A commenter informed me that the essay I had linked to was no longer available, so I emailed Kip, who now blogs at Make a Public Commitment and plans to write a free-will book titled “Sympathetic Slaves”, suggesting that I rehost it. Here goes:

THE INEVITABILITY OF A MEDICALIZED SOCIETY

By Kip Werking

“[T]he critical question may be not so much whether crime is indeed a disorder, but whether less than 200 years from now more advanced society will look back aghast at our current conceptualization of criminal behavior, with its concomitant incarceration and execution of prisoners, with the same incredulity with which today we look back at earlier treatment of mental patients.”[1]

Will society come to regard crime as a symptom of disease? Or will society resist the temptation to “medicalize” the criminal law? This is an empirical question, with two great scholars on each side. Joshua Greene argues that advances in the understanding of the brain and human behavior will inexorably lead to such medicalization. Daniel Dennett argues that society will resist this temptation because people will always want to “take responsibility” for their actions. This article will argue for Greene’s predictions, contra Dennett.

I.        THE DESCRIPTIVE PROJECT

In a groundbreaking article in the Philosophical Transactions of the Royal Society of London, Joshua Greene and Jonathan Cohen argue that neuroscience is both relevant and irrelevant to the law.[2] Although the law has always been interested in the human mind, the new field of cognitive neuroscience is irrelevant because, even if it threatens to undermine belief that the brain works in anything like the way libertarians say it does (e.g. in an indeterministic fashion), it does not threaten to undermine belief in the widespread weak rationality of human beings–and the law only requires that defendants have this much control over their actions.[3] The weak rationality requirement is embodied in the insanity defenses such as the McNaughton defense.[4] Although cognitive neuroscience threatens to undermine beliefs in the brain working in an indeterministic fashion, or in human beings having But, as Greene and Cohen argue, the new science is relevant to the law because it reveals the tension between the current law and the moral intuitions upon which that law rests.

Greene and Cohen elaborate on the relationship between punishment theory and the free will problem. They begin by considering two distinct branches of punishment theory. First, there is a consequentialist tradition which has its roots in Bentham and utilitarianism. According to the forward-looking consequentialist, one evaluates the goodness of an act according to the goodness of the outcomes it brings. Second, there is retributivist theory which found defenders in Kant (amongst others). According to the backward-looking retributivist, the wrongness of the perpetrator’s alone is sufficient to justify punishment.

Next, Greene and Cohen consider the various possible positions in the free will debate. The lines between these positions are drawn with respect to the doctrine of determinism. According to determinism, there is only one unique future for any given state of the universe. Compatibilists believe that “free will” is a power or faculty so weak that human beings can have it even in deterministic worlds. Incompatibilists believe that “free will” cannot exist in such deterministic worlds. One can divide incompatibilists into two subgroups. Libertarians believe that human beings have free will (and so that the world is indeterministic in just the right way). The other group, which follows in the tradition of hard determinism (but need not assert the truth of determinism, as many historical defenders of this view did), denies that human beings have free will.[5] Greene and Cohen note that consequentialism is consistent with either theory of punishment.[6] They further note, however, that retributivism is inconsistent with hard determinism. This leaves the retributivist with the options of compatibilism and libertarianism. But, Greene and Cohen argue, libertarian is empirically suspect and a dangerous foundation on which to base the law or morality. Therefore, they put libertarianism to the side, for the purposes of their article, and consider compatibilism to be the only viable alternative for retributivists today.

Having outlined the major theories of punishment and views on the free will problem, Greene and Cohen offer (what this article will call) a Folk Psychology (FP) argument for hard determinism:

  1. Folk psychology presupposes that other minds are unmoved movers – in other words, we are committed to an incompatibilist concept of free will.
  2. The folk psychology system is flawed, because our understanding of physics reveals that humans are not unmoved movers.
  3. Therefore, humans do not satisfy our concept of free will.

Of course, the crucial premise, which the compatibilist will resist, is the second. But despite the ability of compatibilists to point to themselves as an existence proof of compatibilist intuitions, Greene and Cohen cite research to show that people do think of other minds in just this way.[7] Furthermore, their hypothesis here is consistent with the fact that many philosophers regard “free will” as requiring the ability to be an “unmoved mover.” Alternatively, the compatibilist might grant the second premise but deny either that (i) people will lose their moral attributions, without the belief in others as unmoved movers, or (ii) that people should lose their moral attributions in this way. The compatibilist might, in other words, grant that humans tend to think the way Greene and Cohen describe but still insist that these tendencies are flawed.

As defenders of consequentialism who regard libertarianism as empirically suspect, Greene and Cohen identify their retributivist opponents as compatibilist. There are countless compatibilists who resist Greene and Cohen’s descriptive project and the FP argument for hard determinism. But one compatibilist is exceptionally prominent and, furthermore, explicitly resists not just their descriptive project but also their predictive project. Daniel Dennett insists not just that people have free will but that society will eternally resist the temptation to medicalize itself. Before considering the predictive project, however, this article will consider Dennett’s argues for compatibilism.

Dennett lists the following criteria for compatibilist agents[8]:

  1. The agents can be understood, as a practical matter, only in terms of their having capacities to pursue some courses of action and to avoid others through reasons-guided decision-making;
  2. they adapt their behavior to new information;
  3. they are aware of and sensitive to moral norms; and
  4. they regard themselves as free and responsible agents.

Dennett describes, at length in his two books[9], how each of these features is compatible with determinism. In his last book on the subject, Freedom Evolves, he further describes how each of these features can evolve. In articulating these requirements for freedom and responsibility, Dennett is a typical compatibilist. Other prominent compatibilists, such as Frankfurt, Fischer, and Watson, have largely similar views. All of these compatibilists argue that “free will” entails powers that nobody would doubt that most people have most of the time. And so all of these compatibilists do not take issue with the current state of the criminal law–which shares the compatibilist concern with such weak and uncontroversial powers.

But there is trouble in paradise. Although Dennett never considers Greene and Cohen’s FP argument, Greene and Cohen do consider compatibilist views–including Dennett’s–and reject them. They employ what they call the “Boys from Brazil” (BFB) argument against Dennett’s view and all compatibilist views like it. The argument begins by describing how a group of scientists, by carefully rigging a person’s genetics and childhood environment, might ensure that this person will grow up to commit a specific crime. Greene and Cohen call this person “Mr. Puppet”. According to the BFB argument:

  1. Mr. Puppet will satisfy any non-ad hoc compatibilist requirements for freedom and responsibility.[10]
  2. Yet, intuitively, Mr. Puppet is not free and morally responsible.
  3. Therefore, no non-ad hoc compatibilist requirements for freedom and responsibility are satisfactory.

Greene and Cohen cite an article by Rosen when describing this argument.[11] But Watson made the same argument, in its essentials, even earlier.[12] One can trace the general idea of such a design scenario all the way back to the debates between Hobbes and Bramhall. Today, Al Mele retains incompatibilist sympathies because of an argument, which he calls the Zygote Argument, that is almost identical to the BFB argument.[13]

Note that a soft compatibilist can try to forge a distinction between Mr. Puppets and natural persons. But any such distinction seems, on inspection, ad hoc and too convenient–hence the reference to “ad hoc” requirements in the first premise. Indeed, virtually no compatibilist today defends soft compatibilism in this way (not Dennett, Frankfurt, Watson, Fischer, or Mele).

Greene and Cohen note that Dennett has not explicitly addressed the BFB argument (or largely similar arguments like the Zygote Argument).[14] But he has addressed somewhat similar arguments made by Mele. In particular, he has noted that certain incompatibilist thought experiments, involving brain washing, ignore the widespread deception that must take place for these experiments to work. Suppose that a brainwasher covertly brainwashes A to put them in the same brain state at which B is in naturally.  For example, suppose that A was a horrible father and hated children, while B was a good father and loved children, but the brainwasher covertly turns A into a good father like B. Once someone informs such a brainwashed agent just how deceived he or she is, Dennett argues, the notion that they are not free and responsible will vanish. Deception, and not brainwashing, is doing the work here.

Yet there are relevant differences between these arguments and the BFB type arguments. In the designer scenario, there need not be any deception. Sure, the agent might suppose that no being, such as God, has designed his or her life story. But this is an unfounded assumption and one that the agent need not endorse with any vigor (especially if the agent is a compatibilist). Since Dennett hinges his argument against Mele similar examples upon the use of such deception, one can imagine that, without the deception, Dennett would insist that agent is free and responsible.  Greene and Cohen respond to this point:

“But does the same hold for the intuition provoked by Mr Puppet’s story? It seems to us that the more one knows about Mr Puppet and his life the less inclined one is to see him as truly responsible for his actions and our punishing him as a worthy end in itself. We can agree with Dennett that there is a sense in which Mr Puppet is free. Our point is merely that there is a legitimate sense in which he, like all of us, is not free and that this sense matters for the law.”

Nevertheless, compatibilists like Dennett might deny the second premise of the BFB argument. Such a compatibilist might say: “The agent can only be understood in terms of having capacities to pursue and avoid certain courses of action, can adapt his or her behavior to new information, is aware of and sensitive to moral norms, and regards his or herself as free and responsible. What more could the agent ask for?”  As Dennett would say, this kind of free will is the only kind worth wanting.

Greene and Cohen anticipate this point too. Even if, as Dennett might suggest, another agent would hold Mr. Puppet free and responsible, the question remains: would the designer? It strains credulity to suppose that the designer could ensure that Mr. Puppet commit some crime and then say “you satisfied all of these compatibilist requirements for freedom and responsibility, it was not inevitable, you could have done otherwise, therefore I am holding you responsible.” At this point, the compatibilist would be forced to make moral responsibility agent relative: other people might hold Mr. Puppet responsible but the designer cannot do so. Indeed, at least one philosopher has suggested just this move.[15]

Yet moral responsibility does not seem extrinsic in this way. The question of whether an agent is morally responsible for an action should not depend upon who is doing the judging. This is true in the same sense that whether a person should be judged guilty of murder should be the same regardless of who is doing the judging. Ideally, all of our judges will work with equal, and perfect, competence. Any factor beyond the facts of the case–such as the judges’ personal religious or political belief, or what he or she ate for breakfast–should be irrelevant. Moral responsibility works in an analogous way.

If these arguments are correct, then Greene and Cohen are right to defend the tradition of hard determinism. Their descriptive project is a success: free will does not exist. But without free will, retribution will no longer be a valid theory of punishment available to society. This raises the question of the predictive project: will society come to embrace the non-existence of free will and therefore medicalize the criminal law? Or will it eternally safeguard the precious belief in free will and resist the temptation to treat people instead of punish them?

II.     The Predictive Project

There is no necessary connection between the descriptive project and the predictive project. Even if free will exists, society might come to deny its existence. And even if it does not exist, society might never come to deny its existence. Nevertheless, both Dennett, and Greene and Cohen, predict that society will come to agree with them.

First, the FP argument leads Greene and Cohen to make the following astonishing prediction:

“At some further point this sort of brainware may be very widespread, with a high-resolution brain scanner in every classroom. People may grow up completely used to the idea that every decision is a thoroughly mechanical process, the outcome of which is completely determined by the results of prior mechanical processes. […] We submit that these questions, which seem so important today, will lose their grip in an age when the mechanical nature of human decision-making is fully appreciated. The law will continue to punish misdeeds, as it must for practical reasons, but the idea of distinguishing the truly, deeply guilty from those who are merely victims of neuronal circumstances will, we submit, seem pointless.”

Greene and Cohen suggest nothing less than a moral revolution in the criminal law. But not everyone agrees. Dennett asserts, with just as much confidence, that society will never “medicalize” itself:

“The anxious mantra returns: ‘But where will it all end?’ Aren’t we headed toward a 100 percent ‘medicalized’ society in which nobody is responsible, and everybody is a victim of one unfortunate feature of their background or another (nature or nurture)? No, we are not, because there are forces–not mysterious metaphysical forces, but readily explainable social and political forces–that oppose this trend, and they are of the same sort, really, as the forces that prevent the driving age from rising to, say, thirty! People want to be held accountable. The benefits that accrue to one who is a citizen in good standing in a free society are so widely and deeply appreciated that there is always a potent presumption in favor of inclusion. Blame is the price we pay for credit, and we pay it gladly under most circumstances. We pay dearly, accepting punishment and public humiliation for a chance to get back in the game after we have been caught out in some transgression. And so the best strategy for holding the line against creeping exculpation is clear: Protect and enhance the value of the games one gets to play if one is a citizen in good standing. It is erosion of these benefits, not the onward march of the human and biological sciences, that would threaten the social equilibrium. (Recall the cynical slogan that accompanied the decay and ultimate collapse of the Soviet Union: They pretend to pay us and we pretend to work.)”

This section will argue for Greene and Cohen’s prediction, contra Dennett. First, it is doubtful that people want to be held accountable–and Dennett’s example about driving does not prove otherwise. Second, Dennett’s argument betrays a lack of imagination. He cannot seem to conceive of a world where people obtain the benefits of accountability without actually being held accountable. Third, Dennett seems to conflate blameworthiness with holding blameworthy. Fourth, Dennett’s arguments ignore the live possibility that one’s intuitions about free will rely upon the errors of folk psychology, just as Greene and Cohen describe, and not just upon the weaker powers Dennett requires. Finally, the historical trend favors Greene and Cohen and not Dennett.

Dennett’s claim that “[p]eople want to be held accountable” flies in the face of Sartre’s observation that people hate being held accountable.[16] If there is any truth to Sartre’s claim, then people detest their radical freedom and want to escape it. The widespread feelings of innocence and victimization in any prison testify to the extent people do not want to be held accountable–for obvious reasons.[17]

Dennett wants to piggyback the desirability of accountability for bad acts upon the desirability of accountability for good acts. But the one just does not follow from the other. People do not want to be held accountable for their bad acts and they resist this accountability at every opportunity. It is true that, today, they “pay the price” of accountability for bad acts in order to do things like drive a car.  However, this is because they are forced to do so.

The false claim about the desire to be accountable raises the second major problem with his argument: Dennett cannot seem to imagine what a medicalized society would look like. In other words, if people must pay a price (accept accountability for bad acts) in order to obtain some good (drive a car), he cannot seem to imagine a world in which people can obtain the good without paying the price.

Consider Dennett’s example of the driving age.  Might people obtain the benefit of driving without being held accountable for bad acts?  What would such a world look like? Here is one possibility: people drive cars and bad acts never happen.  There are at least two ways this might happen. First, a technologically advanced society might design drivers, cars, or the (simulated) universe itself, so that bad acts never happen. For example, the vast majority of society might consist of Mr. Puppets who scientists have designed, from scratch, to always drive well. Similarly, cars could be so safe and intelligent that they almost always avoid accidents and, on rare instances when accidents do happen, almost no harm takes place. Second, a technologically advanced society might obtain such power that it can predict all or most bad acts before they happen and prevent them. Here is a last possibility: whenever a driver does something bad (e.g. drive into a house), the police can give that person some therapy (e.g. a “moral pill”) which will, without altering anything else about the person, give the person the driving skills and good judgment to never commit a bad act again. In all of these situations, people might obtain the good of driving without paying the price of accountability. They do not desire accountability for its own sake. As soon as people can absolve themselves of accountability, they will do so–just as Sartre insisted they would.

These three possibilities can generalize across all bad acts. A technologically advanced society might engineer its citizens, like Mr. Puppet, to never commit any bad act. Such a society might obtain the power to predict all or most bad acts and intervene before they happen. And a technologically advanced society might cure its citizens, whenever they commit a bad act, such that they will never commit a bad act again.

Third, Dennett seems to ignore the subtle, but crucial, distinction between being blameworthy and holding blameworthy. To say that people will continue to hold others responsible is not to say that people will also continue to believe that others are responsible. Holding innocent people responsible might just be the least bad alternative available to society–one that involves some dishonesty. Consider this example: a terrorist says “Hold your police chief responsible for the death of my cult leader, or I will detonate a bomb in a crowded area, killing hundreds of innocent people.” A reasonable consequentialist might therefore literally hold the police chief responsible while also thinking “I do not really believe that the police chief is responsible, but I am going to hold the chief responsible, so that I can save the lives of the innocent people that this person is threatening.” Holding responsible and being responsible are distinct.

But if holding responsible and being responsible are two different things, then the fact that society may continue to hold people responsible–at least in the short term–does not suffice to show that society has not adopted a medicalized attitude. That society might just regard itself as being in the Behavior Therapy Dark Ages (BTDA)—a period of time, such as the present, in which technology has not advanced to the point where society can medicalize itself. In the BTDA, punishment and holding accountable are like chemotherapy: they are the least bad options available. Just as oncologists think “I wish I could give you therapy that caused no suffering whatsoever, and as soon as such a therapy becomes available, I will give it to you,” so too might a medicalized society, in the BTDA, think that punishment and accountability are the least bad options available to it.

Fourth, Dennett’s argument ignores the possibility that one’s intuitions about free will depend upon flaws in human folk psychology, just as Greene and Cohen describe. To be fair, Dennett could not have been aware of Greene and Cohen’s argument at the time he wrote his book (at least, Dennett published first). But to merit the finality with which Dennett writes, his argument should anticipate conceptually possible objections like the one Greene and Cohen make.

For example, Dennett might insist that, even if people will not need to assume responsibility for bad acts, they will still want to take responsibility for good acts. But suppose that Greene and Cohen are right about the FP argument. In that case, even if it is true that people desire to be accountable for their bad acts (despite the previous arguments), this just will not matter–any more than the wish of people to be millionaires or immortal is relevant to the question of whether they actually are. Although they may desire to be accountable and regard others as accountable, they will find it impossible to do so. This is because, according to the FP argument, their attributions about freedom and responsibility will simply “melt” away as they become less engaged with their folk psychology and more familiar with the mechanical and chemical explanations for human behavior. Even wishful thinking has its limits.

Finally, Dennett’s conservative position is at odds with the historical trend. The number of acts for which society holds people responsible–in a retributivist sense–continues to shrink. It is true that, in the short term, during the retributivist revival of the 1970s, the circle expanded a little (at least in the academy). But this just seems to reflect the failure of psychological programs like behaviorism[18] and psychoanalysis[19] to fulfill on their promises to provide better substitutes for the criminal law. It is two steps forward and one step back. Future technologies and discoveries in psychology will succeed where behaviorism and psychoanalysis failed. If one takes a broader view of history, beyond the retributivist revival, the trend is decidedly towards shrinking, and not expanding, the circle of things for which society holds people accountable.

One finds a good example of this in death penalty jurisprudence–where legal and ethical scrutiny is heightened.[20] Last century, states could put people to death automatically for certain crimes (without consideration of “mitigating factors”). States could put minors to death. States could put the mentally handicapped to death. Today, states can do none of these things–and there is no going back. One can reasonably expect the Supreme Court to eventually follow Europe in abolishing the death penalty entirely.

Furthermore, there is an explanation for why society hesitates to abolish its retributivist ways. First, these impulses seem deep seated in our evolved psychologies. But retributivism also often coincides with consequentialism. The world in which we live often differs from the environment in which humans evolved, just as a zoo differs from the habitats from which its animals were taken. But the world remains sufficiently similar to the ancestral environment that “an eye for an eye” often does produce the best consequences for society. But this will change. As technology progresses unchecked, society will develop the ability to make citizens like Mr. Puppet, or predict and prevent bad actions before they happen, or cure bad actors after they have struck. Once this happens–once society escapes the Behavior Technology Dark Ages–retributivism and consequentialism will cease to recommend the same courses of action.

Consider this analogy: most experts agree that economic factors help explain the longevity of slavery. It was only after the economies of countries like Great Britain grew to a sufficient point that their people were ready to pay the cost of abolition. Sure, other factors such as education and religious beliefs were important too, but the economic factor was important and perhaps necessary. By analogy, society will be unwilling to give up belief in freedom, responsibility, and retribution, until it can afford to pay the cost–that is, until it is technologically advances enough to protect itself without these superstitions. In the meanwhile, society remains in the Behavior Technology Dark Ages, with a bright future ahead of it. This is a future that Greene and Cohen, but not Dennett, can already glimpse.

[1] Adrian Raine, ‘The Psychopathology Of Crime: Criminal Behavior As A Clinical Disorder’, (1993), pp. 243-44.

[2] J. D. Greene and J. D. Cohen, ‘For the law, neuroscience changes nothing and everything’, Philosophical Transactions of the Royal Society of London B (Special Issue on Law and the Brain), 359 (2004), pp. 1775-17785.

[3] S. J. Morse, New neuroscience, old problems. In Neuroscience and the law: brain, mind, and the scales of justice (ed. B. Garland), (New York: Dana Press, 2004), pp. 157–198.

[4] J. T. Dalby, ‘The case of Daniel McNaughton: Let’s get the story straight’, American Journal of Forensic Psychiatry, 27 (2006), pp. 17-32.

[5] Of course, there is the technical possibility of believing that free will is compatible with determinism while also believing that free will does not exist. Such a compatibilist might believe the world is indeterministic while holding that free will requires the truth of determinism. Alternatively, such a compatibilist might believe that the world is deterministic but hold, of course, that determinism is not a sufficient condition for the existence of free will—and that other necessary conditions do not obtain in this world. Nobody seems to adopt this view.

[6] Note, however, that the unpredictable nature of libertarian agents would make predicting the beneficial or adverse consequence of any decision that much more difficult. This is true to the extent that indeterministic phenomena, by definition, “come out of nowhere” and, and such, are unpredictable. But an indeterministic world is only unpredictable to the extent it works in an indeterministic way. Indeterministic phenomena in a corner of the universe, far removed from our galaxy, would probably leave our own galaxy largely predictable.

[7] B. J. Scholl and P. D. Tremoulet, ‘Perceptual Causality and Animacy’, Trends Cogn. Sci, 4 (2000), pp. 299–309.

[8] ‘Pastoral Counsel for the Anxious Naturalist: Daniel Dennett’s Freedom Evolves’, Metaphilosophy, 36 (2005), pp. 436-448.

[9] Elbow Room: The Varieties of Free Will Worth Wanting (MIT Press, Oxford University Press, 1984) and Freedom Evolves (Allen Lane Publishers, an imprint of Penguin Books, 2003)

[10] This assumes, again, that the compatibilist believes that human beings generally possess free will.

[11] G. Rosen, ‘The Case for Incompatibilism’, Philosophy Phenomenol. Res., 64 (2002), pp. 699–706.

[12] ‘Soft Libertarianism and Hard Compatibilism’, Journal of Ethics (1999), 3(4), pp. 351-365.

[13] Free Will and Luck, (Oxford University Press, 2006), pp. 188-195.

[14] Indeed, Dennett has a reputation for ignoring many crucial aspects of the literature on free will. For example, Vargas notes Dennett’s “principled avoidance of many of the main issues in the philosophical literature (including disputes about arguments for incompatibilism and alternative possibilities)[.]” ‘Compatibilism Evolves? Some Varieties of Dennett Worth Wanting’, Metaphilosophy 36, no. 4 (2005), pp. 460-75, at p. 461.

[15] Paul Russell, ‘Selective Hard Compatibilism’, in Joseph Campbell, Michael O’Rourke and Harry Silverstein, eds., Action, Ethics and Responsibility: Topics in Contemporary Philosophy, Vol. 7 (Cambridge, Mass.: MIT Press, forthcoming).

[16] One can appeal to this claim of Sartre’s without being committed to any other aspect of his philosophy, such as his realism about radical freedom.

[17] One might distinguish between the reasons for which prisoners seek exculpation (e.g. “I didn’t do it” or “it was justified”) and those for which philosophers seek exculpation (e.g. “I’m not an unmoved mover”). But Dennett’s claim is that people want to be held responsible, and to disprove this point one need only show that people do not want to be held accountable–for whatever reason.

[18] Beyond Freedom and Dignity (New York: Bantam Vintage paperback, 1972).

[19] The Crime of Punishment: By Karl Menninger, M.D (New York: The Viking Press, 1968).

[20] A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice. Jeffrey L. Kirchmeier. 83 Or. L. Rev. 631