Determinism is a metaphysical theory that every event in the universe happens as a necessary consequence of antecedent events and conditions together with the laws of nature. Determinism is a “metaphysical” theory because its truth could only be established from a position outside the universe, looking down at it, as it were. Determinism so understood has since almost the beginning of Western philosophy seemed to present a threat to the very foundations of the ethical practices of praise and blame, responsibility and liability, especially those practices that constitute the criminal law as a social system. These practices have at their core the ideas of voluntariness and choice. They are based on the fundamental value of the individual human being as an autonomous and rational chooser, and that a criminal justice or penal system will be just only if its rules and procedures for identifying culpability, responsibility, liability, and desert are rooted in this value. If, however, as determinism alleges, every event that happens has a necessitating cause, then no action is the outcome of voluntary choice, and any system that assigns punishment on a basis of culpable or responsible choice rests on error and fantasy.
Distinctions need to be made and their implications explored. Familiar normative standards found in the criminal law already embody a partial acknowledgment of the implications of determinism. There is the Phineas Gage paradigm. Gage was a 19th-century railroad construction worker whose brain was severely damaged in an accident and whose behavior markedly changed for the worse after the accident. Even if the truth of the matter is less dramatic than the legends that have grown, Gage stands for the idea that an agent can do wrongful acts as a result of a physical cause, brain damage, and as a result incurs no culpability or responsibility for those acts. The law exploits this paradigm in allowing defenses such as insane automatism.
The Supreme Court of Canada, for example, follows a “principle of moral involuntariness,” a principle that it sees at work in defenses like provocation, duress, self-defense, and necessity. A person who does harm in self-defense or under duress certainly in one sense acts voluntarily: he or she is not suffering from anything like legal insanity. But from the moral point of view it is as if they caused harm involuntarily: They could not but choose to do what they did. Further extensions of the Phineas Gage paradigm become more controversial. Are there such things as “dissociative states,” such that when in such a state a person acts involuntarily and therefore nonculpably? Is it possible for a person to be so intoxicated that they act involuntarily? To what extent does a disease of the mind such as paranoid schizophrenia cause a person to act in such a way that what they do is not done voluntarily?
The distinction is made between external determining causes and internal determining causes. In Gage’s case the iron rod that pierced his brain would be an external cause. The gangster who holds a gun to a person’s head and tells them to open the safe and give the money to him is an external cause. A state of the brain that is responsible for acts of insane automatism is an internal cause. As H. L. A. Hart pointed out long ago, people are more comfortable withholding culpability or responsibility when there is a clear physical element, whether internal or external, that can be seen to be a causal agent overcoming someone’s will. When dealing with the more intangible speculations of psychological theory, asserting the operation of deterministic forces becomes more problematic.
These various legal (and ethical) doctrines of excuse on grounds of a determining cause that negates voluntariness are a part of a larger scheme of legal and ethical norms that define culpability and responsibility. They do not challenge this larger scheme, but supplement and enrich it. Culpability and responsibility continue to be based on choice: It is simply part of this project to acknowledge that in cases where there is no choice, there is no culpability or responsibility. Moreover, determinism in this context is just a part of the science of the matter—again a supplementation of, rather than a challenge to, the fundamental normative scheme of voluntariness. Determinism as a metaphysical theory is a different matter. Determinism as a metaphysical theory postulates that everything an agent does, all human action conforms to the Phineas Gage paradigm. Even though a man may lack an iron rod through his brain, he is no more responsible for the things he does in anger than Gage was for the things he did in anger. The healthy man’s actions are as much necessitated by some antecedent physical condition as Gage’s were. The difference is the difference between two different states of the brain, not the difference between action caused by a state of the brain and action caused by the will.
Contemporary cognitive neuroscience has given an enormous boost to determinism’s colonization of the Phineas Gage paradigm. As a result of advances in the discipline, it has become clear beyond any doubt that as a matter of fact the brain is the material substrate of the life of the mind. Great advances have been made in finding which parts of the brain are active when certain actions or even mere thoughts are occurring and therefore are in some sense “responsible” for those actions or thoughts. Researchers are discovering that by manipulating the brain in various ways, actions can be caused independently of the will of the experimental subject. Scientific determinism can take such results and use them without deserting the Phineas Gage paradigm. If, for example, it can be shown that there is a very particular state of the brain that occurs when and only when a person is lying, or that occurs when and only when a person is acting with intent, then investigators will have far more reliable indicators as to the presence or absence of highly material mental factors to use in criminal proceedings. If it can be understood more exactly how various drugs affect the brain, or how alcohol affects the brain, law enforcement may be in a much better position to assess the satisfaction or otherwise of the conditions of culpability and responsibility that ethics and law locate in how it is with the individual agent’s mind.
Metaphysical determinism has a different ambition and a different focus. The metaphysical determinist argues that, because it is known now through cognitive neuroscience that everything people do is the result of brain function, and it is known that the brain as a physical object obeys deterministic causal laws like any other physical object, everything that people do is necessitated by some prior state of the brain. Phineas Gage is the paradigm, not of certain valid exceptions to the norm of voluntary action, but of human action itself. No actions are done by choice; all are caused by states of the brain. Just as Phineas Gage was neither culpable nor responsible for the things he did that were caused by his brain damage, so no one can ever be culpable or responsible for the things he or she does that are in fact caused by brain nondamage, by the normal functioning of people’s brains. The whole scheme of ethical and legal norms of culpability, responsibility, and liability rests on a factual error: It rests on the belief that their actions which occur by choice, when in fact there are no such actions.
There seem, therefore, to be huge implications for criminal justice ethics from metaphysical determinism, as indeed there would be if it were correct. It cannot, however, be correct. Or rather it cannot be known to be correct to the extent that society is forced to change the way that in ethics and law people think about culpability and responsibility. Even if metaphysical determinism were correct, the whole scheme of human thought is built on the concept of a person as a being with the power of choice, and the whole ethical and legal scheme of culpability and responsibility is built on that concept as well.
The idea that that all human action is caused in the way that Gage’s actions were caused by the rod in his brain makes sense only if the Gage paradigm is suspended. Metaphysical determinism calls simultaneously for the application and the suspension of the Phineas Gage paradigm and the whole familiar scheme of culpability and responsibility of which it is a part.
- Hart, H. L. A. Punishment and Responsibility. 2nd ed. Oxford: Oxford University Press, 2008.
- Jones, Owen D., Joshua W. Buckholtz, Jeffrey D. Schall, and Rene Marois.“Brain Imaging for Legal Thinkers: A Guide for the Perplexed.” Stanford Technology Law Review, v.5 (2009).
- Morse, Stephen J. “Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience.” Minnesota Journal of Law, Science and Technology, v.9 (2008).
- Morse, Stephen J. “Neuroscience and the Future of Personhood and Responsibility.” In Constitution 3.0: Freedom and Technical Change, Jeffrey Rosen and Benjamin Wittes, eds. Washington, DC: Brookings Institution Press, 2011.
- Vincent, Nicole A.“Neuroimaging and Responsibility Assessments.” Neuroethics, v.4/1 (2011). National Cancer Biotechnology Information. National Institutes of Health. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3053453 (Accessed September 2013).
- Waldbauer, Jacob R. and Michael S. Gazzaniga. “The Divergence of Neuroscience and Law.” Jurimetrics, v.41, 2001.
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