Posner on Free Will

Unless you've been under a rock this week (or enjoying the holiday cyber-free), you've no doubt heard that Richard Posner is guest-blogging on Brian Leiter's blog. Yesterday, Judge Posner explained his thoughts on free will and criminal mens rea:

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. . . . 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.

This argument reminded me of a law school friend, Michael Weiss, who suddenly and sadly died a few years ago. While a third year law student, Michael had an editorial published in the Wall Street Journal.

Because Prof. Hamilton required us to bring the WSJ to Business Associations every day, we read it together as a class. Michael's editorial, dated February 11, 1992, argued, using Immanuel Kant, that Jeffrey Dahmer had acted out of free will in the same sense that Judge Posner writes of free will. (However, Judge Posner seems to create an exception for insanity, which Michael would not have.) The editorial is available on Westlaw, but the relevant portion is reprinted below. I still don't agree with Michael, but I wish he were here so that we could argue about it again. I know for a fact that he would be a blogger!

In his "Critique of Pure Reason" (1781), Kant holds that before we perceive something the mind has already shaped and colored it into something of its own creation. We therefore can never understand the way things "really" are. In this context Kant addresses one of the most confusing problems of criminal law, "caused" mental states. Kant maintains that the argument over whether a given mental state was caused or free confuses the way things seem to us and the way things are. . . . Kant proves that in order to make sense of our inner experiences we must assume that our mental states are freely chosen. Although all physical objects have a cause, as mental beings we are always free; our mind makes it that way. Kant makes clear that the fact that we can think implies freedom. That we can think proves as a practical matter that we are free. . . . This solution neatly answers the problem of Jeffrey Dahmer. The defense's proof that Mr. Dahmer's intention to do ghoulish acts was somehow caused by his childhood or biology is irrelevant. These things are not unique in their ability to cause mental states. All mental states, as physical events, have a cause. However, we also must consider Mr. Dahmer's drive a mental act and we must assume it is free. To try to prove it was caused or free is a mistake. It all depends on how we look at it. According to Kant, practically, logically, it was free.

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