Thinking Out Loud

Free Will, Mens Rea and Genes¹

It is trite law that, with the exception of strict liability criminal offences, to secure a conviction for a criminal offence, it is necessary for the prosecution to prove the existence of mens rea in the accused when committing a crime. Mens rea is about a state of mind, and intention and recklessness are the two states of mind which constitute mens rea. It goes to the issue of criminal responsibility. If an act, however heinous, is not intended or reckless, the perpetrator could not be held culpable for the act and its consequences. That is the law as we know it.

Whether an act is intentional or reckless pre-supposes that free will exists. Hence a person is not criminally responsible for an act when there is such mental disability that prevents him from knowing either the nature and quality of the act or whether the act was right or wrong. This doctrine encapsulated in the McNaghten Rules pre-supposes that the person labouring under such mental disability is incapable of acting freely.

In fact, in the arena of law, free will is a sine qua non. If, in fact, free will does not exist, then much of our laws would be both meaningless and unenforceable. If an accused claims that it was not out of his free will to intend an action or that it was not out of his free will to be other than reckless, then it could be argued that he should not be held responsible for that intention or recklessness.

The existence of free will is assumed and never questioned, at least until recently. ‘Does freedom exist at all?’ is a question asked by theologians, moralists and philosophers in the past. If science is to be believed, this question may soon be answered in the negative. And if it does not exist, then as the writer of the article ‘Free to Choose’¹ puts it, ‘much of the glue that holds a free society (and even an unfree one) together’ may well fly out of the window.

Modern neuroscience now enables us to watch the activity of the brain in real time – ‘watching the living human brain in action in a way that begins to show in detail what happens while it is happening’. It is said that ‘science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making’.

An example of this shrinking of space concerns an accused who was convicted for collecting child pornography and propositioning children. On the day he was due for sentencing, he had a brain scan and it was discovered that he had a brain tumour. The tumour was promptly removed, and to the amazement of his observers, they found that his pedophilic tendencies vanished. Further, they found that when the tumour started growing back, the pedophilic tendencies quickly returned, and when the regrowth was removed, they disappeared again. In such a situation, should he be held criminally responsible for his pedophilic acts? Was he truly free to resist his pedophilic tendencies?

Anger and violence are usually wrapped up with crime, and scientists have invested resources in their study. They have found that anger and violence can be both congenital and a pre- disposition in a person. They made these conclusions from the discovery of concentrations of particular messenger molecules in the brain. Again in light of such discoveries, should a congenital or pre-dispositional violent person be held criminally responsible for his act? Was he 
truly free?

Curious to know the thoughts of the younger generation, I forwarded ‘Free to Choose’ to two young PhD candidates in their respective fields for their response. The future geneticist has this to say:

… the fact that we are starting to understand the biological basis of behaviour is not significant considering that there has never been - nor will there ever be - any scientific basis for the belief in ‘free will’. No reasonable scientist believes that it will be identified as a structure in the brain - or isolated from tumors in the body, or from vapors in the air. Rather, I think that it must transcend science - or not exist at all. The author seems to assume that nothing can exist outside of science, and so free will cannot exist for the author regardless of whether someone had a ‘pedophilic’ brain tumor in the 1990’s.

But the fact that some people might be pre-disposed to criminal acts does raise some valid issues with regard to justice. In my opinion, I think that morality should be based on social consequences rather than individual motivations - and that the criminal justice system should exist primarily to uphold social order, and not to punish ‘evil’ people.

The historian-to-be responds:

In history, free will is often referred to as ‘human agency,’ and the question of the nature of human agency is a subject of continuous debate. I think that people do have the ability to make choices, and do make conscious decisions about their behaviour, but only within certain constraints. These are, on one level, economic, political, and moral constraints. There are also discursive constraints, which I believe inhibit ‘free will’ – because we depend on discourse, or language, to construct our self-consciousness as the basis of ‘free will’; because discourse pre-exists the individual; and because discourse is limiting and always already imbued with very specific meanings. Humans are always also constrained by physiological and environmental structures, which are in the realm of science, but one that philosophers, historians, and other scholars of the humanities have traditionally neglected. The article you sent is an example of a broader effort to integrate the two fields, which are actually, I think, inherently related.

 However, despite all of these constraints – poverty, gender, race, discourse, the workings of the body and the brain, and the physical environments in which we live – humans always have some choice, and have always, historically, exercised that choice. Even apathy is a choice. So, although it may be a fact that a brain tumor has an effect on this individual’s behaviour, the way in which this individual reacts to this particular physiological constraint has to do with both external forces – those political, economic, and social/moral factors – as well as that individual’s choice and free will, in how he or she responds to these multiple constraints.

 While the idea that the criminal justice system should uphold social order rather than punish ‘evil’ is a good and noble one, the idea of social order must inevitably be premised on some conception of good and evil. In order for the concept of morality to exist, there must be some judgment made at some level about what is good for society and what is not, what constitutes order and chaos, what is acceptable behaviour, etc.

There you have it: two young people from non-legal backgrounds, one in science and the other humanity, but both agreeing that free will does exist, and we are responsible for what we choose, how we respond and the social consequences that follow. That being the case, mens rea will continue to be relevant for determining criminal responsibility (strict liability criminal offences excepted) unless someday, in the distant future, on the balance of probability, our society may collectively decide that free will does not in fact exist at all. But that decision itself is premised on the existence of free will and it will be a case of exercising our free will to do away with free will!

William Wan

Kelvin Chia Partnership

E-mail: william.wan@kcpartnership.com

Notes

1 This reflection is provoked by an article ‘Free to Choose’ in the Economist (Dec 23 2006).