Heading Off the Revolution

There is now a revolution afoot, driven by biology, neuroscience and behavioral economics, in how we conceive of our essential nature. This could have dramatic implications for reconceiving criminal justice, calling into question retribution and the harsh treatment so often justified by meting out just deserts. But, at least in the talk critiqued here, Dan Dennett wants to head off any revolution in our criminal justice practices in light of naturalism

If you want to start a revolution, you can rally the troops by pointing out some manifest injustice perpetrated by the powers that be. You publicize a central flaw or contradiction in the reigning ideology which, by rationalizing the injustice, serves the ruling party’s agenda. Having stripped away the pretense and bad faith, the revolution institutes a just regime based on truth, and a new day dawns.

The self under revision

There is now a revolution afoot, driven by biology, neuroscience and behavioral economics, among other empirical disciplines, in how we conceive of our essential nature. The essence of it is that we aren’t essences, but constructions, biological constructions that might appear to themselves as if they have souls, but don’t. There isn’t, sitting in the head, a mental ego or immaterial controller that supervises operations. The brain and body do it all, consciousness, choice, and action; and it’s all fully caused – the result of the moment to moment interaction of person and environment. Both person and environment have their causal histories, stretching back as far as you care to look. And as far as science can tell, there isn’t anywhere in this picture an unconditioned intervener, a wielder of free choice that, given the conditions as they were at any point in this history, could have interfered to make things turn out otherwise. Persons and their behavior, like everything else in nature, are potentially explicable in terms of the cause and effect relations that obtain locally. There’s no evidence that we have what philosophers call libertarian or contra-causal free will, the power to have initiated a choice de novo such that it isn’t fully the result of antecedent conditions inside and outside the person.

Revolution, or not?

This rather deep revision in the standard Western model of the self, the denial of the freely willing soul, is gradually coming to light, so the question arises: what follows? If it’s the case that many, perhaps most folks are mistaken about their essential natures, does this have any concrete implications?  It might, were it also true that basic attitudes and social practices are predicated on the mistake. If many people believe, for instance, that punishment is deserved by virtue of the fact that the offender could have done otherwise at the time of the crime, then realizing that he couldn’t might spark a revolution in our thinking about criminal justice by undermining justifications for retributive punishment. Likewise, if people widely believe that those in poverty aren’t fully caused to be poor, then realizing that they are fully caused might spark a revolution in attitudes about economic inequality. We can’t blame the poor in the way that perhaps some (mostly conservatives) suppose they deserve to be blamed, nor, in that bootstrap-based way, do the rich deserve our admiration or their riches. So the revolution in our conception of the self might have some pretty revolutionary implications for beliefs, attitudes and policies tied to that conception.

Or perhaps not. Perhaps it’s the case that most folks don’t believe that they have souls and contra-causal free will, in which case the emerging scientific model of the self is old news. Further, some philosophers argue that even if people do believe this, nothing revolutionary follows from getting our dualistic, quasi-supernatural ideas about human nature straightened out. Our beliefs, attitudes and social practices are not essentially tied to belief in libertarian free will, so challenging that belief has no deep social implications. If belief in such free will disappears, criminal justice can continue on as before, since people still deserve punishment, they argue (see here, here and here). Likewise, those who make bad choices and end up in poverty still deserve to be poor, even though those choices are fully determined. The notion of moral desert survives the death of libertarian free will, so no revolution is in order.

Should we shield the folk from science?

The question of what people actually believe about free will, determinism, desert and moral responsibility is now the focus of research conducted by experimental philosophers such as Shaun Nichols, Joshua Knobe, Eddy Nahmias, Thomas Nadelhoffer and others (see the x-phi website). Data thus far is, as they say, preliminary, in that methodological issues of how best to measure these beliefs are still being debated. But so far it looks as if a sizeable proportion, perhaps even a majority of people (depending on how the question is presented) have the intuition that human decision-making is not fully determined.[1] If so, then the challenge of science to contra-causal free will might well conflict with the basic beliefs of a good number of individuals. As someone in the business of debunking free will, it’s been my experience that many folks do indeed harbor the belief that they are causally privileged (that is, self-caused or uncaused) choice-makers. In any case, it’s clear that many philosophers and psychologists assume that such a belief is widely held, since they argue about whether it’s a good idea to discuss determinism and free will in public. Israeli philosopher Saul Smilansky advises academics to keep all this under wraps, since he believes it’s essential for psychological health and social functioning to maintain the fiction of contra-causal freedom. Psychologists Kathleen Vohs and Jonathan Schooler agree, since they have produced experimental results that they believe show the demoralizing effects of undermining belief in free will (see here and here).

Daniel Dennett, influential philosopher of mind and avowed determinist, thinks otherwise, and in his books and public presentations goes right to the heart of the matter. We grown ups can handle the truth about ourselves, he argues, since nothing of significance, nothing worth wanting, depends on having libertarian free will; see his books Elbow Room and Freedom Evolves. Moreover, he assures us, this revolution in our self-concept (should people indeed have libertarian intuitions) does not entail any concomitant revolution in attitudes and social practices. We can assimilate the science of the self without changing our beliefs about desert, so we need not change course, at least not much, in criminal justice or any other policy domain.

Criminal justice: competing proposals

All this comes out in a 2007 lecture he gave at the University of Edinburgh, “Is science showing we don’t have free will?” available here. In the lecture foreword, he says

Recent work by psychologists and neuroscientists has suggested to many that science is on the verge of demonstrating that free will is an illusion. Some thinkers suggest, moreover, that the recognition of this fact, as it spreads, will have profound, even revolutionary, effects on our sense of moral responsibility. Is the Age of Moral Responsibility about to end, and what might replace it?

I will show that the only varieties of free will that science shows to be illusory are not worth caring about in the first place, incoherent doctrines that are not in fact presupposed by our best traditions of moral or legal responsibility.

We are responsible, tradition says, only for those actions where we “could have done otherwise,” but this important phrase has been misconstrued to imply that responsible agents need powers that would indeed be as impossible as perpetual motion machines.

But this is a mistake; the powers we do have are quite marvellous, and far in excess of the powers of any other species, and these powers are the proper foundation for maintaining a tradition of moral responsibility that is somewhat revisionist, but not revolutionary.

In his talk, Dennett starts out by contrasting his mildly revisionist position with the more radical proposal offered by Joshua Greene and Jonathan Cohen in their paper, For the law, neuroscience changes nothing and everything. In it they argue that dropping the fiction of libertarian free will should prompt us to abandon retributive punishment, since after all it’s belief in such free will - that the offender could have done otherwise at the time of the crime - that ordinarily underwrites the claim he deserves retribution. As they put it: “Free will as we ordinarily understand it is an illusion generated by our cognitive architecture. Retributivist notions of criminal responsibility ultimately depend on this illusion, and, if we are lucky, they will give way to consequentialist ones, thus radically transforming our approach to criminal justice.” On their view, we should only punish if it has good consequences, not because criminals deserve it.

This would indeed amount to a radical transformation, since retributive justice is central to the criminal law, especially in the US. Many believe that in deserving retribution for their crimes, offenders should be subject to very punitive regimes of incarceration, or be put to death in some cases. As a result, many prisons are notoriously tough on inmates, imposing suffering that often makes them more dangerous, disordered and alienated. But if inmates don’t deserve to suffer (or die), then any suffering they undergo would have to be justified on consequentialist grounds, for instance to deter future crimes or to instill respect for moral norms, including treating people non-violently. Assuming that all parties to the debate share the humanistic value of reducing unnecessary suffering, those wanting to inflict punitive regimes of incarceration (or death) would have to show that inmates’ suffering, beyond that caused by confinement necessary for public safety, actually worked as a deterrent or to instill moral norms. Moreover, they would have to show that less punitive regimes wouldn’t work as well. This is a fairly high burden of proof. Retributivists, on the other hand, are under no such burden, since the desert justification for punishment need not show that inmates’ suffering brings about any good consequences. Their suffering is obligatory, whatever outcomes ensue. So dropping the notion of obligatory, deserved suffering would indeed revolutionize our thinking about criminal justice, and would focus attention on the question of just how punitive we need to be to achieve public safety, deterrence and strong norms.

The imagined perils of consequentialism

Dennett didn’t mention these points in his talk. Instead, his response to Greene and Cohen was to suggest (and only suggest, not show) that a consequentialist criminal justice system would entail Clockwork Orange scenarios in which inmates could be subjected to any sort of procedure if it “cured” their propensity to crime. He warned against Karl Menninger’s book The Crime of Punishment, “one of the more oppressive and ominous proposals ever to come along,” and against the prospect of Skinnerian conditioning as a substitute for punishment, but without getting into the specifics. The intended implication, though, was obvious: to abandon desert and retributive punishment for consequentialism means that anything goes in how we treat criminals, and we don’t want that sort of revolution, do we? Of course not, so we should dismiss Greene and Cohen’s misguided proposal: “If the suggestion coming from Greene and Cohen is that we should move towards a treatment model of punishment, then some of us, I think, want to put on the brakes and say hang on, I’m not so sure this is humane after all.”

But of course no humane, thoughtful consequentialist would accept Dennett’s implication, since to abandon the idea of retributive desert isn’t to abandon the idea of human rights, in particular the right to one’s own bodily integrity and the right to decline treatment. These count as strong humanitarian constraints on what procedures inmates (and patients, obviously) should be subject to, and these hold independently of one’s theory of punishment. In particular, just because we might suppose someone doesn’t deserve punishment, but instead needs rehabilitation and moral correction, doesn’t give us license to use any means necessary to achieve these outcomes. So Dennett’s suggestion that Greene and Cohen’s consequentialist revolution would necessarily be inhumane was left unsupported.

Determinism vs. fatalism

Dennett went on to say that we should indeed “gently and humanely” reform (not revolutionize) criminal justice, “splitting the difference” between retributivism and consequentialism, but he didn’t elaborate on what this would mean for criminal justice practices. In any case, the rest of the talk was devoted to the question of free will and moral responsibility. Are these being undermined by science? Dennett argued that even though our component parts, and we ourselves, are fully subject to determinism (the thesis, as he defined it, that “there is at any instant exactly one physically possible future”) we still have powers of action and control that can justly be called “free will.” We are, he argued at length, very good avoiders of harm, so to say that everything is determined isn’t to say that everything’s unavoidable. This distinguishes determinism, the idea that things are caused, from fatalism, the idea that that no matter what I do, I can’t avoid a particular, specific fate. The fatalist says: Hey, if I’m destined to die in a car crash on a particular day, it doesn’t matter how I drive, right? Wrong. How you drive very much helps to determine whether you die in a car crash, and if you do (perhaps by no fault of your own), on what day. We often act to successfully avoid something that might otherwise happen. Dennett’s example was dodging so as not to get hit by an oncoming brick. So what we do does make a difference in outcomes, even if we’re fully caused to do it. Therefore fatalism doesn’t follow from determinism. Human actions have just as much causal power to affect the world as do the factors which determine those actions.

Could have done otherwise: can it justify retribution?

What conclusions can we draw about moral responsibility and desert from having the free will of flexible, conditions-sensitive, reasons-responsive action, (what philosophers call compatibilist free will since it’s compatible with determinism)? Having such powers (or competence and can-do, as Dennett also called it) means that we can respond to different situations appropriately in order to get what we want, which means we can rightly say that we could have done otherwise, had the actual situation been somewhat different. The thief, being standardly sane and rational, would not have stolen the purse if a cop had been on the corner – he could (and likely would) have acted otherwise, as opposed to a crazed kleptomaniac for whom the presence of the law wouldn’t have been a deterrent. It’s this sense of could have done otherwise that Dennett argued is morally relevant, since it picks out agents that we can justly hold responsible. We don’t hold true blue kleptomaniacs, the insane, young children, or the those coerced into wrong-doing responsible since they aren’t responsive to social norms, or are forced against their will into flouting them.

Fair enough, but what about desert and retribution? Dennett acknowledged that we don’t have “cosmic desert” of the sort that libertarian free will – being exempt from determinism – makes possible. But we do, he implied, have sufficient terrestrial desert to justify acting on our retributive inclinations, enough to block Greene and Cohen’s consequentialist proposal. There’s no explicit argument for this; instead, Dennett’s strategy is to disparage the idea that we should pay any attention to the actual situation the offender was in, and therefore to the fact (which Dennett as a determinist admits) that he couldn’t have done otherwise in that situation. The only morally relevant sense of “could have done otherwise,” he claims, is that involved when we imagine the offender in non-actual situations (what philosophers call counterfactuals): “We’re never interested in ‘conditions as they precisely were,’ because they would tell us nothing about causation and nothing about competence, and competence is what we care about.” (59:40)

But of course the “conditions as they precisely were” in the actual situation are what explain the behavior in question: it’s a deterministic function of those conditions. Considering the actual situation is what highlights the conflict between the cause-and-effect scientific understanding of the self and libertarian conventional wisdom. Many people suppose that it’s the agent’s contra-causal free will which ultimately explains behavior, so that the offender could have done otherwise in the actual situation, whereas the scientific understanding of behavior says no, he couldn’t. Because it challenges the fiction of the libertarian agent, often used to justify “cosmic desert” and retribution, considering actual situations from a scientific, naturalistic perspective is at least as morally relevant as considering counterfactuals. Considering counterfactuals helps to define the class of morally responsible agents, but considering actual situations is crucial in avoiding quasi-supernatural notions of ultimate moral responsibility, those which are often used to justify very punitive criminal justice regimes (see here about the two senses of could have done otherwise, here about the real world implications for criminal justice). By deflecting attention from actual situations, Dennett, intentionally or not, conceals the revolutionary implications of his determinism for the law. 

The case for the revolution

In the end, Dennett never says how his competence notion of compatibilist free will justifies the desert-based, “backwards-looking” retributive punishment that Greene and Cohen (and I) want to do away with. The implicit argument seems to that because offenders have (compatibilist) free will[2], and therefore moral responsibility, they should suffer whether or not it brings about good consequences – the essence of retribution. But of course one wants to know why being competent to respond differently in possible situations makes such non-consequentialist suffering obligatory. What’s the logical connection? Moral agents, according to Dennett, are just those that can adjust their behavior to avoid bad consequences; they are those whose behavior can be guided by the prospect of moral and legal evaluation and perhaps punishment. If so, why should punishment be inflicted when it need not serve, or does not serve, any behavior guiding function or bring about other good consequences? Explaining this would help clarify Dennett’s case for retribution and against the consequentialist revolution in criminal justice.

What motivates the revolution is the insight that people, because they are fully caused in their character and behavior, aren’t ultimately responsible in the way many of us suppose. Therefore, should they commit a crime, they don’t bear the sort of ultimate, cosmic desert that mandates non-consequentialist punishment and suffering of the sort our criminal justice system routinely metes out. It’s this humanitarian and very practical implication of determinism for our responsibility practices that Dennett seems determined to downplay, which is too bad. Worried about “creeping exculpation,” he perhaps feels it’s necessary to maintain the retributivist line, lest we relax our moral and legal standards. But we can maintain our standards perfectly well without trafficking in a retributive desert that has no naturalistic justification and that causes such unnecessary and counterproductive suffering. Nor would we, as he darkly implies, fall into consequentialist excess by relinquishing desert-based punishment, since our commitment to human rights remains intact.

Is science showing we don’t have free will? Not of the compatibilist variety Dennett recommends to us (see note 2 below), but it very much undermines the libertarian free will of the soul, that which many suppose makes us exceptions to causal laws. Dennett wants us to believe that nothing of great moment hangs on this, since compatibilist free will gives us everything we need to be morally responsible. But while it’s true that moral responsibility survives science, our current responsibility practices may not, and for good reason: some of them, such as our practice of retributive punishment, are grounded in the myth of human causal exceptionalism. The science-based revolution in our understanding of who we are, that we don’t transcend cause and effect, should be reflected in those practices to make them more humane and effective.

TWC, March 2009


[2]  At one point in his talk Dennett jokingly called compatibilist free will “the cheap substitute,” admitting it doesn’t give people quite what they were hoping for. Although Dennett says libertarian free will isn’t worth wanting, many want it nonetheless, since only it can underwrite ultimate, cosmic desert.

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