(Article
originally published in 2005 Ohio State Journal of Criminal Law 2.2,
471-483: journal web page: http://moritzlaw.osu.edu/osjcl)
DAVID
HODGSON[1]
Abstract: I have argued elsewhere that respect for human rights
requires a robust notion of responsibility, and that this in turn depends on
folk-psychological ideas including free will; and also that such ideas need to
be articulated in such a way that they can be used in combination with
contemporary science in the development of the criminal law. Stephen J. Morse contends that
responsibility is explained by our capacity to grasp and be guided by good
reasons, and that this is so despite the truth of determinism. In this article, I consider whether Morse’s
criterion is sufficiently robust to support human rights in an era when science
is suggesting that behaviour is just the causal product of genes and
environment, and whether the criterion is such that it can satisfactorily be
used together with science in the development of the criminal law. I contend that Morse’s criterion presupposes
the ability to reason consciously and informally, using emotional feelings as
well as logic, and to bridge a gap that exists between reasons on the one hand
and conclusions and actions on the other.
I suggest that, on this criterion, we can be responsible because the
reasons do not compel conclusions, so that, in the exercise of the capacity
Morse refers to, we can either heed and obey the requirements of the law, or
not do so, as we choose. So
interpreted, I contend, the criterion can be sufficiently robust to support
human rights notwithstanding the claims of science that I have mentioned, and
to contribute to the development of the criminal law; but I also contend that
the criterion itself suggests a possible qualification to those claims and
implies that the question of determinism should at least be left open.
I. INTRODUCTION
One important aspect of human rights is
the principle that the state should generally not coerce, imprison or otherwise
forcibly interfere with the liberty of an adult, responsible citizen, except where
the citizen has voluntarily broken a public law that is part of a system of
laws of adequate fairness; and that where a citizen has voluntarily broken such
a law, the state may do no more than impose a punishment that is in some sense
proportionate to citizen’s wrongdoing.
With a few exceptions, it is a violation of human rights for the state
to interfere with a citizen’s liberty in any other circumstances or to any
extent not justified by the breach of the law in question.
This principle makes sense because it
is assumed that most adult persons are truly responsible for their voluntary
conduct in such a way as to make it fair that voluntary conduct in
breach of such a law may justify taking away their liberty, whereas it is not
fair that their liberty be taken away for any other reason such as that,
without their having engaged in any voluntary conduct in breach of the law,
they be considered by those in power to be a danger to their policies or to
“society.” This in turn presupposes
that persons do have the capacity to control their voluntary actions and in
particular to choose whether or not to act in breach of the law: that is, it presupposes folk-psychological
ideas about the causation of human behaviour including the idea that persons
have free will.
Such folk-psychological ideas have long
been challenged by philosophers, at least to the extent of saying that they
must be understood in a sense that makes them compatible with determinism; and
the advance of science over the last four hundred years has made it
increasingly difficult to maintain a view of human conduct as being anything
other than the outcome of the inexorable unfolding of events in accordance with
universal laws of nature. Our bodily
movements are caused by the contracting of muscles, that are caused by nerve
impulses, that in turn are caused by a vast succession of firings of neurons in
our brains; and every step in this process conforms to physical laws of
nature. Thus there may seem to be no
room for the operation of any choice between genuinely open alternatives, as
supposed in folk-psychological notions of free will.
Furthermore, the whole idea
that we are in a substantial way responsible for our own actions is strongly
challenged by an argument put most forcefully by Galen Strawson,[2]
building on two premises:
(1) We act as we do because of the way we are.
(2) We cannot be responsible (in the sense of ultimately
responsible, the buck stopping with us) for the way we act unless we are
responsible for the way we are.
Strawson argues that we cannot be responsible for the
way we are when we first make decisions in life, so we cannot be responsible
for actions based on those decisions; and so on. Thus, we can never become responsible for the way we are later in
life, or responsible for the way we act later in life.
In those circumstances, I have thought
it important to argue that the scientific and philosophical case against free
will is far from being made good, and that in fact it is more reasonable to
believe in free will than to reject it.[3] I have also contended that compatibilism,
the view that free will and responsibility are compatible with determinism, may
not be an adequate response to scientific and philosophical attacks on free
will and responsibility.[4]
In this paper I consider a recent
exposition of a compatibilist view, namely the view of Stephen J. Morse[5]
that responsibility is explained by our capacity to grasp and be guided by good
reasons, and that this is so despite the truth of determinism. I ask whether Morse’s criterion is
sufficiently robust to support human rights in an era when science is
suggesting that behaviour is just the causal product of genes and environment,
and whether it is such that it can contribute along with science to the
development of the criminal law.
II. MORSE’S THESIS
In his article Waiting for
Determinism to Happen, Stephen J. Morse, believing “that determinism or
something just like it is true,”[6]
offers an account of responsibility “that is not inconsistent with the truth of
determinism or principles of fairness that we endorse.”[7] For this account, he makes two assumptions:
(1) that human beings have “general capacities,” a
general capacity being “an underlying ability to engage in certain behavior”
(Morse gives the example that “English speakers have the general capacity to
speak English even when they are silent or speaking another language”);[8]
and
(2) that most people, when they reach “the age of
reason,” “have the full and general capacity to grasp and be guided by good
reasons.”[9]
He asserts that neither assumption is
inconsistent with determinism;[10]
and contends that the particular capacity in (2) is the primary criterion that
explains our responsibility concepts and practices.[11] He notes that this approach means that the
concept of rationality “must do a great deal of work,” but that it would be
unreasonable to expect a precise, uncontroversial definition of rationality.[12] He refers to “the implicit, common sense
notion – the ability to perceive accurately, to reason instrumentally, including
according to a minimally coherent preference ordering, and the like;” and he
suggests that this is sufficient for his purposes.[13]
Thus Morse does not elaborate on the
concept of rationality that is central to his account of responsibility, but is
content to utilise what he calls the common sense notion. I will commence by looking in more detail at
this common sense notion of rationality and what is involved in it.
III. THE COMMON SENSE NOTION OF RATIONALITY
While it is true that the common sense
notion of rationality does involve such things as the ability to perceive
accurately and reason instrumentally, it also (and crucially) involves consciousness,
and in particular the ability to make conscious decisions and exercise
conscious control over one’s actions. A
view that our decisions are made by non-conscious processes, for example by
computation-like processes, perhaps of a kind generally similar to those used
by chess-playing computers, is not, I suggest, in accordance with the common
sense notion of rationality. I am not
here saying that such a view would necessarily be wrong: many respected scientists and philosophers
argue to the general effect that our decisions and actions are in fact produced
by computation-like processes in which our consciousness has no efficacious
role, and they may be right. But my
contention is that this is not the common sense notion of rationality that
Morse refers to; and I will suggest that it is a notion of rationality that
could not plausibly support our ideas and practices concerning criminal
responsibility.
As well as involving
the ability to make conscious decisions and exercise conscious control over our
actions, the common sense notion of rationality also involves the associated
ability to make decisions and to act on the basis of inconclusive
reasons, in some cases by consciously weighing these reasons and reaching
decisions in ways that appear to go beyond the derivation of conclusions by
explicit logical or (more generally) algorithmic processes. It is of course part of human rationality to
be able to apply rules of logic, mathematics and probability, and to reach
conclusions required by these rules – although in this respect humans are slow,
clumsy and very fallible in comparison with computing machines. However, this is only a small part of human
rationality – most of our decisions and actions are the result of plausible
reasoning, and are based on inconclusive reasons; and these decisions and
actions are not required or even justified by the application of rules of
logic, mathematics or probability to accepted premises or data. It is true that for much of the time we act
without deliberation, and also that we often find reasons compelling; but this
does not contradict my assertion that reasons are (generally) inconclusive
unless and until given effect to by a decision or action.
Certainly, when we use plausible
reasoning to decide what to believe on the basis of conflicting evidence, there
appears to be an element of judgement involved that cannot be reduced to
conformity with rules of any kind; and this, I suggest, is what is needed to
explain why, despite the arguments of Hume, Popper, Hempel, Goodman and others,
some conclusions of inductive arguments are reasonable and others are not
reasonable.
It seems that the inconclusive reasons
on which we base our decisions often include emotional feeling of various
kinds, whether they be explicit motivators like hunger or pain, or more elusive
“gut feelings” of rightness or wrongness in our deliberations as to what to
believe and what to do. And on the
common sense notion of rationality, these conscious feelings motivate just
because of their impact on our conscious decisions and actions, through the way
they actually feel to us. Hume
lumped these motivational feelings together as passions or desires, and he
contended that we always act in accordance with the preponderance of our
desires. But that makes the unjustified
and I would contend untrue assumption that desires are commensurable
quantities, like forces in Newtonian physics.
There is no basis for saying that a feeling of hunger admits of a
quantitative measure of strength that could render it commensurable with a
feeling of obligation to fulfil a commitment to a friend, so that where these
reasons conflict the outcome is just a matter of one quantity exceeding another
quantity: plainly, I suggest, this is
not the case.
Thus, the reasons on the basis of which
we decide and act do not appear to include a clincher that
pre-determines the decision or action:
the only clincher seems to be the decision or action itself.[14] The same idea is expressed by philosopher
John Searle[15] when he
writes about a gap between reasons and decision or action: indeed Searle identifies three such gaps,
one between reasons and a decision what to do, another between a decision what
to do and actually commencing to do it, and a third between commencing to do
something and carrying it through to conclusion. At each stage, according to Searle, a decision or act of will is
required which is not, on its face at least, a mere automatic result
predetermined by the reasons.
Now it is clear that our decisions and
actions depend at least to a substantial extent on physical processes in our
brains, including pre-conscious processes and also processes that are either
identical with or else correlate with and/or support our conscious processes;
and as suggested before, it is possible that (consistently with determinism)
our decisions and actions are fully caused by and fully explicable
in terms of these physical processes, with no distinctive efficacious
contribution from our conscious processes.
On this view, the incommensurability and inconclusiveness of our
reasons, the associated gap between reasons and decisions, and the clinching
efficacy of our conscious processes, can only be apparent. The incommensurability of reasons
disappears, in that the physical processes that somehow support the apparently
incommensurable reasons proceed entirely in accordance with physical laws
applying to commensurable physical quantities.
Similarly, there is no inconclusiveness of reasons, and any clincher for
decisions and actions must be provided by these same processes. Our feeling of efficacious conscious
resolution of incommensurable and inconclusive reasons must then be seen as an
illusion, or at best as no more than an incomplete and misleading projection
from these inexorable processes. The
rationality and effectiveness of these physical processes must be explained,
not in terms either of conscious rationality (on this view, that could be no
explanation) or of compliance with known rules of logic or mathematics (because
this cannot explain plausible reasoning), but on the basis that the processes
have been developed through millions of years of evolution as effective
computation-like processes – being processes of which we have little
understanding, but which are well adapted to dealing with the problems of
survival and reproduction.
This is a possible view, and something
like it is popular among philosophers and neuroscientists; but it is a long way
from the common sense notion of rationality.
As noted above, it is essential to the common sense notion that our
decisions and actions are for the most part truly under our conscious control,
and that it is generally our conscious decision-making and acting that resolve
the questions that face us; and it is inconsistent with the common sense notion
that the apparent gap between reasons and decisions or actions should be
bridged, not by our conscious decision-making or conscious control of our
actions, but by computation-like processes of which we have no real awareness
or understanding and over which we have no control.
Furthermore, this view would not
accommodate Morse’s notion of grasping and being guided by good reasons, which
again presupposes conscious control.
The notion of “grasping” good reasons suggests that one must appreciate
and understand the reasons and be able consciously to take them into account in
making decisions as to what to do. This
is reinforced by the reference to being guided by the reasons: the notion of “being guided” suggests
conscious adaptation of conduct to some indication of what is to be done, not
the determination of conduct without efficacious input from conscious processes.
IV. RATIONALITY AND RESPONSIBILITY
I will not here be disputing that the
ability to grasp and be guided by good reasons, when equated with the common
sense notion of rationality outlined above, can be accepted as the primary
criterion supporting our responsibility concepts and practices. What I do suggest is that this is just
because it involves the idea of ability to make and carry out conscious
decisions and actions, and in doing so to provide the clincher that bridges the
gap between the inconclusive reasons on the one hand and the decision or action
on the other hand. We can readily
accept that a person is responsible for conduct where the person has the
capacity to grasp and be guided by good reasons; but I say this is because that
capacity involves the ability to take account of those reasons consciously in
deciding whether or not engage in the conduct and in acting or not acting in
accordance with that decision.
I will expand on this by considering in
turn some of the features of the common sense notion of rationality that are
relevant to and tend to support our responsibility ideas and practices.
First and foremost, as I have said,
there is consciousness. We take it for
granted that consciousness is a necessary condition for both rationality and
responsibility in human beings. The
presence of consciousness during conduct is prima facie evidence of
responsibility for that conduct, while its absence is indicative of lack of
responsibility. For example, if someone
causes injury by crashing a car after falling asleep at the wheel, that
person’s responsibility must be found in making the conscious decision to drive
in circumstances where the person should have been aware of a risk that this
might happen, or in failing to respond to indications sufficient to make the
person aware that sleep was imminent.
Strict criminal liability might be imposed because of the grave
consequences that this can cause and the difficulty of proving responsibility;
but if so, this would be as an exception to the general rule that
responsibility is a necessary condition for criminal liability. Similarly, the knowledge required for
criminal liability for assisting someone else in the commission of a crime is
knowledge, concerning the commission or intended commission of the crime, that
has actually come to the conscious awareness of the person. It is insufficient that a person has the
means to such knowledge and the capacity to acquire that knowledge given those
means, for example from a letter or email message which has not been read, or
even which has been read but not consciously understood.
Second, there is the grasping of
reasons, including emotional feelings.
Normal adults have the ability to grasp all kinds of reasons relevant to
their decisions and actions, including reasons relevant to their own short-term
and long-term interests and reasons relevant to the short-term and long-term
interests of other persons. These
reasons include feelings like pain or hunger, and “somatic markers”[16]
associated with various alternative possibilities. The grasping of these reasons requires consciousness of them
(although of course I do not suggest that we are conscious of all our
reasons and motivation) and in some cases also a measure of understanding
of them. Understanding of reasons
involves not merely knowledge of the reasons themselves, but also extensive
knowledge about them, and the ability to generate further knowledge
about them as required in various contexts and for various purposes.[17] This seems relevant to responsibility
because it seems to be part of what is required for the flexibility of
response that we associate with responsibility. Reasons don’t appear to operate automatically, but appear to be
taken into account in different ways in varieties of circumstances. Less understanding of reasons and less
flexibility in response is taken as suggesting less responsibility for
conduct. Thus, lack of understanding of
reasons for conduct is seen as negating responsibility for conduct for persons
of tender years (under ten in Australian law) and as putting responsibility in
question for those who are just a little older (between ten and fourteen in
Australian law).
Third, there is the gap between reasons
and decisions or actions. Except
possibly where all reasons point one way, or where what is being considered is
capable of being resolved by application to accepted data of laws of logic or
mathematics or probability, reasons are fundamentally inconclusive: no matter how fully they are expressed or
elaborated, they do not unequivocally require one decision or action. And this is so even when we act without
deliberation, and even when reasons seem compelling. Common sense rationality involves identifying and grasping
reasons; but crucially it also involves weighing reasons, reasons that
do not come with predetermined weights, and arriving at a conclusion that the
reasons have not and could not have dictated.
We consider that we are responsible for our decisions and actions precisely
because they are seen as being not pre-determined by the reasons but as
being the result of our determining which reasons should prevail. We consider that it is we, not the reasons
as such, that provide the clincher, and thus that it is we who are responsible.
Finally, it is to be noted that all
three previous aspects are implicit in Morse’s formulation that we are guided
by good reasons. As mentioned earlier,
to be guided is to adapt one’s conduct to some indication of what is to be
done, thereby suggesting consciousness.
In order to be guided by reasons, one has to be aware of them and to
understand just what they are indicating in a wide variety of contexts; and one
has to determine for oneself precisely what one’s conduct is to be in the light
of those reasons.
It is these factors, namely
consciousness, understanding of reasons and determining for oneself what to do,
that are at the heart of our responsibility concepts; and they are what makes
it possible to say fairly and accurately that we can either heed and obey the
requirements of the law, or not do so, as we choose. A person who does something and is conscious, understands
relevant reasons, and has determined for himself or herself what to do, is
readily accepted as being responsible for that conduct. It is true, as Morse suggests, that we might
accept this without being concerned as to whether determinism is true or
false. What I will be suggesting,
however, is that wholehearted acceptance of determinism would tend to bring
into question the relevance and efficacy of these crucial elements of common
sense rationality and in that way tend to undermine our responsibility ideas
and practices.
V. RATIONALITY AND DETERMINISM
I previously outlined a notion of
rationality consistent with determinism.
What I will do now is to consider further how acceptance of determinism
relates to the elements of common sense rationality just discussed and thus to
our responsibility ideas and practices.
I take determinism to imply that, given any state of the world, the
physical laws of nature will constrain a single line of development from it,
and that the physical world is closed to any non-physical influence. This means that there is great difficulty in
giving a deterministic account of consciousness, in particular in that any
causal efficacy of consciousness has somehow to operate within this framework.
If the physical world is closed to any
non-physical influence, then any causal efficacy of conscious processes must be
entirely through their associated physical processes. One approach then is to say conscious processes as such have no
causal efficacy.[18] Otherwise, the causal efficacy of
consciousness has to be the causal efficacy of the associated physical
processes, with consciousness being treated either as no more than a level of
description of those same processes[19]
or as a “user-friendly” account of brain processes produced by our brains so as
to assist in monitoring them and communicating them to others.[20] The former approach offers no explanation of
what it is about conscious processes that distinguishes them from the vast
amount of non-conscious information-processing that our brains perform (or
indeed that computers perform); while the latter equates conscious experiences
to convenient fictions, that would equally be “felt” by computers programmed to
work with similar “user-friendly” accounts yet would not be felt by any
non-human animals that do not monitor or communicate their mental processes.
One or other of these approaches may be
correct; but they are very much at odds with the common sense view of
rationality and responsibility as depending on consciousness. And experiments that assume a deterministic
framework tend further to undermine this common sense view, by suggesting that
all effectual information-processing and decision-making are in fact performed
by unconscious processes and that conscious will is no more than an illusion.[21]
The difficulty deterministic views have
in accounting for consciousness means that they have the same difficulty in
relation to our grasping of reasons, particularly in so far as reasons depend
upon conscious feelings like pain or hunger.
Additionally, determinism seems inconsistent with any satisfying account
of what it is to understand reasons.
Penrose[22] has argued
convincingly that computers as presently conceived, no matter how powerful, do
not understand anything but just blindly carry out algorithms. Of course, the view that understanding is
something more than the processing of information in accordance with
computational algorithms may itself be no more than an appearance or illusion
produced by evolution-selected algorithmic processes that underlie our
conscious processes; but again, if this is so, it is contrary to our common
sense notion of rationality.
Next, as suggested earlier, determinism
seems inconsistent with the gap between reasons and decisions or actions. Algorithmic processes simply proceed to
their conclusion: they involve no
inconclusive reasons and no gap between reasons and conclusion. Determinists can say that consciousness gives
only partial access to the processes that determine decisions and actions,
discloses only part of the reasons or other causes of our actions, and thereby
gives the misleading impression that reasons are inconclusive; and determinists
may be right about this. However, one
wonders what could be the evolutionary advantage that selected in favour of
such partial and misleading access; and in any event, this further illustrates
the gulf between deterministic and common sense notions of rationality.
So, I say that deterministic accounts
of rationality are very different from the common sense notion of being guided
by good reasons. According to
deterministic accounts, consciousness has no distinctive efficacious contribution
to make, or perhaps is efficacious merely as a user-friendly summary for
monitoring and communication. Reasons
are not grasped, at best they function as elements in automatic
algorithms. There are no such things as
operative yet inconclusive reasons, or gaps between reasons and decision or
action. And the feeling we have, that
we are consciously adapting our conduct to indications given by reasons that
are grasped and understood and consciously resolved, is mere illusion.
This is not to say that determinism
cannot stand with any account of responsibility. Indeed, many supporters of determinism, following Hume, argue
that determinism is necessary for responsibility, in order that actions
can be considered as arising out of a person’s character, rather than as
originating capriciously out of nowhere.[23] It has also been said that belief in
determinism cannot in fact affect our responsibility ideas and practices: we just cannot help accepting them and
giving effect to them.[24] And it has been pointed out that in any
event, the law’s concern with responsibility and voluntary conduct is fully
supported by a combination of determinism and utilitarianism: since it is voluntary conduct that is most
affected by threatening and applying punishment, it is reasonable that
punishment should for the most part be limited to voluntary conduct, and this
in turn explains our responsibility ideas and practices.[25]
What all this leaves out is any kind of
explanation or justification either of our common sense notion of rationality,
or of why it can be fair (as opposed to merely expedient) that we
hold persons responsible and punish them for voluntary conduct in breach of the
law, whereas it is unfair and unacceptable that, in the absence of such
conduct, they be punished or otherwise interfered with because those in power
believe them to constitute a threat to their policies. The common sense approach to responsibility
depends heavily upon the conscious grasping and understanding of reasons, the
existence of a real gap between reasons and decisions or actions, and the
ability to bridge that gap by conscious decision-making and conscious control
of our actions – features that play no part in deterministic accounts of
rationality.
Furthermore, if it be the case that all
our conduct is the unique pre-determined outcome of evolution-selected
algorithmic computational processes, there is no reasonable answer to Galen
Strawson’s dilemma – suggesting that we cannot be truly responsible for the way
we are or the way we act, and thus suggesting that singling out persons for
punishment by reference to how they have acted cannot be justified on the basis
that it is fair to do so. On the other
hand, the common sense notion of rationality as capacity to be guided by good
reasons, if unaffected by any assumption of determinism, can provide an answer
to Strawson’s dilemma. It can accept
that there is a sense in which it is true to say that we act as we do because
of the way we are, but can still leave it open that we may have some ultimate
responsibility for the way we act even if we are not responsible for the way we
are. One aspect of the way we are is
that we have the capacity to be guided by good reasons, that is, to decide
which reasons should prevail and to adapt our conduct to whatever those reasons
indicate; and while “the way we are” may determine, indeed predetermine, what
those reasons are and how they appeal to us, it is by no means clear that it
predetermines how we exercise this capacity.
Accordingly, unless we assume determinism, we may to some extent be
responsible for the way we act even if we are not responsible for the way we
are.[26] And this in turn opens the way to some
responsibility for the way we are, as this comes to be affected by the way we
act.
VI. RESPONSIBILITY AND SELECTION OF PUNISHMENT
Furthermore, unless the exercise of the
capacity to be guided by good reasons is considered as at least potentially having
some independence from genetic and environmental factors, advances in
neuroscience and the cognitive sciences can be expected to put increasing
pressure on our responsibility ideas and practices. We are already seeing claims that all decisions are effectually
made by unconscious processes, that is, processes of which we are not aware and
over which we have no control;[27]
and it can be expected that these claims will continue and become more
insistent.
The law should be informed by advances
in science, and certainly it is to be hoped that science will assist in the
identification and amelioration of factors that contribute to anti-social and
criminal behaviour. It is also to be
hoped that science will assist in the improvement of strategies to promote the
reform and rehabilitation of offenders.
However, I contend that it would be unfortunate if crime came to be seen
generally as a disease (or genetic and/or environmental artefact) to be treated[28]
rather than as wrongdoing that fairly justifies the imposition of coercive
measures in some sense proportionate to the guilt of the wrongdoer. My reason for saying this is as indicated at
the start of this paper, namely that to regard crime as a disease (or artefact)
would be damaging to the principle of human rights which says that the state
must not, other in exceptional circumstances, coerce any of its citizens except
to the extent that such coercion is fairly justified by voluntary conduct in
breach of a public law that is part of a system of adequate fairness.
Some suggest that this problem be dealt
with by maintaining free will as a convenient fiction,[29]
while Michael Moore[30]
maintains that retribution can be seen as a positive good notwithstanding the
truth of determinism. My suggestion
here is that we can adopt Morse’s formulation as one that might command wide
acceptance, while not requiring commitment to a final view on whether or not
determinism is true. Then, so long as
the capacity to be guided by good reasons is understood in the common sense way
I have discussed and thus is regarded as something over which we have conscious
control, our responsibility ideas and practices can be maintained, and advances
in science can be used to aid the law’s approach to crime without endangering
human rights.
VII. CONCLUSION
I suggest that persons concerned to
maintain the principle of human rights mentioned at the beginning of this paper
should, along with Morse, accept at least provisionally that human beings do
have the capacity to grasp and be guided by good reasons, interpreting this
consistently with the common sense notion of rationality I have discussed. I also suggest that they should not
jeopardise this common sense notion, and the support it gives to our
responsibility ideas and practices, by wholeheartedly embracing determinism –
because while I do not claim that my arguments show beyond question that the
common sense notion is inconsistent with determinism, I do claim that they do
show at least that this may well be so.
My own personal view is that determinism is probably false, and that something like an indeterministic incompatibilist view of free will is probably true; and I have supported that view in various writings. However, my purpose in this paper is not to argue for that view, but rather to suggest that we should not prematurely assume that determinism is true. The difficulty of giving a satisfactory deterministic account of consciousness and plausible reasoning is I suggest sufficient reason to be at least agnostic about the truth of determinism; and if one does not assume the truth of determinism, one then has, in Morse’s criterion, a satisfactory basis for our responsibility ideas and practices. However, that basis is jeopardised if one does, prematurely, assume the truth of determinism.
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2. Galen Strawson, The Bounds of Freedom, in OXFORD HANDBOOK OF FREE WILL 441 (Robert Kane ed. 2002).
3. For example, in David Hodgson, Hume’s
Mistake, in THE VOLITIONAL BRAIN 201 (Benjamin Libet, Anthony
Freeman and Keith Sutherland eds. 1999), and Three Tricks of Consciousness,
9 JOURNAL OF CONSCIOUSNESS STUDIES 65 (2002).
4. For example, in David
Hodgson, Guilty Mind or Guilty Brain: Criminal Responsibility in the Age of
Neuroscience, 74 THE AUSTRALIAN LAW JOURNAL 661 (2000).
5. I wrote this article in
response to the article Stephen J. Morse, Waiting for Determinism to Happen
(1999), at http://www.legalessays.com/morse.pdf. This website may no longer be
accessible: however, a similar argument
can be found in Stephen J. Morse, Rationality and Responsibility, 74
SOUTHERN CALIFORNIA LAW REVIEW 251 (2000).
A copy of the former article can be requested from this journal, or from
me at raeda@ozemail.com.au.
17. I need not enter here on the question of what count as good reasons, in particular of whether there is some requirement of objective validity: this does not affect my argument.
23. R. E. Hobart, Free Will as Involving Determinism and Inconceivable Without It, 43 MIND 1 (1934).