Sam Harris, Free Will
and Moral Responsibility

7. Moral Responsibility

7.3 Harris' Case Studies

To develop his revisionist account of the popular notion of 'moral responsibility', Harris [2012: 39] asks us to reflect on five cases of voluntary and involuntary action.

  1. A four-year-old boy unintentionally shoots and kills a young woman.
  2. A 12-year-old boy abused as a child intentionally shoots and kills a young woman.
  3. A 25-year-old man abused as a child intentionally shoots and kills his girlfriend.
  4. A 25-year-old man loved as a child intentionally shoots and kills a young woman.
  5. A 25-year-old man loved as a child intentionally shoots and kills a young woman as a result of an undiagnosed brain tumour.

Harris recognizes that the extent to which we ascribe moral responsibility to the shooter starts at zero for the first case and grows larger as we progress through cases 2 to 4. For case 5, because we recognize the shooter as a 'victim of his own biology', we are back to attributing zero responsibility [2012: 40]. Harris wants to 'make sense of these gradations of moral responsibility when brains and their background influences are in every case, and to exactly the same degree, the real cause of a women's death' [2012: 40]. For that, he identifies the 'conscious intention to do harm' [2012: 40] as the crucial criterion for attributing moral guilt. Never the less, the four cases of intentional killing have equally tragic consequences; the death of an innocent woman. For these cases, Harris apportions the degree of guilt according to how much the action was congruent with the person's character. If the act was out of character, the person is less a danger to society and so is afforded less guilt.

But here is Harris' first problem. His trigger for what we 'condemn most in another person'—the 'conscious intention to do harm'—does not always act as a trigger. For the killer in his case 5, Harris rightly regards him as divested of 'all responsibility' [2012: 40] because he is 'purely a victim of biology' [2012: 41]. In legal terms, the killer's brain tumour is considered 'exculpatory' (i.e., clears guilt entirely) even though he intended grievous harm. No condemnation is warranted in this case. Conversely, there are many cases in which a person had no intention of causing harm but is morally responsible none the less. Drunk drivers fall into this category, as well as cases of industrial manslaughter and criminal negligence.

The second problem for Harris is that for which we 'condemn most' is not always the 'conscious intention to do harm'. We ordinarily regard the embezzlement of ten million dollars of shareholders' funds as more condemnable than the twisting someone's arm in a bar room fight. Other kinds of acts that we regard as morally blameworthy and yet do not involve the intention of doing harm are discriminating on the basis of race and sex in employment and housing, fraud and enforcing unconscionable contract terms.

Now, Harris could respond that even though his revision is focused on 'dangerous' people [2012: 40] and 'terrifying predators' [2012: 41], his account can be expanded to regard these other kinds of blameworthy acts as 'harms' as well. However, in some cases, the victims of these wrongs are not even aware that a crime has been committed against them. And yet we find the crimes just as morally blameworthy. So, it's unclear in what sense the unaware people in these cases have suffered 'harm'. It may be the case that when the meaning of 'harm' is expanded to include these kinds of cases, it turns out that the concept of 'free will' is required to make sense of our moral blaming of the perpetrators. We don't know as Harris does not discuss these cases and how they can be incorporated into his revision of 'moral responsibility'. Harris has a lot more work to do here to make his moral theory credible.

As it stands, there are further problems with Harris' approach. Harris asks us to measure the degree of guilt of the perpetrator in proportion to their level of 'risk' of being a 'danger to society' [2012: 40]. However, the degree of moral blameworthiness does not map neatly to the perpetrator's level of risk of harm to society. During trial, it may be determined that the killers in Harris' cases 2, 3, 4 and 5 pose a commensurate degree of threat to society. Yet Harris, along with our ordinary moral intuitions, attributes differing levels of moral blame in each case.

Furthermore, Harris' 'risk' barometer ends up doing no work as he tries to 'make sense' of our moral intuitions [2012: 40]. In his explanation on pages 39–40 for the severity of our moral judgments in each of his five cases, risk of harm to society gets no mention at all. He attributes the lessening of guilt to other factors; immaturity of brain development, history of childhood abuse, psychopathy and a brain tumour. Here again, he draws from the compatibilist's toolbox. All of these conditions he mentions are included within contemporary compatibilist accounts of 'free will' that factor in the person's capacity for reasoning and for regulating their emotions and behaviour. (See, for example, my 4C theory in 'Free Will and Compatibilism' [Allan 2016a].) It seems compatibilism provides a satisfactory account of our moral intuitions regarding Harris' cases 1 to 5 where Harris' own account fails.

So, the task of assigning degrees of moral responsibility in different cases while ignoring the utility of the 'free will' concept is not as simple as Harris' brief treatise makes out. The upshot here is that Harris gets himself confused in his assigning degrees of moral blameworthiness simply on the basis of amount of risk of harm. Of the killer revealed to have a brain tumour described in his case 5, Harris opines: 'Of course, if we couldn't cure his condition, we would still need to lock him up to prevent him from committing further crimes, but we would not hate him or condemn him as evil' [2012: 41]. The crucial point to note here is that patients who commit violent acts because of their brain disease can't be at risk of 'committing further crimes' because they are not criminals to begin with. Harris' inability to explain this fundamental distinction between harmful criminal and harmful non-criminal acts is most exposed when he writes how much 'harder it becomes to draw a distinction between cases like 4 and 5' [2012: 41]. In the end, Harris is coaxing us towards making no moral distinction between the criminal and the brain disease patient.

This is the confusion that ensues when you think like Harris that risk of violent behaviour is a straight line to moral culpability. In his initial summary of our moral intuitions regarding his five cases, Harris correctly identified that the brain tumour 'seems to divest the killer of all responsibility' [2013: 40]. But all of that is forgotten as he follows his mistaken revisionist reasoning. Of course, the obvious difference between the morally blameworthy killer in Harris' case 4 and the patient in case 5 is that the man in case 5 had lost his capacity to exercise his free will. He was no longer the person he was before he developed the tumour, robbing as it did his capacity for volitional regulation. As Harris observed in his introductory remarks: 'we cannot help seeing him as a victim of his own biology' [2013: 40].

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