Sam Harris, Free Will
and Moral Responsibility

7. Moral Responsibility

7.1 Free Will and the Courts

It's in the chapter titled Moral Responsibility that Harris works hardest to rescue the common-sense notions of 'right and wrong', 'good and evil' and 'moral responsibility' from seemingly unsettling implications of viewing people as 'neuronal weather patterns' subject to impersonal and universal cause and effect [2012: 38]. Harris begins the chapter with a snippet from the United States v. Grayson, 1978 [United States v. Grayson: 1978] legal case in an effort to show how the assumption of indeterminism underwrites law in the United States. The judge in that case did opine that the defendant's case rested on 'a deterministic view of human conduct that is inconsistent with the underlying precepts of our criminal justice system'. He appealed to the 'universal and persistent' foundation stone in law of the 'belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil'.

Now, it is true, thankfully, that 'free will' is a cornerstone of the U.S. legal system. However, the trial judge's linking of free will to indeterminism in this case is ancillary to the case being tried. This case was an appeal against a sentencing judge's discretion in considering the defendant's false testimony when fixing the sentence. It was not concerned with settling a centuries-old metaphysical question about the basis of free will. Further, this was but one judge's opinion among other contrary expert opinions on how a metaphysics of free choice grounds legal responsibility.

What's important here is how the legal system works in established theory and in practice to determine whether a defendant acted of their own free will. In fact, in examining whether there were any circumstances that either eliminated or mitigated a defendant's ability to choose freely, judges and juries look for evidence of coercion or manipulation by a third party, drug addiction and mental illness. (For a systematic summary of judicial defenses, see, for example, Robinson [1982].)

Furthermore, a guilty plea is not accepted if the 'defendant isn't mentally competent at the time he agrees to the plea, for example, due to a developmental disability, intoxication or influence of narcotics' [Law Library 2016]. The accused must be able to understand the court proceedings and 'consult with his lawyer with a reasonable degree of rational understanding' [Law Library 2016]. Contra Harris, far from courts asking for evidence of neurophysiological indeterminacy in judging whether a defendant did or did not act of their own free will, they look for exactly the types of constraints to which compatibilists point that limit a person's exercise of their free will.

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