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Buddy the Elf

    Dr. Jeremy Kirby


    March 26, 2012

    Free Will and the Law

    The concept of “free will,” has been considered an important issue for philosophers and

    scientists alike, going as far back as Rene Descartes in his Meditation IV. It is continuing to be studied today by many individuals in many areas of study. One area in which free will holds a particularly high importance is the field of law. Its existence holds such a high importance due to the fact that, without free will people under the law lack responsibility for their actions. The debate over free will and the law has been argued in three main ways; we have some free will but it is influenced by other factors at times, we do not have free will at all, we have complete free will and moral responsibility. Each of these theories provides a valuable explanation and interacts very uniquely with the structure of the legal system. However, the one that appears to provide the best theory is that free will is present but also influenced by factors such as genetics or injury to the brain.

     It is no doubt that the existence of free will is very important to the current structure of law. Without free will, there is a lack of responsibility and thus no way to enforce a law. For instance, in the state of Michigan it is illegal to own a machine gun. By owning a machine gun it is assumed that the person is disobeying the law on their own free will. Thus, if they are caught, they will be charged with breaking that law due to the fact that they broke the law. However,

    people do not have free will how would a law about machine guns be enforced? If a person could not help their actions then can they be held accountable? The legal system already recognizes this lack of responsibility that goes along with the absence of free will by providing reduced or no punishments at all for those who lacked some free will when they committed a crime. For example those who are mentally ill, they can plead “not guilty by reason of insanity” in which they argue that they were “so mentally disturbed at the time of the crime that he/she

    lacked the capacity to have intended to commit a crime” ( Therefore, if

    such leniency is already given to those who lacked free will due to deficiencies in their mental health it is certainly possible that more leniencies could be given if free will was proven to be limited of even non-existent.

     One popular opinion belonging to many philosophers is that free will does exist but not all the time and thus we should not always be held morally responsible in these instances. One specific researcher who argues for this view is Maureen Coffey. In her paper The Genetic Defense: Excuse or Explanation?, she states that “the fundamental philosophical premises of our

    current criminal justice system, a model based upon the notion of free will and limited causal excuse”(Coffey). Meaning that if a person can prove that they were unable to exercise their free will they can argue that some other factor out of their control was at fault. Therefore they are either not punished or are punished much less. She believes that instead of just having free will as a cause for our actions, there is a biological aspect of our being that influences how we behave. She feels that this component is our genetics which can affect our decision making, which we can’t change. This genetic component adds a certain amount of determinism to the argument

    because we can’t change our genetic makeup. She states that if it can be proven that a person’s genetic makeup is what made them act a certain way, they should not be held morally

    responsible. She does admit in her argument that this genetic defense is difficult to prove because there is still fairly limited knowledge about genetics. However, she states that there is some new research that anti-social behaviors have a genetic component and thus genetics should begin to be considered in the courtroom as a valid defense.

     Another explanation under the view that free will only plays one part in our moral responsibility is that, differences in structure of the brain caused by deformities or injuries can make it more difficult, if not impossible for a person to exercise their free will. This view is proposed by Cato Cato et al(2004) looked into the case of Phineas Gage, a man who received a severe brain injury when a pipe went through his frontal lobe. Before the incident he was considered a very moral, kind person who was the “most efficient and capable foreman of the railroad construction team.”(Cato 2004) However, after his injury he exhibited the

    characteristics of being “cognitively inflexible, impulsive, and uninhibited.” It was stated by his

    doctors that “He is fitful, irreverent, indulging at times in the grossest of profanity (which was not previously custom, manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires” (Cato 2004). Therefore, Gage’s personality

    involuntarily changed from a responsible, moral person to an irresponsible immoral person who no longer cared about his actions.

     Although this is an extreme case, Gage’s injury shows that changes to a person’s brain

    structure can result in a subsequent loss of free will. One could not hold Gage accountable for his actions after his brain injury because he simply lacked the ability to freely control some of his actions. Furthermore, if a person with a similar injury commits a crime, it can be argued that they did not have the free will to stop the crime and thus cannot be held criminally responsible for their actions. As it stands today defense lawyers are attempting to use frontal lobe injuries or

irregularities as a defense for their client’s criminal activity. However, our understanding about

    how specific types of frontal lobe injuries play a part in our decision making is still relatively limited so one cannot say for sure if it should be allowed as a defense in the court room (Batts 2009).

     Another type of explanation to explain how the law and free will should coexist is that we do not have complete conscious awareness over our actions and thus at times the illusion of free will. This view is proposed by Benjamin Libet. He came to this conclusion after he conducted an experiment that specifically examined free will. This experiment more specifically looked at how “Freely voluntary acts are preceded by a specific electrical charge in the brain (the readiness

    potential’ RP) that begins 550 ms before the act” (Libet 1999). However, he further stated that “Human subjects became aware of intention to act 350-400ms after RP starts, but 200ms before

    the motor act” (Libet 1999). As a result there actual decision to act comes before the person is

    conscious of the intent to act. According to Libet, this creates a problem of free will because if one does not consciously recognize the fact that they are going to act a certain way, then their will may not be so free as has originally been assumed.

    Despite Libet’s criticism’s on free will, he does not fully rule it out. Instead, he states that “conscious function could still control the outcome; it can veto the act. Free will is therefore not excluded” (Libet 1999). Therefore, free will can still play a part in how we decide to act. However, with that said, it is clear that Libet’s findings impact how the law should interact with a person’s will to act. Libet suggests that a person may unconsciously decide on the desire to act

    a certain way. However, they have the conscious will or “free will” to decide to act or not to act

    in some situations. Therefore, if a person has a this ability the law should still hold a person’s will as a great importance but should analyze further what situations a person may have

    decreased will to act. With that said however, Libet states that, there is limited evidence as to what his findings may really imply and as a result there is a need for further research to be done on this subject.

     A third alternative theory on free will is that we have complete free will and therefore should be held morally responsible. This theory is most popularly held by Robert Kane in his theory on free will and deterministic self-forming actions in which there is not one single future action but many. He states that in the past there has been a separation between free will and determinism. He believes that this is incorrect and that these two theories are in conflict with one another. His logic is that “it must be the case that, if these determining conditions obtain

    (e.g., physical causes and laws of nature), then the determined event occurs”(Kane199).

    Furthermore, he believes that a person has the opportunity to change their action if due to the existence of “alternate possible world,” which revolve around differences in decisions to act

    or not to act, in other words, there is more than just one potential action. His theory continues by stating that with these potentials in action come with the moral responsibility that coincides the

    act of making decisions. An example that best illustrates this indeterminacy of potential actions is the assassin example. In this example an assassin is aiming his/her weapon at their target. They decide to make the shot and their shot either kills the target or does not kill the target. In both scenarios, their actions are morally reprehensible and do not avoid responsibility. They could have made the choice to not take the shot and make the morally correct decision. With this example Kane also refutes the possibility that our actions are simply a matter of good or bad luck.

    When it comes to the law, the way Kane’s theory impacts the law is very significant. Under his theory, we have complete moral responsibility because we make choices on how we

behave. Since there are possible worlds where we either act or don’t act in the given situation.

    Therefore, if one were to break a law they would not be able to use any type of defense which they stated they were unable to dictate their actions or that their actions were not within their control. Kane would almost certainly argue against Libet’s work because it completely disagrees

    with the potential for a large involvement of free will.

    On the whole, the theory that appears to be the most logical is that which advocates for the belief that we have free will, but this free will can be affected by physical differences within our brains. This theory seems to be the best, due to the fact that it can provide distinct physical examples in the form of empirical studies which show changes in free will when these physical differences are present. For instance, in the case of Phineis Gage, there was evidence that suggested that Gage had lived a morally acceptable life prior to the damage that he sustained to his brain. After the injury, he was highly immoral and unable to control his actions. Thus he had diminished free will. This type of direct evidence could thus be used in a court room setting especially if there was a very similar case to Gage’s. Libet’s study can provide this empirical evidence but it fails to be the best theory for the law because Libet admits that further research still needs to be done to fully explain his findings. Kane’s theory fails in this respect because it

    cannot be studied empirically; it is merely a logical deduction. In fact, most modern studies that are done on free will admit that our actions can sometimes be effected by things other than our own volition.

    Another reason that this theory is more believable is that it can pinpoint areas in the brain in which the capacity for free will resides. This can be seen in Gage’s case in the area that was damaged or in genetic differences in a normal brain compared to that of a morally reprehensible individual. The physicality of this theory makes it much easier to test, which results in more

    opportunities to study this phenomenon. These opportunities result in more empirical evidence that can be used to support this theory of free will. This empirical evidence can be used to advocate for those who may have taken part in a morally reprehensible act. This evidence can be shown in the form of brain scans or expert testimonies. This cannot be done with Kane’s theory. Despite the fact that his theory can account for a brain damaged individual with possible worlds and determinism based on the factors present(such as brain damage), it still cannot provide the physical evidence in a courtroom setting. Libet’s theory does not fail in this respect because

    physical evidence can be shown in the form of brain scans in different areas of the brain. However, for the law, it is not the best theory because it still does not provide a full understanding of what these results on this delay in conscious awareness truly means for free will.

    One of the most important reasons as to why they physical differences theory is the best theory is due to the fact that it allows for moral responsibility and at the same time allows for a lack of moral responsibility in some circumstances. Put more simply, it allows for the best of both sides of the argument. Therefore, if a person, in a courtroom setting, can provide sufficient evidence that they were unable to exercise their free will they can accept less moral responsibility. However, if there isn’t sufficient evidence they are forced to accept moral

    responsibility. Kane’s argument does not provide for this type of flexibility and neither does Libet. Each of their arguments are quite firmly on one side or the other of the argument for free will.

     All in all, it is clear that of these three arguments for free will, that we have free will but it is affected by physical differences in the brain, that we don’t have free will at all, and that we only have free will and are therefore always morally responsible for our actions; the first one

provides is the best theory for use in the law. The two other theories provide valuable

explanations but the first one simply provides the best evidence.


    ; Kane, Robert. The Significance of Free Will. New York: Oxford UP, 1996. Print. ; Batts, Shelley. "Brain Lesions and Their Implications in Criminal Responsibility."

    Behavioral Sciences & the Law 27.2 (2009): 261-72. Print.

    ; Cato. "Supreme Court Review." Individual Liberty. Print.

    ; Coffey, Maureene. "The Genetic Defense:Excuse or Explanation." William and Marry

    Law Review 13th ser. 35.1 (1993). Print.

    ; "Michigan Gun Control Laws." - FindLaw. Web. 12 Apr. 2012.

    ; "Search Legal Terms and Definitions." Legal Dictionary. Web. 12 Apr. 2012.

    . ; Libet, Benjamin. "Do We Have Free Will?" Journal of Counciousness Studies (1999):

    47-57. Print.

    ; O'Connor, Timothy, "Free Will", The Stanford Encyclopedia of Philosophy (Summer

    2011 Edition), Edward N. Zalta (ed.), URL =


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