Criminal Justice in a World Without Free Will

By James Flynn

Brown Political Review

Scientific advancement has often upended long-cherished human beliefs. In the 17th century, the discovery that the Earth was not in fact at the center of the universe was not just difficult to fathom, it was considered a dehumanizing blow to humanity’s ego. Eventually, however, we come to embrace the new scientific knowledge – it is, for instance, now a trite fact that the Earth orbits the Sun – and we then shape our institutions accordingly. Today’s ego-shattering discovery is not cosmological, but as close to home as ever: neuroscience is increasingly reshaping the understanding of our own brains.

Advances in neuroscience have seriously put into question the notion of free will. The intuition that our conscious selves are the authors of our thoughts and of our actions, and that conscious and willful choices inform our behavior, may be more tenuous than we believe. Certain leading scientists now call this willful agency a mere illusion; they instead attribute the totality of human behavior to unconscious chemical processes. This implication – that free will may be an illusion – unsettles the notion of moral responsibility. The emerging field of Neurolaw, championed by renowned Stanford neuroscientist David Eagleman, attempts to address the judicial implications of these advances in modern neuroscience. Our system of criminal justice, he argues, ought to no longer assume the notion of free will. Instead of sentencing on the basis of culpability, it must sentence with view to risk-assessment, to the probability of recidivism, and to rehabilitation.

The emerging picture of the brain attributes decision-making to a variety of factors such as genes, environment – both in utero and during childhood – and even immediate, undetectable chemical stimuli. The brain seems to be nothing more than an innumerable series of intricate chemical reactions; nowhere in it is there a unifying “self” that directs its actions. Conscious awareness receives few or none of the factors contributing to behavior. Moreover, even consciousness itself seems not to consist of any sort of single executive entity that can be aptly labeled the “self.” In the 1980s, the psychologist Benjamin Libet famously illustrated the illusion of conscious will when he showed that a subject’s brain had decided on a particular action milliseconds before he consciously “chose” to perform that action. These findings lend credence to determinism – the philosophical position that only causal factors in accordance with physical laws determine every event, with no possible alternatives – leaving no room for human agency. Their interpretation is, of course, still controversial – the philosopher Daniel Dennett, for instance, considers free will compatible with a deterministic worldview. But even without a scientific consensus, the case against free will is strong enough, and its implications drastic enough, that it must be taken seriously.

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Picture: No machine-readable author provided. Owly K assumed (based on copyright claims). [GFDL (, CC-BY-SA-3.0 ( or CC BY-SA 2.5-2.0-1.0 (, via Wikimedia Commons

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