Free Will and Moral Responsibility in The Context of Law
(I wrote this paper for a Philosophy of Law course in 2021)
Throughout time it has been said that we are all products of our environment, taking pieces of what we see and experience and forming our overall identity. The debate of free will is one that has been ongoing for thousands of years as philosophers have tried to understand the amount of control humans have in their lives. Not only in control, but free will plays a role in moral responsibility as our actions have consequences, or causation, and we need to distinguish our role in decision-making. These ideas intersect with the concept of law and regulation, since law as we know it, governs the people based on their actions and motives.
For example, investigators factor in motives when doing their crime research as motives can be said to drive actions, good or bad. The classic determinist perspective believes that we have no freedom of will, therefore we do not have the ability to act in ways other than what we do. British philosopher Galen Strawson writes that “when one acts for a reason, what one does is a function of how one is, mentally speaking”(Strawson). What this means is that our behaviors and actions are a function of who we are, which can be said to be out of our control. Through the examination of the free will argument, my stance has developed and I believe there is a strong argument against free will, and that must mean that we may not have much moral responsibility. Needless to say the concept of not having free will could not immediately be applied universally to modern society, as crime may run rampant if there was no responsibility. However for the sake of argument, I believe this to be true. In this paper I will explore arguments against free will as well as moral responsibility, and juxtapose those concepts with modern law.
The earliest origins of the free will conversation come from around 350 BCE, where it is found in St. Augustine’s writings. One of the original concepts of free will examines the idea that “an action is up to an agent only if she had the freedom to do otherwise”(O’Connor et al.). A famous proponent of this idea is philosopher Harry Frankfurt, with his compatibilist theory. Compatibilism is the theory that free will is compatible with determinism, and free will is typically seen as a condition of moral responsibility, which is also compatible with determinism. Determinism tells us that everything occurs as a result of the laws of nature and the state of the world in a distant past (Mckenna et al.). It holds the view that humans are not the sources of their actions and do not have the freedom to do otherwise. Before I dive further into this, I would like to briefly touch on the philosophical view of “action”.
Philosopher Donald Davidson writes that an action is something that one does that is “intentional under some description”(Davidson). This causes a debate regarding whether or not our reasoning, or our intent are the cause of our actions. We must ask ourselves what it was that made the action seem like it was the clear thing to do at that point in time. The main goal of action theory, though, is to differentiate between what has been done to us and what we do (Wilson et al.). It looks at the idea that actions are directed at a goal, a goal created from the assessment of alternate options. With regards to this theory, the reason that I am going to start training my biceps at the gym, for example, boils down to the fact that strength training has been seen to build muscle. Not only this, but I have not seen any other way to build muscle in my biceps, it could exist, but my goal was formulated with the information accessible to me. John Locke’s theory of action states that actions are things that we actively do as opposed to what simply happens to us. If someone bumps into me because I am in their way, one could say that I made room for that person to pass. The fact that I made room for that person to pass, is something that happened to me and not something that I did. By contrast, if I were to see this person coming and I stepped to the side, I actively did something to make room for that person to pass. In this example, the action of stepping to the side is composed of; willingness to move my legs to the side one after the other, and the act of them moving to the side, where the latter results from the former. According to many philosophers, the way we can think of our own control over our actions at any point in time boils down to our ability to choose alternate actions.
Harry Frankfurt is highly regarded as one of the world’s most influential philosophers and he is a large proponent of the “Principle of Alternate Possibilities”. The concept explains that a person is morally responsible for an action if they could have done otherwise, and our ability to do otherwise as humans comes from the other courses of action purely being possible to be done. If I was to jump off of the roof of a tall building, in theory it is possible to perform the action of floating in midair or flying since we know of living things that do, but the world in which I live in does not allow humans to do those things. When looking at the principle of alternate possibilities you must also imagine situations in which a person is coerced into performing an action, and something makes it impossible for them to avoid performing the action. Frankfurt writes that hypnotic suggestion is one of the conditions that counts as not being able to do otherwise as well. This means that if a magician has a student hypnotized and makes them eat a banana, the student has no way of doing otherwise, and in this scenario would not be morally responsible for eating the banana if he was not supposed to. In regards to this principle, we must consider individuals with mental disorders that are extreme enough to force behavior. This means that they could, in theory, do otherwise, however their mental disorder, which they did not choose to have, prohibits them from taking any other course of action. Should we hold them accountable? I will examine this idea later in my paper. This also becomes the question when we look at those with obsessive thoughts that are, in a sense, unavoidable. These thoughts may restrict a person’s ability to think of anything else, or in other ways, act in any other way.
I will now examine philosopher John Locke’s theory of determinism and how it relates to free will. When discussing actions, Locke distinguishes between those that are voluntary and those that are involuntary. An action is voluntary if it is caused by a command of the mind. With this view we must again consider those with mental disorders that restrict aspects of their autonomy. Many paraplegics possess an impairment of sensory motor functions, and cannot command some of their body parts to move, meaning that they cannot perform voluntary functions with said body parts. By contrast, an action that is performed without such thought of the mind is involuntary. Dystonia is a condition that causes your muscles to contract involuntarily, your neck twisting to the side, or your arm swinging for example. These movements occur without thought of the mind or command to do so, so if someone with Dystonia hits you in the eye with an involuntary swing of the arm, should they be to blame? I will examine this further later in the paper. According to Locke, will is “the power to order the motion or rest of one’s body and the power to order the consideration or non-consideration of an idea”(Locke, E1). This means that to even have the ability to consider alternate options and ways of being is to have will. Those with disorders that impair their motor functions as well as their cognitive processes, do not have the ability to command any part of their body, and therefore do not have will.
In John Locke’s writing, “Three Concepts of Free Action”, he writes that the “will is the mind’s power to be more pleased with the consideration of an idea than with the not considering it, or to be pleased with the motion of a part of one’s body than with its remaining at rest”(Locke, E1). This means that will relates to pleasure, and that the mind must favor the action as opposed to the not doing of the action for it to occur. It can be said that those with cognitive illnesses that impair their judgment, are not able to consider ideas, and in turn do not have will. Through the assessment of options, the mind will act on the most favorable one, given that the person has a mind that is able to assess. A quote from Locke that sticks out to me is; “Though a man would prefer flying to walking, yet who can say he ever wills it?”(Locke, E2–5). He contrasts that idea of will, saying that even though a person could prefer a “possible option”, that they may not always have the ability to act on said option. Being more pleased with flying does not incur a willingness to fly, in a universe where humans cannot fly. In his writing, the next question Locke asks is one that concerns the determination of the will. His view claims that will’s determination occurs based on what appears to promise pleasure and avoid pain (Locke, E1). To put it simply, our actions come from the assessment of what is going to hurt us and what is going to give us pleasure. This can be subjective, being that what may cause one pleasure may cause someone else pain, and what someone may define as pleasure is something that changes over time through experience. A baby may find joy in hitting their parent in the face, but over time, after seeing the consequences of hitting their parent in the face growing up, they may not find the same pleasure. “When we lack something that would deliver more pleasure than we currently experience, we become uneasy at its absence”(Robb, 2), this uneasiness can also be interpreted as pain. Locke’s understanding of volitions adapts the idea that the power of will is caused by uneasiness. He writes that “all pain causes desire equal to itself” (Locke, E2), which means that desire comes from the inclination to avoid pain, which is a natural response. Furthermore, his view examines the idea that people do not change states unless there is a pain that leads them to desire a change. This can be connected to the less fortunate who may not have as much money but are content in their life, and in turn are not motivated to work harder to gain more money. As opposed to someone who realizes that their money will run out if they continue to buy X item every single day, and as a result of this realization, stops buying that item, or buys less of it. In the same token, if that person equates happiness with buying that item everyday, then they will continue and go broke knowingly. This is because we constantly desire happiness as it is “the utmost pleasure we are capable of”(Locke, E2). That being said, any amount of uneasiness conflicts with happiness and we are more driven to eradicate any pain before finding pleasure. Using my most recent example, it can be said that the thought of not being able to have the money to buy item X will cause them uneasiness, and prompt them to act positively and find more money to fund this obsession. Locke argues that any wrongdoings in our lives are not products of defects in our understanding, but perception of uneasiness.
One of the main issues regarding the argument of free will comes from the idea that if you do not believe in free will, there is no real reason to act morally. Now I will unpack the idea of moral responsibility as it relates to the principle of alternate possibilities, which explains that a person is morally responsible if they could have done otherwise and they were not being coerced or forced. By contrast, a person should not be held responsible for an action that was unavoidable, where there were no alternate courses of action. Being able to do otherwise comes from it even being possible that you do so. Using the “jumping off of a building” example from my first paragraph, it can be said that the option of staying on the roof was possible, so I would be morally responsible for my death. It can also be said that jumping off of the roof with a parachute was also possible, so the same thing applies. According to determinism, no one can ever do otherwise due to the fact that the laws of nature and the facts of the past have determined one possible future. Determinism aims to explain human behavior by attributing it to previously existing causes, and claims that every event occurs based on antecedent events. This means that everything that is occurring at this very moment is occurring because of some events that came before them, and you can trace those origins back to the laws of nature. Now when we look at determinism as it applies to moral responsibility, it explains that we are not responsible for the individuals that we have become, being that we are the product of the experiences of an already determined universe. There are many arguments against determinism, one claiming that no ordinary person knows whether or not it is true. It is difficult to prove the theory one way or another, however, it is simply known as a way of explaining human behavior throughout time. Using John Locke’s version of determinism, you can derive moral responsibility from the classification of actions. He believed that two types of actions were; “voluntary” and “involuntary”. I brought up the example of paraplegics who, due to impairment of sensory motor functions, are not able to fully perform voluntary actions. The ability to perform voluntary actions contributes to the idea of will, and in this case those without this ability do not have will, and without will, there is no moral responsibility. Finally, Locke’s theory entertains the idea that “uneasiness” is the determination of will, and that we are governed by our impulses, those of which we have no control over. Keeping this in mind, it is said that there are actions that deserve punishment, because the pleasure of villainy was chosen over the pleasure of divinity. This brings me to my final discussion, which concerns the concept of modern law and whether or not we can be morally responsible for committing crimes.
While determinism implies that we do not have the freedom to perform actions other than those that have been predetermined, I do think there is a difference between responsibility and punishment. If we were to decide cases in the court of law solely based on the principles of determinism, no one would be found guilty and punished for the crimes they commit. Using the principle of alternate possibilities we know that a person would be found guilty if they possessed the ability to do otherwise at that point in time, and they would be punished. Now let’s get into those without full autonomy, ie. those with mental or physical disorders that impair their judgment or motor function. When deciding upon the moral responsibility for their actions, we must consider that many times they are not able to do otherwise. So the question becomes; “should someone with a disorder that causes involuntary spasms be morally responsible for hitting people?”. To me, the answer is no simply because they could not do otherwise and did not choose to have the disorder. The Baumhammer case of 2001 is one example of the implementation of the “M’Naghten Rule”, which was adopted in Pennsylvania in 1843, and rules that a criminal defendant is not guilty by reason of insanity. In this case, the defendant’s attorneys admitted that he was the shooter but claimed that he was insane at the time of the killings because of his delusional thinking(Erickson, pg. 2). This aligns with the concept of not being able to do otherwise due to unavoidable thoughts, presented by Frankfurt and Locke. The man was not able to prove his insanity and was found guilty, however, the concept being implemented draws parallels to these classic philosophical ideas. Locke also does believe, though, that we all have a God-given “power of suspension” which was given to us to “examine, view, and judge, of the good or evil of what we are going to do”(Locke, E2). Locke writes that it is possible to make mistakes that warrant punishment, due to a mistaken view of the facts. Although one may not be morally responsible, it is possible to misinterpret what is wrong and what is right. This can explain the behavior of young adults in Chicago’s underprivileged neighborhoods who are constantly committing crimes, for example. It could be said that they have a mistaken view of the facts based on their life experiences, and believe that they must murder others for their own safety. Those facts may be that they must commit crimes to stay alive and support themselves, everyone is against them, etc. This behavior still warrants punishment, however, they may not be found morally responsible for the action, being that they did not choose their environment or place in time, which led them to become who they are. Not only could that be an explanation, but many of them could be choosing the pleasure of villainy over the pleasure of divinity, which influences them to commit crimes. In relation to action theory, the goals that drive those who have committed crimes come from the assessment of alternate options. At the point in time of the crime, they may not have interpreted any alternative options and that caused them to act in the way that they did. There are many ways to explain crime, but I think that these philosophical ideas give an interesting perspective.
Even without moral responsibility, there is still opportunity for punishment which helps keep society in order. In the context of modern law, ancient philosophy has played a role in deciding those punishments and whether or not individuals should be punished for certain crimes. We have laws that defend those who acted in self-defense or fear of their own life, which is a concept that traces back to John Locke’s theory of determinism and what drives our actions. To conclude, the idea of moral responsibility is one that will be debated for years to come while our legal system will continue to adapt to recognize the philosophical theories of the past.
Citations
Davidson, Donald, 1980, Essays on Actions and Events, Oxford: Oxford University Press.
Erickson, Patricia E., et al. Crime, Punishment, and Mental Illness : Law and the Behavioral Sciences in Conflict, edited by Thomas Zeller, Rutgers University Press, 2008. ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/luc/detail.action?docID=361655.
Locke, Don, 1975, “Three Concepts of Free Action, Part 1”, Proceedings of the Aristotelian Society (Supplemental Volume), 49: 95–112.
Locke, John, 1690, An Essay Concerning Human Understanding, edited by Peter H. Nidditch, Oxford: Oxford University Press, 1975.
McKenna, Michael and D. Justin Coates, “Compatibilism”, The Stanford Encyclopedia of Philosophy (Fall 2021 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2021/entries/compatibilism/>.
Meynen, G. “FC 31–05 — Mental Disorder and Moral Responsibility.” European Psychiatry, vol. 26, no. S2, 2011, pp. 1993–1993, https://doi.org/10.1016/S0924-9338(11)73696-3.
Robb, David, “Moral Responsibility and the Principle of Alternative Possibilities”, The Stanford Encyclopedia of Philosophy (Fall 2020 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2020/entries/alternative-possibilities/>.
O’Connor, Timothy and Christopher Franklin, “Free Will”, The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2021/entries/freewill/>.
Wilson, George and Samuel Shpall, “Action”, The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2016/entries/action/>.
