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]
I. Introduction
Will society come
to regard crime as a symptom of disease?
Or will society eternally 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 lead, inexorably, to such medicalization. Daniel Dennett argues that society will
eternally resist this temptation because people will always want to “take
responsibility” for their actions. This
article will argue for Greene’s predictions, contra Dennett.
II.
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 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] But, 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 on 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.[4] Greene and Cohen note that consequentialism is consistent with either theory of
punishment.[5] 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.
the brain has systems for folk physics
and folk psychology
2.
the folk psychology system presupposes
that other minds are unmoved movers
3.
the folk psychology system generates our
moral attributions
4.
the folk psychology system is flawed and,
when our understanding of physics reveals that humans are not unmoved movers,
we thereby lose the moral attributions we made about others
The crucial
premise, of course, which the compatibilist will resist, is the second. But Greene and Cohen cite research to show
that people do think of other minds in just this way.[6] 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 people will
lose their moral attributions, without the belief in others as unmoved movers,
or 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 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 temptatation 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[7]:
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.
their ability to adapt their behavior to
new information
3.
their being aware of and sensitive to
moral norms
4.
and where they regard themselves as free
and responsible agents
Dennett describes,
at length in his two books[8],
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
(uniting two great themes in Dennett’s philosophy: freedom and evolution). In articulating these requirements for
freedom and responsibility, Dennett is a typical compatibilist. Other prominent compatibilists,
such as
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 it. The employ what they call the “Boys from
1.
Mr. Puppet will satisfy any non-ad hoc
compatibilist requirements for freedom and responsibility.[9]
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 for Rosen when describing this argument.[10] But Watson made the same argument, in its
essentials, even earlier.[11] 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 an argument, which he calls the Zygote Argument, that is
almost identical to the BFB argument.[12]
Greene and Cohen
note that Dennett has not explicitly addressed the BFB argument (or largely
similar arguments like the Zygote Argument).[13] But he has addressed somewhat similar
arguments made by Al 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. 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). Without such deception,
one can imagine that 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?”
This kind of free will, as Dennett would say, 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.[14] 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.
If these arguments
are correct, then Greene and Cohen are right, contra Dennett, 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?
III.
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
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 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. 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.
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. But 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 claim: 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 worlds 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, or 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 designed, from the beginning, to always drive well. Similarly, cars could be so safe and
intelligent that they almost always avoid accidents and, 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 another 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). In the BTDA,
punishment and holding accountable are like chemotherapy: they are the least bad
options available. Just as oncologists
think “wow, it sucks that I have to give you this painful therapy, 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 somehow anticipate
conceptually possible objections like the one Greene and Cohen make.
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. 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. Their hopes for free
will and moral responsibility will be dashed.
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. One finds a
good example of this in death penalty jurisprudence--where legal and ethical
scrutiny is heightened.[15] 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 probably no going back. Indeed, most experts expect the Supreme Court
to soon follow
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
[1] ADRIAN RAINE, THE PSYCHOPATHOLOGY OF CRIME: CRIMINAL BEHAVIOR AS A CLINICAL DISORDER 243-44 (1993)
[2] Greene,
J. D. , Cohen J. D. (2004) For the law, neuroscience changes nothing and
everything. Philosophical Transactions of the Royal Society of
[3] Morse,
S. J. 2004 New neuroscience, old problems. In Neuroscience and the law:
brain, mind, and the scales of justice (ed. B. Garland), pp. 157–198.
[4] Of course, there is the technical possibility of believing that free will is compatible with determinism while also believing that free will is not actual. 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.
[5] Note, however, that the unpredictable nature of libertarian agents would make predicting the beneficial or adverse consequence of any decision that much more difficult.
[6] Scholl, B. J. & Tremoulet, P. D. 2000 Perceptual causality and animacy. Trends Cogn. Sci. 4, 299–309.
[7] "Pastoral Counsel for the Anxious Naturalist: Daniel Dennett’s Freedom Evolves," Metaphilosophy, 36 (2005), 436-448.
[8] 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
[9] This assumes, again, that the compatibilist believes that human beings generally possess free will.
[10] Rosen, G. 2002 The case for incompatibilism. Philosophy Phenomenol. Res. 64, 699–706.
[11] "Soft
Libertarianism and Hard Compatibilism." Journal
of Ethics (1999), 3(4):351-365.
[12] Free
Will and Luck.
[13] 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): 460-75, at p. 461.
[14]
Russell, Paul. "Selective Hard Compatibilism",
in Joseph Campbell, Michael O'Rourke and Harry Silverstein, eds., Action,
Ethics and Responsibility: Topics in Contemporary Philosophy, Vol. 7 (
[15] 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