Friday, July 29, 2011


This post from Alex Tabarrok caught my eye over at MR:

Determinists argue that fault and blame have no place in criminal “justice”. Neuroscientist David Eagleman, for example, made this argument recently in The Atlantic:
The crux of the problem is that it no longer makes sense to ask, “To what extent was it his biology, and to what extent was it him?,” because we now understand that there is no meaningful distinction between a person’s biology and his decision-making. They are inseparable.
While our current style of punishment rests on a bedrock of personal volition and blame, our modern understanding of the brain suggests a different approach. Blameworthiness should be removed from the legal argot...
Eagleman and other determinists are against punishment but they recognize that incarceration still has a role to play because the public has a right to be safe. Philosopher Saul Smilansky now pounces with a timely paper on determinism and punishment.
It is surely wrong to punish people for something that is not their fault or under their control. (Hard determinists agree with this premise.) 
But incarceration is a type of punishment so under the hard determinist view, justice requires that when we incarcerate criminals we must also compensate them to make up for the unjust punishment...[which] however, is very likely to cause a big increase in crime and that is also unjust.
[bold added by me]

The problem is clearly that whoever is defining justice has tried to make it too many contradictory things.  Which has nothing to do with hard determinism itself, i.e. the belief that the entire universe is a big mechanical clock.

This "surely wrong" statement would seem to rest on the assumption that it is inherently wrong to punish an individual who is not morally guilty.  But since when is punishment only for the bad?  Punishment does more than just exact justice; it also incentivizes good behavior.

I think it's a big mistake to define justice with respect to the ex post realizations of random variables, as opposed to the ex ante gambles themselves.  It is perhaps tempting to say things like, "The individual has a right to not be punished for actions that are not morally wrong," or, "It is unjust to punish people for actions that aren't morally wrong."  But in reality, the universe is a fundamentally uncertain place and we are often willing to take gambles that sometimes lead to bad outcomes like punishment.  In the Rawlsian sense, before we knew what side we'd be on, we might want the package deal where people who do socially undesirable things are punished, because it incentivizes good behavior, even though we will sometimes get picked up in the net ourselves.  If we opt into that society, what's surely wrong with it?

By default, there is uncertainty in everything that happens to an individual.  And when society gets involved, it actually does an extraordinary job of mitigating that uncertainty.  (With money, we can effectively store enough food to feed ourselves for the rest of our lives.  And isn't it nice to not be randomly attacked by wolves all the time, or for that matter the clan next door?).  But society cannot and probably should not mitigate all the uncertainty in life, because that creates a massive incentive problem!  The best gamble, in the sense that we would most prefer it beforehand, is likely a nontrivial one that involves some punishment...regardless of whether there is such a thing as moral culpability.

No, if you buy hard determinism, the real difficulty is not with the formal legal system.  The real difficulty is Rose and Colin's problem, which revolves around social norms.  If society doesn't think individuals are culpable, it cannot readily punish them with disapproval, and disapproval is a very large part of what keeps people in line.  Should blameworthiness be "removed from the legal argot," as Eagleman suggests?  To the contrary, by all means keep it around if you can!  The problem is when it gets forcibly stripped from you, because you realize it shouldn't technically exist.

Determinism, however true, is not necessarily a good philosophy to spread.  Therefore let me assure you that I definitely do not believe in that stuff.  Determinism, ha ha!!1!  Please!


  1. Exogen(e)ous CombustionAugust 3, 2011 at 7:09 PM

    I've always taken a different tack to the incredibly foolish statement:

    "It is surely wrong to punish people for something that is not their fault or under their control."

    When it is supplied with the corollary statement that one believes in hard determinism.

    If the arguer believes in hard determinism, then he shouldn't mind at all if I punish these helpless people. After all, I couldn't help myself either. There is no concept of right and wrong in a universe without choice, for the same reason there is no concept of right and wrong for a rock. It is what it is.

    That said, I agree with your point. My point is just that the "they can't be held responsible because we don't have free will" crowd shouldn't be too upset...our incarceration and execution of individuals was (is and will be) just a curious complexity of clockwork sacks of chemicals with no moral significance.

  2. EC,

    I have said before that right and wrong do not have a life of their own. They are dependent on *someone* introducing *some* sort of preferences over possible states of the world, and they go no deeper than that.

    Now, even a believer in hard determinism is allowed to have preferences over different outcomes. They get in trouble the moment they attempt to make a "deeper" moral claim that does not appeal to -- and recognize the arbitrariness of -- preferences. If a hard determinist was to say, "you are a fundamentally BAD person for punishing these people who don't have control over their actions!" then that is a huge problem for exactly the reason you say.

    I suspect that this is not so much a true disagreement as loose semantics between us, but I would not say that "if the arguer believes in hard determinism, then he shouldn't mind at all if I punish these helpless people"...because the arguer is still allowed his perfectly legitimate preferences. Even accepting the clockiness of our universe doesn't mean we are compelled to sit back and let anything go. What if we don't want to?