Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » December 2004 » This doesn't surprise me.... (or, let's get philosophical for a moment...)

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12/31/2004: This doesn't surprise me.... (or, let's get philosophical for a moment...)

Over at Brian Leiter's blog, legendary Federal appeals judge (and University of Chicago law professor) Richard Posner (yes, that Posner--the God of Law and Economics *grin*) is currently on the downhill side of a week of guest blogging. In the process, he weighs in on the issue of free will (a rather important factor in certain areas of the law, like the criminal law) while responding to a reader query:

One of yesterday's comments asked me whether I believed in free will. I think of free will as being epiphenomenal. When we engage in deliberation, we are examining the pros and cons of alternative courses of action. When we complete our deliberation, either the pros or the cons will be weightier, and we go with the weightier side of the balance.

This is not to deny that people are morally and legally responsible for their deliberate actions. But I take the function of the concept of "responsibility" to be to add a thumb to the balance described in the previous paragraph. The question for the law is not whether a defendant's crime was the product of an exercise of free will, but whether attaching a penalty to the kind of conduct in which he engaged is likely to reduce the incidence of that conduct by making it more costly. If so, we say that his decision to engage in the conduct was culpable, was "his fault." We say he "could have chosen" not to engage in the conduct. But probably, if we knew everything about his psychology, we would realize that his choice was foreordained. What we mean when we say that he "had a choice" is that the penalty would have deterred most people from engaging in such behavior.

As Willard Quine put it, a choice is "free" if the individual's "motives and drives" are part of the causal chain that produces the "chosen" act, even if those motives and drives are themselves rigidly determined, perhaps as a result of a heavy threat of punishment or a powerful financial incentive. If the individual because of youth, insanity, or retardation is incapable of deliberation, his behavior is excused or his responsibility mitigated.

The upshot is that ascriptions of responsibility are based on social need (for example to deter crime) rather than on metaphysics, philosophy of mind, theology, or moral philosophy.
It looks here to me like Posner is advocating a form of compatibilism, which is an interesting way station that some philosophers have arrived at in their efforts to harmonize the perception that people have that they possess free will and the apparent conclusion compelled by science that all actions are determined:
Do we have free will? It depends what you mean by the word 'free'. More than two hundred senses of the word have been distinguished; the history of the discussion of free will is rich and remarkable. David Hume called the problem of free will 'the most contentious question of metaphysics, the most contentious science' (1748: 95 ).

According to
compatibilists, we do have free will. They propound a sense of the word 'free' according to which free will is compatible with determinism, even though determinism is the view that the history of the universe is fixed in such a way that nothing can happen otherwise than it does because everything that happens is necessitated by what has already gone before (see Determinism And indeterminism ).

Suppose tomorrow is a national holiday. You are considering what to do. You can climb a mountain or read Lao Tse. You can mend your bicycle or go to the zoo. At this moment you are reading the
Routledge Encyclopedia of Philosophy. You are free to go on reading or stop now. You have started on this sentence, but you don't have to... finish it.

In this situation, as so often in life, you have a number of options. Nothing forces your hand. It seems natural to say that you are
entirely free to choose what to do. And, given that nothing hinders you, it seems natural to say that you act entirely freely when you actually do (or try to do) what you have decided to do.

Compatibilists claim that this is the right thing to say. They believe that to have free will, to be a free agent, to be free in choice and action, is simply to be free from
constraints of certain sorts. Freedom is a matter of not being physically or psychologically forced or compelled to do what one does. Your character, personality, preferences, and general motivational set may be entirely determined by events for which you are in no way responsible (by your genetic inheritance, upbringing, subsequent experience, and so on). But you do not have to be in control of any of these things in order to have compatibilist freedom. They do not constrain or compel you, because compatibilist freedom is just a matter of being able to choose and act in the way one prefers or thinks best given how one is. As its name declares, it is compatible with determinism. It is compatible with determinism even though it follows from determinism that every aspect of your character, and everything you will ever do, was already inevitable before you were born.
As I say in the header, this doesn't surprise me. Like many intelligent persons (and keep in mind that Posner is basically a economist of the law I've got a feeling that economists, worshipping as they do at the altar of "the rational man" are more wedded to a deterministic view of reality than other social sciences) Posner sees how compelling the arguments for determinism are, yet as a judge and lawyer he is (for obvious reasons) committed to some notion of free will (because it is a basic notion in the law that criminal punishment or the imposition of civil liability doesn't make a whole lot of sense if human behavior is strictly determined). So for Posner, the necessities of the law require some harmonization of determinism and free will, and compatibilism isn't a bad compromise under the situation.

Len on 12.31.04 @ 11:33 PM CST

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