free Will: Maybe Eating All That Holiday Food Wasn’t Your Choice
posted by Deven Desai
The Economist reports that some aspects of neuroscience indicate that certain notions of when we exercise free will may be on the ropes. The article notes the case of someone who was a pedophile only when a tumor was present. When the tumor was removed the behavior ceased, but when it grew again, the behavior returned. The article focuses on the idea that much of criminal law (“the criminal law—in the West, at least—is based on the idea that the criminal exercised a choice: no choice, no criminal.”) and theories of the market (“Markets also depend on the idea that personal choice is free choice.”) rest on the idea of free will. According to the article one implication of these discoveries is “The British government[’s move] to change the law in order to lock up people with personality disorders that are thought to make them likely to commit crimes, before any crime is committed.” And for the market notions about our choices regarding consuming “Fatty, sugary foods … addictive drugs such as nicotine, alcohol and cocaine [and] [p]ornography” may be suspect as well.
I think the article is correct when it offers
Science is not yet threatening free will’s existence: for the moment there seems little prospect of anybody being able to answer definitively the question of whether it really exists or not. But science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making.
Nonetheless as science continues to chart better how we think and behave, the way the law addresses certain issues will necessarily be challenged. For example Rebecca Tushnet presented a paper examining decision-making and dilution doctrine at a recent works-in-progress conference. The paper raises some great points and questions about assumptions in the doctrine and what research supports or undercuts those views. (In deference to Rebecca I offer this quote from her regarding the paper “I’ll just ask that people recognize this as a draft, and if you want to cite or quote it, please just be willing to update the reference if and when it’s published.”)
I am sure others are pursuing analagous research so if readers have other examples of law and neuroscience, please share them. Then again if all of you simply want to kick back, relax, and run to left-over “Fatty, sugary foods,” I understand. You can’t help it. You have no choice. In fact I think I hear my something in my pantry calling and must go now.
December 26, 2006 at 6:05 pm
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Responses (11)
LM - December 26, 2006 at 9:18 pm
Here are a few reading recommendations of philosophy sites/philosophers focused on issues relating to law, philosophy, psychology, ethics, and/or neurology:
experimentalphilosophy.typepad.com/ (Blog covering topics of intent, moral judgment, criminal law, etc.)
peasoup.typepad.com/peasoup/ (See posts on experimental philosophy, applied ethics, and ethics alerts.)
http://www.wjh.harvard.edu/%7Ejgreene/ (Joshua Greene, philosopher, professor of psychology. Not to name him at the exclusion of all other philosophers working on neuroethics, but Josh Greene is one of the most well-known philosophers of the bunch. Names of other philosophers may be found on Josh’s site, and on the above-listed blogs.)
Patrick S. O'Donnell - December 26, 2006 at 10:25 pm
I happen to believe that not a few of the findings from the field of neuroscience are philosophically misguided and mistaken, if not incoherent. The situation is to some degree abetted and countenanced by contemporary work in the philosophy of mind that is largely ‘scientistic’ [on what this means, see Avrum Stroll's Twentieth-Century Analytic Philosophy, 2001 ed.] in substance, ambition and spirit. As a bracing alternative take on these fashionable trends, I would recommend the following (no one philosophy or theory
represented here but they go against the current in illuminating ways):
Auyang, Sunny Y. Mind in Everyday Life and Cognitive Science. (Cambridge, MA: MIT Press, 2000).
Bennett, M.R. and P.M.S. Hacker. Philosophical Foundations of Neuroscience. (Malden, MA: Blackwell, 2003).
Descombes, Vincent. The Mind’s Provisions: A Critique of Cognitivism. (Princeton, NJ: Princeton University Press, 2001).
Hutto, Daniel D. The Presence of Mind. (Amsterdam/Philadelphia, PA: John Benjamins Publ. Co., 1999).
Hutto, Daniel D. Beyond Physicalism. (Amsterdam/Philadelphia, PA: John Benjamis Publ. Co., 2000).
Melser, Derek. The Act of Thinking. (Cambridge, MA: MIT Press, 2004).
Putnam, Hilary. The Threefold Cord: Mind, Body, and World. (New York: Columbia University Press, 1999).
Patrick S. O'Donnell - December 26, 2006 at 10:25 pm
I happen to believe that not a few of the findings from the field of neuroscience are philosophically misguided and mistaken, if not incoherent. The situation is to some degree abetted and countenanced by contemporary work in the philosophy of mind that is largely ‘scientistic’ [on what this means, see Avrum Stroll's Twentieth-Century Analytic Philosophy, 2001 ed.] in substance, ambition and spirit. As a bracing alternative take on these fashionable trends, I would recommend the following (no one philosophy or theory
represented here but they go against the current in illuminating ways):
Auyang, Sunny Y. Mind in Everyday Life and Cognitive Science. (Cambridge, MA: MIT Press, 2000).
Bennett, M.R. and P.M.S. Hacker. Philosophical Foundations of Neuroscience. (Malden, MA: Blackwell, 2003).
Descombes, Vincent. The Mind’s Provisions: A Critique of Cognitivism. (Princeton, NJ: Princeton University Press, 2001).
Hutto, Daniel D. The Presence of Mind. (Amsterdam/Philadelphia, PA: John Benjamins Publ. Co., 1999).
Hutto, Daniel D. Beyond Physicalism. (Amsterdam/Philadelphia, PA: John Benjamis Publ. Co., 2000).
Melser, Derek. The Act of Thinking. (Cambridge, MA: MIT Press, 2004).
Putnam, Hilary. The Threefold Cord: Mind, Body, and World. (New York: Columbia University Press, 1999).
Deven Desai - December 27, 2006 at 1:10 am
Ah the wonders of the Net. Thank you both for the references. They are much appreciated.
Patrick, as you expressed some skepticism, I address you but welcome everyone’s input on this question: Do you think the narrow example of a tumor having such a clear effect on someone’s behavior is false? And/or if one accepts it as true, is the possible claim that the person in question is somehow not responsible for certain actions or unable to exercise choice “philosophically misguided and mistaken, if not incoherent”? I could see how one might take that position and ask so that I am more clear as to what you think and perhaps why?
Deven
Aaron - December 27, 2006 at 1:24 am
Tushnet’s article is fantastic.
Patrick S. O'Donnell - December 27, 2006 at 3:34 am
Deven,
A narrow example, indeed, as it is one case study and as I have not read the particulars, I will refrain from inferring a direct cause and effect relationship (i.e., that the individual was completely bereft of freedom of choice, or that the tumor simply and straightforwardly ’caused’ his paedophilic tendencies). Perhaps the tumor served as a precipitating or catalytic cause or factor of sorts (and hence is a mitigating factor in the determination of culpability), I don’t know, and I simply can’t comment more on this case without reading up on the specifics (there are so many variables and possibilities here, and I’m inclined to think researchers are predisposed to interpret correlation(s) as causation or indulge in post hoc ergo propter hoc generalizations. The fact that most individuals with paedophilic tendencies don’t have tumors might give us pause here. At any rate, there does not seem to be a body of evidence that permits us to draw a conclusion of the sort drawn in the Economist article. And we should hardly leap to grandiose generalizations regarding questions of free will from this one case. (It is interesting that we tend to see causality as unidirectional, for ‘both conceptually and empirically, it is scientifically respectable to consider causal influence exerted by a systems’s high-level structures on its subsystems and subprocesses.’) I will also refrain from assuming or inferring some sort of mind-brain identity (most egregiously, eliminativism) from such an example. The mind is not, so to speak, all in the head, but the property of a person qua person. The locus and focus of neuroscience and cognitive science is not mind as we experience it but rather something on the order of a natural infrastructure consisting of sub- and unconscious processes from which the mind ‘emerges’ [keep in mind that a system with emergent properties is more than the sum of its parts and that an emergent property is of a different kind from the properties of the parts: the whole is greater than the sum of its parts] or is somehow related (the ‘binding problem’ or ‘relational problem’), in Auyang’s words, ‘Mind is a property of an engaged person as a whole, not of any of his parts, not even his brain, although its underlying mechanisms are mostly located in the brain.’ This means, for our purposes, ‘that mental concepts are indispensable in the description and explanations of mental properties, so that mental properties cannot be said to be *nothing but* some other properties that are totally different.’ In other words, descriptions used to explicate mentality cannot be reduced to terms appropiate for neural and physiological constituents and, conversely, that mental concepts are ‘not applicable to neurons, the brain, and other organs.’ Perhaps relevant here is the fact that while ‘the consequences of focal brain injuries show that many infrasturctural processes are necessary for normal experiences[,] [i]t does not follow…that activation of infrastructural process is sufficient to produce an experience.’ Again, Auyang: The mental infrastructure [a lower level of organization] ‘is unconscious and mechanical in a wide sense. It consists of processes that are automatic, rigidly specialized, narrow in scope, often genetically determined, beyond voluntary control, and fast, with characteristic times of less than a tenth of a second. Familiar mental concepts such as perceiving, thinking, knowing, desiring, intending, attending, understanding and acting are strictly applicable only to mind and not to its infrastructure.’ Another way of making the distinction, and one legal minds should appreciate, is that while processes in the mental infrastructure evidence regularities or the properties of a lawful system, ‘they are neither rule following nor rule driven.’ Or, while nature exhibits structures, ‘mental efforts alone create information by conferring significance on some chosen physical structures. [....] Thus infraconscious processes process information because what they process becomes informative to the mental entity that they constitute.’
Alternatively, we might attend to Bennett and Hacker’s remark that ‘The mind, one might say, adapting a phrase which Wittgenstein used in a different context, is not a *nothing*, but is not a *something* either.’ In other words, all tendencies toward and the liablities of reification should be eschewed such that we appreciate mind as in reference to a ‘wide range of characteristic human powers and their exercise, and of a range of human character traits.’ Moreover, ‘it is not my mind that makes up its mind, that has a mind of its own, that is in two minds whether to do this or that, it is I, a human being, a living animal with intellectual and volitional capacities. And so too, it is not the mind that feels pain, perceives, thinks and desires, makes decisions and forms intentions, but the person, who is a psychophysical unity, do a duality of two conjoined substances, a mind and a body.’ B. and H. further remind us that there is *no such thing* ‘as a part of the brain (the amygdala, hippocampus, prefrontal cortices) being in a state analogous to the “state of reasoning, conjecturing or inferring,” since neither reasoning nor conjecturing nor inferring are states, and there is no such thing as part of the brain satisfying the criteria that would warrant ascribing to it the attributes of reasoning, conjecturing and inferring, or thinking, remembering and deciding.’ To reiterate: the logical grounds for the ascription of psychological predicates to a subject are the activities and behavior of the subject, of the human being, a person, not of his brain. At best we can ‘correlate neural events and processes with the human being’s thinking or perceiving, imagining or intending, and discover (if we can) what neural states, events and processes are *causally necessary* conditions for the human being to think or perceive, imagine or intend.’
Perhaps most or all of the above goes without saying, but the penchant for drawing unwarranted extrapolations and conclusions from work in cognitive science and neuroscience (plenty of examples in B. & H., as well as a particularly telling case examined by Dennis Patterson in his article, ‘Fashionable Nonsense,’ Texas Law Review, Vol. 81, 2003 Available at SSRN: http://ssrn.com/abstract=347281 or DOI: 10.2139/ssrn.347281) continues unabated, with an overweening enthusiasm that alone should make us hesitate to fall head over heels for this stuff.
Patrick S. O'Donnell - December 27, 2006 at 3:34 am
Deven,
A narrow example, indeed, as it is one case study and as I have not read the particulars, I will refrain from inferring a direct cause and effect relationship (i.e., that the individual was completely bereft of freedom of choice, or that the tumor simply and straightforwardly ’caused’ his paedophilic tendencies). Perhaps the tumor served as a precipitating or catalytic cause or factor of sorts (and hence is a mitigating factor in the determination of culpability), I don’t know, and I simply can’t comment more on this case without reading up on the specifics (there are so many variables and possibilities here, and I’m inclined to think researchers are predisposed to interpret correlation(s) as causation or indulge in post hoc ergo propter hoc generalizations. The fact that most individuals with paedophilic tendencies don’t have tumors might give us pause here. At any rate, there does not seem to be a body of evidence that permits us to draw a conclusion of the sort drawn in the Economist article. And we should hardly leap to grandiose generalizations regarding questions of free will from this one case. (It is interesting that we tend to see causality as unidirectional, for ‘both conceptually and empirically, it is scientifically respectable to consider causal influence exerted by a systems’s high-level structures on its subsystems and subprocesses.’) I will also refrain from assuming or inferring some sort of mind-brain identity (most egregiously, eliminativism) from such an example. The mind is not, so to speak, all in the head, but the property of a person qua person. The locus and focus of neuroscience and cognitive science is not mind as we experience it but rather something on the order of a natural infrastructure consisting of sub- and unconscious processes from which the mind ‘emerges’ [keep in mind that a system with emergent properties is more than the sum of its parts and that an emergent property is of a different kind from the properties of the parts: the whole is greater than the sum of its parts] or is somehow related (the ‘binding problem’ or ‘relational problem’), in Auyang’s words, ‘Mind is a property of an engaged person as a whole, not of any of his parts, not even his brain, although its underlying mechanisms are mostly located in the brain.’ This means, for our purposes, ‘that mental concepts are indispensable in the description and explanations of mental properties, so that mental properties cannot be said to be *nothing but* some other properties that are totally different.’ In other words, descriptions used to explicate mentality cannot be reduced to terms appropiate for neural and physiological constituents and, conversely, that mental concepts are ‘not applicable to neurons, the brain, and other organs.’ Perhaps relevant here is the fact that while ‘the consequences of focal brain injuries show that many infrasturctural processes are necessary for normal experiences[,] [i]t does not follow…that activation of infrastructural process is sufficient to produce an experience.’ Again, Auyang: The mental infrastructure [a lower level of organization] ‘is unconscious and mechanical in a wide sense. It consists of processes that are automatic, rigidly specialized, narrow in scope, often genetically determined, beyond voluntary control, and fast, with characteristic times of less than a tenth of a second. Familiar mental concepts such as perceiving, thinking, knowing, desiring, intending, attending, understanding and acting are strictly applicable only to mind and not to its infrastructure.’ Another way of making the distinction, and one legal minds should appreciate, is that while processes in the mental infrastructure evidence regularities or the properties of a lawful system, ‘they are neither rule following nor rule driven.’ Or, while nature exhibits structures, ‘mental efforts alone create information by conferring significance on some chosen physical structures. [....] Thus infraconscious processes process information because what they process becomes informative to the mental entity that they constitute.’
Alternatively, we might attend to Bennett and Hacker’s remark that ‘The mind, one might say, adapting a phrase which Wittgenstein used in a different context, is not a *nothing*, but is not a *something* either.’ In other words, all tendencies toward and the liablities of reification should be eschewed such that we appreciate mind as in reference to a ‘wide range of characteristic human powers and their exercise, and of a range of human character traits.’ Moreover, ‘it is not my mind that makes up its mind, that has a mind of its own, that is in two minds whether to do this or that, it is I, a human being, a living animal with intellectual and volitional capacities. And so too, it is not the mind that feels pain, perceives, thinks and desires, makes decisions and forms intentions, but the person, who is a psychophysical unity, do a duality of two conjoined substances, a mind and a body.’ B. and H. further remind us that there is *no such thing* ‘as a part of the brain (the amygdala, hippocampus, prefrontal cortices) being in a state analogous to the “state of reasoning, conjecturing or inferring,” since neither reasoning nor conjecturing nor inferring are states, and there is no such thing as part of the brain satisfying the criteria that would warrant ascribing to it the attributes of reasoning, conjecturing and inferring, or thinking, remembering and deciding.’ To reiterate: the logical grounds for the ascription of psychological predicates to a subject are the activities and behavior of the subject, of the human being, a person, not of his brain. At best we can ‘correlate neural events and processes with the human being’s thinking or perceiving, imagining or intending, and discover (if we can) what neural states, events and processes are *causally necessary* conditions for the human being to think or perceive, imagine or intend.’
Perhaps most or all of the above goes without saying, but the penchant for drawing unwarranted extrapolations and conclusions from work in cognitive science and neuroscience (plenty of examples in B. & H., as well as a particularly telling case examined by Dennis Patterson in his article, ‘Fashionable Nonsense,’ Texas Law Review, Vol. 81, 2003 Available at SSRN: http://ssrn.com/abstract=347281 or DOI: 10.2139/ssrn.347281) continues unabated, with an overweening enthusiasm that alone should make us hesitate to fall head over heels for this stuff.
Patrick S. O'Donnell - December 27, 2006 at 3:53 am
One should also check out a blog the contents of which often rub me the wrong way (a philosophical irritation) but is no less deserving of mention: Neuroethics & Law Blog at http://kolber.typepad.com/
Patrick S. O'Donnell - December 27, 2006 at 3:53 am
One should also check out a blog the contents of which often rub me the wrong way (a philosophical irritation) but is no less deserving of mention: Neuroethics & Law Blog at http://kolber.typepad.com/
Patrick S. O'Donnell - December 27, 2006 at 7:47 am
In the second para. above, please read ‘…not a duality of two conjoined substances, a mind and a body.’
Patrick S. O'Donnell - December 27, 2006 at 7:47 am
In the second para. above, please read ‘…not a duality of two conjoined substances, a mind and a body.’
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