Greene and Cohen contend that the law is only superficially compatibilist. The law only requires the capacity for rational behavior as a condition of criminal liability. That is compatible with the causal determination of our actions. You can be rational and have your actions causally determined at the same time. So, on the face of it, nothing that we can learn from neuroscience would directly contradict anything that the law says. That is why the title of their article starts with “For the Law, Neuroscience Changes Nothing.”
However, Greene and Cohen argue that we accept this superficially compatibilist rationality condition for incompatibilist reasons. They claim that we think of the reasoning person as a non-physical mind, distinct from the physical brain (the view that mind and brain are distinct entities is called dualism). The reasoning person can be held responsible because it is free from the constraints of physical causation. The brain, by contrast, is subject to causal determination just like every other physical thing.
Neuroscience, according to Greene and Cohen, will undermine this dualist picture of persons by explaining more and more of our behavior as the product of physical causes. As a result, they believe, we will abandon the retributivist parts of our practices of punishment. The retributive ideal is that punishment is reserved for the guilty: those who freely chose to do bad things. Neuroscience, they believe, will show that no one freely chooses anything and so punishment for retributive reasons makes no sense.
In place of retributivism, they believe, we will take up a consequentialist approach to antisocial behavior. They think this is a good thing because they view consequentialism as the more humane approach to punishment. Because they believe that neuroscience will lead us to fundamentally rethink the purposes of the criminal justice system, they end the title of their article with the word “everything,” as in: “For the Law, Neuroscience Changes Nothing and Everything.” So really, in their opinion, neuroscience will change everything.
Greene and Cohen claim to show that we are tacitly incompatibilists with their example of Mr. Puppet. The idea is that Mr. Puppet would not be held responsible for his actions because they were so clearly formed by the scientist. But, they reason, if we aren’t willing to hold Mr. Puppet responsible for behavior that was caused, we should not hold anyone responsible for their behavior. Why? Everyone’s behavior is caused.
We talked about this case for some time. In my opinion, it is the critical part of Greene and Cohen’s argument. We are supposed to think that Mr. Puppet is not responsible and that is supposed to show that we are incompatibilists without fully appreciating it. Without Mr. Puppet, I don’t see that they have another way of showing that people are implicitly incompatibilists.
Austin said that he thought there was a good case for holding that Mr. Puppet is not responsible for his crimes without getting into anything fancy about free will. Mr. Puppet is effectively like a boy raised by wolves who has never been taught the difference between right and wrong. We would not hold the wolf boy responsible and we should not hold Mr. Puppet responsible for the same reason. The important thing is that we can reach this conclusion without making any global point about free will or responsibility in general. That’s a novel twist on this case.
Antonio worried about suicide bombers who have similar sorts of excuses. They have views about right and wrong that are mistaken, by our lights. Are we saying they are excused as well? Presumably not. But if you say that, you have to answer another question: what’s the difference between the mistaken suicide bombers and the wolf boy?
Let’s get everything on the table.
Determinism is the view that everything that happens is causally determined. This includes human actions.
Compatibilism is the view that our actions can be free, and we can be held responsible for what we do, even if determinism is true. (Punishment is a way of holding people responsible for their actions.)
Incompatibilism is the view that actions cannot be free, and we cannot be held responsible for what we do, if determinism is true.
Hard determinism combines incompatibilism and determinism.
Libertarianism combines incompatibilism with the denial of determinism.
There are two classic positions on punishment.
Consequentialism (aka utilitarianism) is the view that punishment is justified if and only if punishing people promotes the overall good better than any alternative way of dealing with antisocial behavior.
Retributivism is the view that punishment is justified if and only if the person to be punished deserves it. A person deserves to be punished if and only if the person has (a) done something bad and (b) can be held responsible for having done it. (Why two conditions? Because children and insane people do bad things but cannot be held responsible for their actions.)
Remember that the chief problem for the consequentialist view is that it does not require that punishment be used only against those who are guilty, that is, responsible for doing something bad.
Here is what we have.
|Author||View of free will||Punishment theory|
|Greene & Cohen||incompatibilist, hard determinist||consequentialist|
I am calling Morse a retributivist because he is concerned with defending the law as it stands. The law as it stands is not consequentialist: it puts a lot of effort into identifying the guilty and does not engage in any attempt to calculate the consequences of punishment. But I am adding the qualification “maybe” because he does not discuss the matter. For all I know, he could be a consequentialist who thinks that the law’s surface retributivism is only sensible as a rule of thumb that produces the best overall consequences in the long run.
Greene, Joshua, and Jonathan Cohen. 2004. “For the Law, Neuroscience Changes Nothing and Everything.” Philosophical Transactions of the Royal Society 359 (1451): 1775–85.