Abstract
What is so special about mental disorders that they can exculpate defendants? This chapter considers two classic answers to this fundamental question: free will and rationality. The answers are theoretical in nature, transcending the context and boundaries of individual jurisdictions and their standards for insanity. This is what makes these answers particularly powerful: they may be relevant to many legal systems. Still, their theoretical nature is a weakness as well, as they do not take the specific legal contexts into account.
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Notes
- 1.
See also Meynen and Oei (2010).
- 2.
This section on free will is, in part, based on Meynen (2008, 2009b, 2010a, 2013f, 2015a).
- 3.
Reich (2005, p. 206).
- 4.
The British philosopher Peter Strawson (2003, p. 73) wrote the following about the view of some compatibilists (compatibilists support the view that free will and determinism are compatible): “What ‘freedom’ means here is nothing but the absence of certain conditions the presence of which would make moral condemnation or punishment inappropriate. They [these compatibilists] have in mind conditions like compulsion by another, or innate incapacity, or insanity, or other less extreme forms of psychological disorder...” See also Galen Strawson (1994, p.16), who states the following about compatibilists: “Compatibilists believe that one can be a free and morally responsible agent even if determinism is true. Roughly, they claim, with many variations of detail, that one may correctly be said to be truly responsible for what one does, when one acts, just so long as one is not caused to act by any of a certain set of constraints (kleptomaniac impulses, obsessional neuroses, desires that are experienced as alien, post-hypnotic commands, threats, instances of force majeure, and so on).” See also Scanlon (1988).
- 5.
Watson (2003, p. 20). Kalis et al. (2008, p. 409) explain that in philosophical discussions on free will, “[a]ddiction and compulsion are… presented as two different manifestations of the same thing—namely, unfree actions or actions caused by irresistible desires.” On addiction and responsibility, see also Wallace (1999).
- 6.
Levy (2003, p. 214). See also Patricia Churchland (2002, p. 208): “A patient with obsessive-compulsive disorder (OCD) may have an overwhelming urge to wash his hands…. OCD patients often indicate that they wish to be rid of hand-washing or footstep counting behavior, but cannot stop. Pharmacological interventions, such as Prozac, may enable the subject to have what we would all regard as normal, free choice about whether or not to wash his hands.” As a final example regarding OCD, in his article Neurobiology, Neuroimaging, and Free Will, Glannon (2005) writes: “The more general upshot is that, in severe cases at least, OCD impairs the cognitive and emotional processing necessary for one to choose and act freely.”
- 7.
This section is partially based on Meynen (2015a).
- 8.
Libet (1999), Libet et al. (1983), Radder and Meynen (2013).
- 9.
See, for instance, Fried et al. (2011), Soon et al. (2008).
- 10.
I do not take a position on the compatibility of free will and determinism (see Meynen 2010a).
- 11.
Others strongly disagree that quantum indeterminism supports free will (Pereboom 2001).
- 12.
Pereboom (2001, p. 40, emphasis added) also discusses “agent-causal libertarianism”: “According to agent-causal theory, freedom of the sort required for moral responsibility is accounted for by the existence of agents who possess a causal power to make choices without being determined to do so.” Pereboom’s fundamental problem with this position, however, is that “we have no (theoretical) evidence that it is true” (2001, p. 197).
- 13.
In principle, one might not only ask whether free will (or determinism) is presupposed or foundational in criminal law, but also whether free will or determinism are presupposed or foundational in forensic psychiatry (Juth and Lorentzon 2010). According to Simon et al. (2005, p. 178), “psychiatric theories of human behavior are deterministic, whereas the law envisions mankind as possessing free will.” Even though it is true that psychological and biological theories in psychiatry are generally “deterministic” in nature, it is much less clear that the general view of a human being in clinical psychiatry would be deterministic and that, generally, psychiatrists would view people as not free and not responsible. For instance, it is considered crucial in medicine that patients can freely choose between treatment options (see also Chap. 5). In addition, even if psychiatrists were to accept determinism, they could still be compatibilists and thus endorse the freedom of the will. Still, we should recognize a relevant difference between the relationship of psychiatry to neuroscience and that of law to neuroscience. Neuroscience is often considered a science basic to psychiatry (much psychiatric research is neurobiological in nature), and therefore it may be difficult for psychiatrists to ignore neuroscientists’ claims that free will is illusory. Psychiatrists would also pay attention if the same neuroscientists were to say something about, e.g., the pathophysiology of depression. This is different in the relationship of neuroscience to the law: neuroscience is not considered a basic science for the law. It may, therefore, be easier for lawyers than for psychiatrists to just “shrug their shoulders” about neuroscientific findings that allegedly prove the nonexistence of free will (Meynen 2011b).
- 14.
Quote from abstract Morse (2007).
- 15.
See also the next section on irrationality. Interestingly, the 1983 American Psychiatric Association Position Statement on the Insanity defense (Insanity Defense Work Group 1983, p. 683) says: “The American Psychiatric Association, speaking as citizens as well as psychiatrists, believes that the insanity defense should be retained in some form. The insanity defense rests upon one of the fundamental premises of the criminal law, that punishment for wrongful deeds should be predicated upon moral culpability. However, within the framework of English and American law, defendants who lack the ability (the capacity) to rationally control their behaviour do not possess free will.”
- 16.
See, e.g., ECLI:NL:GHAMS:2011:BP6664.
- 17.
See also Morse (2007).
- 18.
See also Green (2015) on freedom and free will in American legal thought and, for example, Warren Burger in Blocker v. United States, 288 F.2d 853 (D.C. Cir. 1961), who emphasized the importance of the concept of free will to U.S. criminal law.
- 19.
This section is partly based on Meynen (2010a, 2013d).
- 20.
For an overview, see Kane (2011), Widerker and McKenna (2003), Russell and Deery (2013).
- 21.
See Meynen(2013d), Müller and Walter (2010) Walter (2001). Meynen (2010a) provides a more detailed analysis of Walter’s (2001) account. In certain respects, the interpretation in this section is somewhat different from Meynen (2010a), as well as from Meynen (2013d).
- 22.
Not all tics occur involuntarily, however; see Bliss (1980), Verdellen et al. (2008).
- 23.
As reported by, e.g., Leentjens et al. (2004), see also Glannon (2009) on this case.
- 24.
The subject of being the genuine source of an action will be revisited in Chap. 5, when we consider authentic action.
- 25.
See Meynen (2010a, 2013d).
- 26.
We may wonder whether more can be said about the cases in which all three senses of free will are helpful to explain why a patient is excused, as in the case of Tourette’s. I posit that these are cases in which the decision-making process is bypassed by the disorder (Meynen 2015b). This means that no actual decision is made by the patient. Such bypassing, however, rarely occurs in psychiatric conditions. It is more likely to occur in neurological illnesses, e.g., during an epileptic seizure.
- 27.
It may also be that people have diverging opinions about what sense of free will is helpful in explaining why a person is excused in a particular case, or which of the senses is most helpful in explaining why he is exculpated. But note that as long as people agree that one or more of the three senses are undermined, the result is probably the same: the person is excused (as long as free will is considered required for responsibility).
- 28.
Such “self-defense” cases are not uncommon scenarios in successful insanity defenses. See, e.g., Mackay et al. (2006, pp. 406–407) on insanity in England and Wales, where M’Naghten is followed: “Once again in many of the reports the “wrongness” limb was interpreted to cover whether the defendant thought his/her actions were legally/morally justified, and/or whether the actions were in perceived self defence of themselves or others, in the sense of protecting their physical or spiritual well-being.”
- 29.
O’Connor (2010). An influential account of responsibility and the notion of control—which distinguishes between regulative and guidance control—was formulated by Fischer and Ravizza (1998). See also Benson (1987, p. 477): “It is true that most writers [philosophers] have assumed as a matter of course that freedom consists in nothing more than control.” On control, free will and psychopathology (obsessive-compulsive disorder), see also Meynen (2013e, f).
- 30.
Nevertheless, one could argue that a person’s delusion may significantly impact his perception of the behavioral options that are open to him, and in that way, knowledge is indirectly related to alternative options and, therefore, to one of the senses of free will.
- 31.
Quote taken from the abstract (Morse 2007).
- 32.
Note that the account of the three senses of free will is not committed to, or based on, a libertarian view of free will, which appears to be what Morse has basically in mind in his paper when discussing the “non-problem” of free will.
- 33.
See also Andrew Eshleman (2014) in the Stanford Encyclopedia of Philosophy, writing that, according to Aristotle, there are two requirements for being responsible for an action: “First, there is a control condition: the action or trait must have its origin in the agent. That is, it must be up to the agent whether to perform that action or possess the trait—it cannot be compelled externally. Second, Aristotle proposes an epistemic condition: the agent must be aware of what it is she is doing or bringing about.” On the relevance of ignorance and lack of control to legal excuse, see also the earlier quote from Moore (1984, p. 221).
- 34.
One might want to formulate the “free will” element more loosely as “freedom,” see, e.g., John Martin Fischer (2010, p. 232): “I accept the traditional view that moral responsibility involves a freedom or control component and an epistemic component.”
- 35.
Some would argue that it is impossible, or at least very difficult, to distinguish reliably between strong and irresistible impulses in individual cases (see above, on the irresistible impulse test). This section does not concern the issue of whether the strength/irresistibility of an urge can be reliably assessed. The issue is that such urges apparently occur in some mental disorders and that if they occur, they appear to be relevant to moral responsibility.
- 36.
See also Meynen (2013d). The DSM-5 criteria for kleptomania are: A. Recurrent failure to resist impulses to steal objects that are not needed for personal use or for their monetary value. B. Increasing sense of tension immediately before committing the theft. C. Pleasure, gratification, or relief at the time of committing the theft. D. The stealing is not committed to express anger or vengeance and is not in response to a delusion or a hallucination. E. The stealing is not better explained by conduct disorder, a manic episode, or antisocial personality disorder (American Psychiatric Association 2013). Note that “irresistibility” of the impulses is not a criterion.
- 37.
Sinnott-Armstrong and Levy (2011, p. 308) provide an analysis of what could make an impulse irresistible. This applies mutatis mutandis to those instances in which urges are resistible, but still extreme: “One reason why she might be unable to stop herself is that the tension mounts until it is too great to resist. A second reason for her inability to stop herself might be that the tension does not increase but her willpower weakens, so her ability to resist the continuous tension diminishes. On a recent view, willpower is like a muscle that can get tired when it is used. Yet a third possible reason why she might be unable to avoid misconduct is that the pressure is unrelenting for long periods and fighting it requires more attention and hope than she can keep up for long enough. After all, I can raise ten pounds easily, but I cannot keep it raised for an hour. The weight does not get heavier, and I might not get so tired that I literally cannot hold it up any more, but I always eventually let it down because my attention lapses or I lose hope and become resigned to the inevitable. Likewise, some forms of mental illness might create persistent urges that can be resisted for a while but not forever. Such mental diseases might make people unable to avoid certain acts without either weakening the will or causing any irresistible urge.”
- 38.
There is debate about the theory, see Inzlicht et al. (2014).
- 39.
The social context may be important as well (Uziel and Baumeister 2012).
- 40.
Of course, if she knows she suffers from kleptomania, we may blame her for not taking precautions to avoid situations in which she may experience and act on such an urge to steal.
- 41.
Cf. Wallace (1994, p. 171): “But even if addictive desires are not literally irresistible, it is plausible to suppose that they are very difficult to resist. If this is right, then it seems safe to conclude that addiction would, at the very least, involve a substantial (if possibly selective) reduction of one’s capacity to regulate one’s conduct in light of the moral obligations that the addictive impulses incline one to breach. Recalling that general capacities admit of degrees, we might say that addiction largely impairs one’s powers of reflective self-control . Hence addition would seem to make it unreasonable to hold the agent fully accountable for the range of behavior that it affects, even if it does not deprive the agent altogether of accountability for that behavior.” Wallace interprets such hard-to-resist impulses in terms of reduced powers of reflective self-control.
- 42.
Having alternatives is one of the senses of free will.
- 43.
However, one may feel that urges can also be understood from the perspective of alternative possibilities (a sense of free will). A kleptomania patient’s alternatives can be considered diminished, because her extreme urges lead to a certain focus or tunnel vision. Other options, although in principle open to the patient, will present themselves as much less appealing or convincing (see, on options and decision-making, Chap. 5). From a different angle, we may argue that the person who gives in to an extreme urge is not really herself at that particular moment. Her behavior and mental activity are to a considerable extent “dominated” by an urge that she may experience as alien. This shows that these senses of free will (having alternative options and being the source) may be interpreted in a way that encompasses the phenomenon of pathological urges (Meynen 2013d). But I think these explanations are less straightforward than recognizing the relevance of the phenomenon of strong urges, as such, to responsibility.
- 44.
See Meynen (2013d). The term “moral insensitivity” can be unpacked in different ways, for instance a lack of moral feelings, responses, etcetera. The phenomenon has also been studied in neuroscience, see Decety et al. (2012).
- 45.
On the psychopath’s moral responsibility, see Fine and Kennett (2004), Haji (2010a), Kinscherff (2010), Levy (2007), Litton (2010), Maibom (2008), Malatesti and McMillan (2010).
- 46.
Maibom argues that the problem psychopaths face has to do with certain “moral beliefs” (Maibom 2008). See also Moore (2010, p. 615) on “emotional capacities helpful to moral insight” and psychopaths.
- 47.
See also Sinnott-Armstrong and Levy (2011, p. 317).
- 48.
Morse (2002, p. 1077). Or, as Morse (2000, p. 253) puts it: “The general capacity for rationality in a particular context is thus the primary criterion of responsibility and its absence is the primary excusing condition.”
- 49.
See Morse (1998, p. 335): “nonculpable irrationality is the underlying basis for the insanity defense.” See also Morse (1998, p. 352): “What the delusional defender and the child have in common is not ‘pathological causation’; they have in common the absence of full capacity for rationality. Irrationality is the genuine excusing condition that is operative.”
- 50.
Elliott (1996) does not, however, discuss the specific implications for criminal responsibility, or, more specifically, the insanity defense, as Morse does.
- 51.
Elliott (1996, pp. 123–124) writes in his final remarks: “Following on Aristotle’s account of voluntariness, there are two types of condition where a person may have “acted” but where that connection between agent and action is absent: conditions where the agent has acted in ignorance, or where he has acted under compulsion. Now, the general stance I have tried to argue for is one in which judgments about the responsibility of mentally ill offenders are based roughly on this broad scheme of responsibility. Accordingly, there are three general ways in which person’s mental illness can excuse her from responsibility: if she has acted in ignorance, if she has acted under compulsion, or, as I have argued in this last chapter, if her illness is so severe that we can no longer consider her a morally responsible agent. This is an oversimplification, of course, as the preceding chapters will have made abundantly clear. How things play out for actual mental disorders is much more complicated.” Elliott adds, on the same page (1996, p. 124), that personality disorders should not lead to excuse, with the possible exception of the psychopath. As far as his endorsement of the basic Aristotelian scheme is concerned, I agree. I find the third category confusing, and I am not sure how to distinguish it from the Aristotelian categories.
- 52.
See also Buchanan (2015): “There has been no uniformity, however, on how rationality should be defined.”
- 53.
See, e.g., the sentence (Sober and Wilson 2010, p. 147): “Decision theory says that it is irrational to co-operate (to act altruistically) in one-shot prisoners’ dilemmas.”
- 54.
Morse (2002, p. 1067). See also Morse (2000, p. 256): “Because I claim that rationality best explains our doctrines of responsibility, the concept of rationality must do a great deal of work. One might therefore desire a more precise, uncontroversial definition of irrationality, but such a desire would be unreasonable.”
- 55.
See also Sect. 2.2.
- 56.
Sinnott-Armstrong and Levy (2011, p. 317).
- 57.
See also Sect. 2.4 on rationality and the Model Penal Code test.
- 58.
Cf. Sinnott-Armstrong and Levy (2011, p. 317) who write about the United States: “Still, no jurisdiction has officially adopted this suggestion or defined insanity directly in terms of irrationality. This omission might be because the term “rational” is vague and controversial. Still, it might be possible for the rationality approach to be developed in fruitful ways.”
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Meynen, G. (2016). Lack of Free Will and Irrationality. In: Legal Insanity: Explorations in Psychiatry, Law, and Ethics. International Library of Ethics, Law, and the New Medicine, vol 71. Springer, Cham. https://doi.org/10.1007/978-3-319-44721-6_4
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