the philosophy of law is running up hard against the stark findings of neuroscience and psychology, and is reacting mostly by misunderstanding or willfully ignoring them. the heart of the problem has to do with mens rea, in particular the troubling underlying concepts of criminal intent and culpability. in the highly simplified way i understand it, a crime is intentional if in the perpetrator's mind there is foresight and desire -- the 'i' that is the criminal 'wants' the outcome of his committed crime.

brain studies have come along and rocked the boat. in our seminar today, the guest speaker spoke of his research on psychopaths, and the various difference in brain structure (callosal, ventricular) and function (frontal hypoactivation) that his group has found in those diagnosed with antisocial personality disorder. there have, in fact, been several court cases to date where such evidence has been brought to bear. of those cases, there have been a few where criminals have been saved from the death penalty because of it.

on first brush, this idea seems intuitively correct. if a bit in someone's brain has gone wrong, if he is in some way "broken", it can't be right to punish him, because it's not his fault. in the words of the criminal at his defense: if 'i' don't have a say in the matter, 'i' can't possibly be evil. slightly closer scrutiny will reveal, however, that we've already arrived at a problem: is the 'i' in this paragraph the same as the 'i' in the first? does the psychopath have only one 'i' that is dysfunctional, or an underlying 'i', a center of volition that is simply overwhelmed by its powerful but damaged companion?

lawyers and judges are still at the stage of shrugging their shoulders over these 'interesting' philosophical conundrums, but in my opinion, the worst is yet to come, because the same logic that applies to psychopathy applies to pretty much everything. although people fight mightily against it, the fact of the matter is that all behavior comes from the brain -- the environment changes the brain which changes its environment and so forth. if you take a spear and stick it through someone's frontal lobe (without killing him), chances are that after recovering he's going to become a permanent fixture at the craps table, or a serial killer. and from that extreme example on down, everything works that way -- forces large and minute build and destroy synapses -- those connections and networks determine how we behave, and so forth. thus, all crime from shoplifting to genocide is biologically determined, and the justice system has a problem.

the accumulating body of evidence from neuroscience is all pointing to one thing -- we don't have volition as we currently understand it. it's still conceivable that some weak form of free will exists, but it's looking ever more doubtful. in all probability, there's no little man behind the curtain watching the movie, and there's no 'i' to take the blame for anything.

one big disappointment i have is that at least half of our psychology faculty don't buy this argument -- one very famous professor who will remained unnamed is still holding out strongly for the idea that evil exists. it can be somewhat distasteful to accept the thought that we don't have volition, and i know i certainly took long enough to come round to it, but if you really stare hard at the facts i'm not sure i see any other logical conclusion. i'm moderately confident that there will be a day (assuming we don't vaporize ourselves with an atomic weapon or get poisoned to death by high-fructose corn syrup) when we'll look back on our textbooks and think: how quaint, we used to talk about the choices people make, much the same way as we look back on 16th century texts that discuss humors and vapors and whatnot. (if i'm right, hopefully the interweb will survive long enough for this to be proof of my prescience. and if i'm wrong, well, i'll be dead anyway.)

where that leaves us with regard to the law is a little bit trickier, but i think the finesse here lies in the fact that because of the illusion of morality that we've evolved, we're obliged to act according to that moral code. which means, essentially, that we're right back to where we started, that even if we don't have free will, we have to punish and correct the deviants among us as if we did. this is an utterly delightful thought, and was my very purpose in writing this post. truly delicious ironies like that don't come along very often.