To: Frank M.
From: Geoffrey Klempner
Subject: Free will and the justification of punishment
Date: 5 November 2003 12:46

Dear Frank,

Thank you for your e-mail of 27 October, with your first University of London essay, in response to the Pathways question, 'In the light of the critique of 'free will', can blame and punishment ever be rationally justified? (Consider hard cases, such as brainwashing, crimes of passion, the influence of drugs, medical or psychological conditions etc.)'

This is very well written, and would make a good general magazine article. It raises questions that people should think about, giving some excellent examples.

However, there are three main criticisms that I would make.

First, by concentrating on the two extreme views, 'Blame and punishment are always justified', 'Blame and punishment are never justified' you have actually missed the philosophical meat in this issue.

Secondly, you have not answered the question set, because apart from the Russell quote you have said nothing about the 'critique of free will'. What is the general argument that purports to show that free will is impossible? Is it valid? What are the possible responses to the argument?

Thirdly, you give no analysis of your three well-chosen cases. If you had done so, you would have discovered that there is a lot of good philosophy to do here.

The classic argument against free will by the 18th century philosopher David Hume proceeds from a dilemma: either determinism always holds, or determinism sometimes fails to hold.

If, when I perform action X, determinism holds, then the Russell quote applies ('if you followed the antecedent causes back long enough then...').

On the other hand (the other horn of the dilemma) if, when I perform action X determinism doesn't hold then the action is no more *my* action than it would be if I spun a roulette wheel. Let's say some event occurs in me without an antecedent cause, and this event leads to my doing X. In that case, it is not the case that my doing X is attributable to my desires or character or thought processes or anything to do with me. It just happened.

When David Hume puts forward this argument, he doesn't draw the conclusion that there is no such thing as free will, or that punishment is unjustified. Instead, he offers a *re-definition* of a free action which gives a criterion for distinguishing acts for which the agent may be justifiably held responsible and acts for which the agent cannot be held responsible. This criterion is fully compatible with the assumed truth of determinism. (Look up 'Compatibilism'.)

This is just one of several different responses to Hume's dilemma.

Now, while it is true that you will always find people (non-philosophers) who would attribute blame in any circumstance whatsoever, the more reasoned view is that blame and punishment are sometimes justified, and sometimes not justified. Punishment is not justified in the case of someone with an IQ of 35, or in the case of the bank clerk who hands over the money because a gun has been pointed at her head, or...etc.

So the question becomes, whichever philosophical view you come to hold about free will in the light of your response to Hume's dilemma, how does it deal with the hard cases?

The third criticism is that you fail to give any analysis of your three cases. In fact, each case is interestingly different from the others.

In case one, the case of reckless driving, a considerable portion of blame does attach to the action of driving a vehicle in a variety of adverse circumstances: e.g. while unqualified, while under the influence of drink, while suffering from a debilitating medical condition etc. It is true that the punishment is far greater if a death is involved, than if the driver is merely caught without a license, or drunk. This might seem unfair, but that reaction is based on a false understanding of the nature of punishment. (This situation is sometimes referred to as 'moral luck' - look it up.)

In case two, not all actions of a drug addict would be assessed in the same way. Consider, for example, murdering someone to get the drug you crave. So here we are dealing with what can arguably be called an 'extenuating circumstance' which applies in some cases, but not others.

Case three is similar to the famous Patty Hearst case (Patty was convicted of a series of bank robberies committed by the 'Symbionnese Liberation Army' who kidnapped and allegedly brainwashed her.) This is the toughest and in my view the most interesting of the hard cases.

Each hard case can be used as a test of your theory of punishment or theory of free will. The idea is to derive a principle from the theory which leads to a decision in the case in question. (Of course, it may turn out that even with the best theory we are still left without a clear decision.)

A good start, despite the criticisms. I would give the essay a grade of 2/ii.

All the best,

Geoffrey