JAN 27

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3: JAN 27


  • RQ1: Reading Quiz #1
  • Sapolsky, Robert. Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will (580-613)
  • Henrich, Joseph, "Hell, Free Will, and Moral Universalism" from The WEIRDEST People on Earth p. 146-148, (2)

Reading Quiz

  • Please take this quiz. You may take your time with the questions, but you are meant to work from memory for this quiz. Do not try to look things up or "speed read" to find answers. This will delay the class, reduce the fairness of the grading, and, of course, deny you the information the quiz is intended to provide.
  • Link:

Sapolsky, Chapter 16: Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will

Tear ducts and guilty animals

  • Discusses professional interaction between biologists and legal scholars that may have started “neurolaw”.
  • Radical claim: Current criminal justice system needs to be replaced. (Not talking about policing, right?)
  • Things outside his focus: science in courtroom, min IQ for death sentence, cognitive bias in jurors, cognitive privacy.
  • 583: historic example of scientific evidence disrupting criteria for guilt in witches trials, mid-16th century. Older women might not be able to cry.

Three Perspectives

  • Takes a middle position between believing we are always free and never free.
  • no one now disputes that we sometimes are not free (epilepsy example). Yet medieval europe tried animals for guilt. (Sounds weirder than it is. Just imagine it's about the act, not criminal intent.)

Drawing Lines in the Sand 586

  • endorses a broad compatibilism and the idea of “moral failure”. He develops the competing concept, “Mitigated free will,” read at 587-588.
  • Ultimately, Sapolsky will try to show that this view doesn’t hold up, in part because it depends up arbitrary use of a “homonculus” to explain things. But he's still a compatibilist on free will.
  • 1842: M’Naghten. Rule at 587. Mentally ill murderer. Many objected to his not being found guilty. John Hinckley.
  • "mitigated free will" homonculus view: we all more or less think this way and then the problem of responsibility comes down to figuring out what to expect from the humonculus. What is it capable of or should have been capable of.

Age, Maturity of Groups, Maturity of Individuals

  • 2005 case Roper v. Simmons. Age limit of 18 on executions and life terms. Follow debates on this. 590. Note, in particular, O'Connor and Scalia's dissenting argument. (Note also, that the need to draw these lines at all follows from the commitment to "mitigated free will".)
  • 2010 and 2012 cases on rehab for juvies. age related bounds on free will (in the justice system).
  • ”grossly impaired rationality”. Neurolaw critic Stephen Morse concedes that destruction of deliberative centers in frontal cortex defeats MR. Especially relevant to the high correlation bt violent offenders and physical child abuse. (Horrible.)
  • Gazzaniga’s view: responsibility compatible with lack of free will. Responsibility is a social level concern. Time course of decision making. (Sapolsky has trouble with this, but it's really the first interpretation and that's just "illusionism" for philosophers of MR.)
  • disputes about the maturity of adolescents: APA has spoken both ways in court: not mature enough for criminal resp., but mature enough to make an abortion decision. But Sapolsky cites Steinberg: aborition decisions and decisions to shoot occur on different time scales.
  • Causation and Compulsion -- not everything that causes us to act is a compulsion, but for some, it is.
  • works through example of schizophrenic hearing voices. Not all cases would be compulsion. "If your friend suggests that you mug someone, the law expects you to resist, even if it's an imaginary friend in your head." “thus in this view even a sensible homunculus can lose it and agree to virtually anything, just to get the hellhounds and trombones to stop.” 593
  • Starting a behavior vs. halting it. ("free won't")
  • Libet experiment, 1980s, EEG disclosure of “readiness potential” — activity measured before conscious awareness of will. .5 second delay might just be artifact of experiment design. Time it takes to interpret the clock. Libet says maybe the lag time is the time you have to veto the action your body is preparing you for (“free won’t”)
  • Sapolsky’s view is that these debates reflect a consensus about the interaction of biology and free will, whatever that is.
  • ”You must be smart” vs. “You must have worked so hard” - research of Carol Dweck, 90s, saying that a kid worked hard to get a result increases motivation.
  • 596: we tend to assign aptitude to biology and effort and resisting impulse to free will. Sapolsky seems very skeptical that we can justify assigning character (impulse control anyway) to non-biological factors (fairy dust). "Of all the stances of mitigated free will, the one that assigns aptitude to biology and effort to free will, or impulse to biology and resisting it to free will, is the most permeating and destructive." 598.
  • some evidence that pedophilia is not freely chosen or easily resisted.
  • chart showing how we divide things between biology and “homoncular grit”. — Long list of ways out biology influence the items on the right.
  • Conclusions: “worked hard/must be smart” are equally grounded in our physical nature.

But does anything useful actually come of this?

  • Grounds for skepticism about using neuroscience in the courtroom: Stephen Morse. Neurolaw sceptic, ok with M’naugton rule and diminished capacity, but thinks cases are rare. Reviews valid criticisms he makes: 1. Juries might overvalue neuroscience images, 2. Descriptive vs. Normative.
  • Morse supports a strong distinction between causation and compulsion. Causation is not itself an excuse. But Sapolsky argues that this still involves walling off a “homonculus” and that’s not plausible.
  • Acknowledges an apparent problem. Neuroscience typically can’t predict individual behavior very much. Fictional exchange with prosecutor. 600
  • Explaining lots and Predicting Little
  • But is the lack of predictive power a problem in the argument? S. works through some cases in which probability of prediction decreases, but it's still biology. Claim: it's not biology vs. non-biology, but qualitatively different aspects of our biology. 601
  • 602: Important methodological point: There's no less biology in the leg fracture vs. the other disorders, but level of biological explanation is different. Leg fractures are less connected to culture. Behavior is multifactorial and heavily cultural. (Oh god, another Henrich digression. Free will has a history.) Example: how much does biology predict depression? Factors are diverse biological mechanisms, including cultural factors. (But, point is, someone can be disable by depression, just like the leg fracture.)
  • Marvin Minsky, “Free will: internal forces I do not understand”. Sapolsky adds “yet”.
  • Neat charts showing historic trend to connect social behavior and biology in research journals. 604-605.

How They will know us (A view from history given the trends.)

  • If you still believe in mitigated free will:
  • case of Dramer and Springer and the spiritual explanation for epilepsy. Biblical version with Jesus.
  • Sapolsky imagines an Inquisitor (witch burner). Must be puzzled occasionally by fact pattern. Mom has epilepsy.
  • growth of knowledge argument 607-608. read list. Most likely option is that our kids will look at us as idiots about moral responsibility and culpability.
  • 608: practical outcomes. Not about letting violent criminals free. On the biological view, punishment can’t be an end in itself (restoring balance). Retributive punishment is an end in itself.
  • mentions Josh Greene and Cohen's article on Neuroscience and the law (In your links.) Specifically (with respect, Sapolsky misses this one), the make the point that neuroscience might not change the law so much as change our intuitions about how to view people who screw up.)
  • Culpability judgements vs. Punishment judgements: Brain imaging suggests culpability judgements activate the cool and cognitive dlPFC, but punishment judements activate more emotional vmPFC. “A frothy limbic state”. Makes sense that punishment is costly. But we need to overcome our attachment to punishment. It is involved in a lot of unjustified suffering. "Punishment that feels just feels good." (Recount Milan incident 2018.)
  • Recaps the transition we've made with epilepsy 610. Very nice point on 611 about the likely moral seriousness of 15th prosecutors of epilepsy.
  • Car free will. A kind of reductio argument. Car free will means "forces I don't understand yet."

Postscript on reassessing praise

  • (always the undertreated topic in this field). Complimenting someone's cheekbones or their ability to detect ripe fruit. Both are biologically dialed in, but we understand the latter less well.

Henrich, Joseph, "Hell, Free Will, and Moral Universalism"

  • This excerpt from The WEIRDEST People in the World comes in the context of a section on "universal moralizing gods" which characterize the major world religions (though Buddhism requires some discussion). H's theory is that this cultural innovation in religions allows societies to grow, solving the problems associated with living with so many strangers, something our evolved psychology did not really prepare us for.
  • The three innovations of moralizing religions are:
  • contingent afterlife:
  • free will: encouraged follower to believe they could comply with moral code by acts of choice and will.
  • moral universalism:
  • The rest of the excerpt goes into evidence of the effects of each feature on social life. The research related to free will is at top of p. 148.
  • What consequences, if any, does this research have for our thinking about the modern problems of free will and moral responsibility?
  • Maybe -- Cultural variants on ways of thinking about agency make real differences in social morality...
  • Maybe -- Free will has its origins in psychological adaptations that allow us to live in large societies.
  • Maybe -- The philosopher's concern with the metaphysical problem of free will is hard to reconcile with the cultural utility of a belief in free will. (A foothold for "illusionism"?)
  • Maybe -- We have more reason now to separate what we tell our kids (You can do it if you try. Don't let other people control your decisions. What do you want to do with your life?) from what we know (?) about the ways that agency can be compromised or broken. The first way of talking seems justified even if the reality is that our failures are often the result of forces we have marginal control over.
  • Does this research tell us that punishment (and one modelled on hell?) is atavistic or useful in shaping our thinking and policy?
  • Do these lines of thought strengthen or weaken (or leave unchanged) our commitment to moral responsibility as justifying retribution?