Husband hates wife; in a state of nature he would kill her. Only his cowardice deters him. One evening, cleaning his gun, he accidentally shoots and kills her. Can husband now be punished for any crime?Depending on the degree of care he took to avoid mishap, the offense is ordinarily negligent homicide or manslaughter. We want to know whether he can be blamed for more. Do his unconscious intentions bear on his culpability?
The Interpretation of Dreams, Sigmund Freud provides a simple illustration of the workings of unconscious motivation. Freud didn't want to return a library book quite yet. He knew that without even forming an intention to delay the return, he could trust his unconscious mind to cause him to forget. Of course, that's how it worked out.
It's surprising that psychoanalysis has so little affected the legal concepts of negligence and intent in either criminal or civil law. Freud taught and clinically supported the thesis that nothing in psychology is accidental: even slips of the tongue having meaning. The most interesting expressions of unconscious motives for psychoanalysis are those symbolically representing some wish, but as with Freud and his library book, accidents can realize unconscious wishes directly.
Many psychologists lack Freud's confidence that all behavior is psychologically determined, but findings in cognitive psychology in recent decades have required a thorough rethinking of the origination of behavior. Today's consensus accepts that all cognition (distinguished from its products) is unconscious. Although the Freudian question of motivated negligence hasn't been directly raised, cognition's unconscious nature invites study of the driving unconscious intentions.
The final blow to a purely conscious approach comes not from philosophy but experimental science, which has proven that consciousness has no direct relationship to the acts conscious thoughts seem to cause. Whereas Freud's theories should prompt questions regarding the involuntariness of apparently negligent acts, these experimental results make the apparently intentional acts less so, directly refuting the theory that behavior is freely willed.
What's implied for law by the undermining of concepts of both negligence and willfulness? Benjamin Libet's 1980's scientific work presents the rare instance when a single scientific finding resolves a philosophical question, as Libet's work rules out simplistic theories of free will, while simplistic theories were the only ones credible. Libet and others have replicated that the decision to act arises in the brain before the subject experiences the conscious act of deciding. If free will consists of conscious decisions causing the designated act, then we clearly don't have it, since real causes occur before, not after, the events they cause. The perception–or rather illusion–that the conscious decision causes the resulting behavior is the basis of the universal naïve belief in free will (although I haven't seen the literature expressly drawing this conclusion).
Ironically, Libet was a fervent believer in the existence of free will and proposed a process for its realization in light of his findings. A subject making the conscious "decision" retains the ability to veto the unconsciously engendered act. Libet's theory is free will's last gasp, unsuccessful because the veto is itself an act, with the same unconscious prehistory, thus arising with the same independence from consciousness and bearing the same involuntary character as the original act. The most coherent interpretation at present is that the veto is as little "free" as the act. (See Velleman, David (2000) The Possibility of Practical Reason. Oxford University Press.)
The nonexistence of free will and the intentionality of some unconscious behavior carries both apparent and real implications for law's evolution: 1) directly undermining criminal law's nonrebuttable presumption that voluntary acts are freely determined by the actor; 2) undermining the moral basis for punishment, insofar as it depends on the actor being the originator of acts; and 3) flattening the distinction between negligent and intentional mens rea and negligence and intentional torts.
Commentators commonly cite criminal law's presumption of free will as a potential casualty of discovering it doesn't exist, but the presumption's only legal function is to impose responsibility on all actors for voluntary acts. The demise of one theory doesn't fell an institution. Without logical contradiction, a person without free will can be under legal compulsion to obey.
But is the person responsible; does the unraveling of the explanation regarding why a person can be punished for his voluntary acts undermine the moral basis for criminal punishment? It vitiates the retributionist justification for punishment as desert, a result that is less radical than a crisis of justification but greater than a reshuffling of theories. Desert's demise is a welcomed enlightenment, but some consequences are less benign. Deterrence takes up the justificatory slack from retribution, but from a moral standpoint, deterrence isn't quite up to the job because of its inability to define the set of punishable persons. To rely completely on a deterrence theory turns criminal punishment into a form of social engineering, with no limits but expediency. Such punishment meted out amorally is vulnerable to purely pragmatic enlargement of the set of people who can be incarcerated or otherwise punished. The antipunitive intellectual progress of repudiating free will, paradoxically, fosters punishing more citizens.
Eliminating the conventional rationale for punishment also augurs a certain leveling of the distinction between negligent and intentional torts. Since the premise that voluntary acts are products of free will no longer distinguishes these categories morally, the distinction loses functionality. The recent research even disposes of pragmatic justifications for restricting punishment to intentional acts, as the unconscious has proven more intelligent than most had believed, hence deterrable.
That rehabilitation today is a joke—psychiatric and drug referrals, veiled punishment—contribute to free will's paradoxically punitive death throes: an old ideology crumbles without new institutions arising.
Next in the free will series: What is free will?