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Rewiring the brain, free will and criminal responsibility

  • May 13th, 2013

Deborah Hill Cone in the Herald has also noted the sinister side of the Labour Justice spokesperson's beliefs on what the state should do with criminals. I posted on this earlier this month.

The  friend who drew her column to my attention says "She cannot bring herself to state the obvious, that talking about rewiring crims brains is creepy elitist nonsense (Clockwork Orange) that distracts from the things that can be done"

Perhaps, but I think she deals with the issues thoughtfully nevertheless, in a return to form on serious topics.

As we get closer to knowing the physical elements of thoughts, and even 'the soul', it may become harder (or easier) to defend notions of free will, and accordingly the useful moral distinctions between mad, bad and simply unwitting. Conscious choices and exposures over time may create synaptic patterns that predestine. That would be consistent with the intuitive wisdom of those who have long wanted to ban pornography, for example, while worrying how to prevent the precedent from opening the door to those who hate free speech.

Neuroscience may come to support long incapacitative custodial sentencing, as the only way to protect the rest of us from those who are predestined to hurt others. Or it may enable them to choose 'rewiring' instead.

That is all for the future. In the meantime we may come to attribute the 'blame' that justifies retributive justice less to the evil event, as to the preceding pattern of choices. On other words there may be a tendency to punish or control for being a 'bad person' more than for particular bad behaviour.That is effectively what the M'Naughton rules on holding drunks to account do, drawing sufficient 'mens rea' or the guilty mind from thewillingness to get drunk and therefore lose normal control. It has always been problematic in theory, though essential in practice.

The law must remain pragmatic. There are  a number of indispensable 'fallacies' without which the law just will not work. For example, everyone is deemed to know the law, though patently none could possibly now know the vast sea of rules in which we now swim. That fallacy is essential, because without it who would not claim ignorance of a law when charged.

So even if neuroscience makes free will shaky, we'll need to deem it. We must attribute to people responsibility for their actions, as well as the right to choose courses others think undesirable if freedom is to be defensible intellectually, and endurable in practice.



The notion of free will, personal responsibility and choice must remain at the core of our understanding of what it means to be human, otherwise what is the alternative? Predetermined and scripted behaviour from birth?

The progressive left have been challenging the idea of ‘crime and punishment’ for decades now, primarily because they lean towards our being ‘environmentally’ determined. Nurture is a factor no doubt, but if we allow it to become primary then we have no basis for punishment at all, just the frightening prospect of State ‘re-education’ for the antisocial and the enemies of society.

No doubt they can be more subtle than Pol Pot, but the effects are just as chilling.

  • Mike Mckee
  • May 13th, 2013
  • 3:46 pm

Good points Brendan.
I suspect that we have free will but that can be channeled by our past choices, rather like making a groove that gets followed.
Punishment whether ostrasised or physical or other means may well be the causes that we re wire naturally.

But at some time we make a choice.

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