Fundamental Problems of The Philosophy of Mind in Relation to Criminal Law

The Mind-Body Problem and the Problem of Other Minds, two of the fundamental problems of the philosophy of mind, are debatable issues in modern legal systems implicitly. Folk psychology, the different views about the term “free will” and the neurophysiological studies which are all closely related to such philosophical problems provide a basis to interpret criminal law in the modern legal systems. The purpose of this essay is to analyze the approaches to the mentioned philosophical issues and the effects of such approaches on criminal law.

Dualism and monism are two converse approaches to the Mind-Body Problem which investigate how mind and body interact with each other. The question is whether mind is the same thing with brain which is a part of the body or is a separate and different entity from the brain. Dualism argues that mind and body are two separate essence, former is nonphysical and latter is physical, and conscious intelligence is formed of nonphysical essence. Moreover, in Cartesian dualism, mind is as considered as entirely independent entity from the world that people can perceive with their senses. On the other hand, monism tries to explain the mind-body problem with only one essence. It argues that mind and body are identical substances and not separated each other. In reductive materialism which is considered a form of monism, mental states are regarded as physical states of the brain and derive from the activities within central nervous system.

Beside the Mind-Body Problem, the Problem of Other Minds tries to find an explanation to the question that how the mental states of other people are perceived. In Cartesian dualism, the mental states as nonphysical and separate states from body are personal experiences and can experienced distinctly from body to body. Therefore, mental states are unobservable states for an observer who do not experience them personally. In this way, philosophical behaviourism, as a reaction against dualism, regards the Cartesian view of the mind as “ghost in the machine”. Philosophical behaviorism argue that nonphysical mental states do not exist beyond the physical one, the brain, and any mental states can be perceived by interpreting the observable behaviours or circumstances. Behaviours are reflections of mental states to the physical world.

Common-sense folk psychology is a theory which draws from the approach of behaviorism to the Problem of Other Minds. The theory tries to explain and predict the mental states which are behind the behaviors of other people. Folk psychology involves a several predictions based on past mental behavioral experiences of people and represents causality between mind process and behaviors. According to David Lewis, commonsense folk psychology involves claims about mental states which almost all people agree and regard as obvious. Criminal law benefits from folk psychology to determine the inner states of a crime beside the physical ones, “actus raus”. Beliefs, desires or motivations in the inner states of people who take an action play a crucial role in criminalization of this action. As mentioned, crimes have both mental and physical elements and intentionality is one of the significant criteria in the process of predicting the mental states. Common-sense folk psychology provides people to decide whether any action is brought intentionally, with a purpose, or not in modern-legal systems. However, is there any case that people bring an action with an intention which is primarily not their own intention or will? Herein, another philosophical issue which finds also a place in criminal law comes to light; problem of free will and determinism.

Free will, as a definition, is to control and determine the actions of people according to their desires, intents and purposes. Free will is the power to use the mind freely and the power of decision-making and enforcement of the living beings, without any external coercion or necessity; action is the ability to initiate action. Therefore, free will is a prerequisite for morality, personal choices and responsibility. Cartesian dualism is a pro-argument for free will in the sense of freedom of mind. Supporting that mind is a separate entity from the body and conscious activities take place in mind provide a basis for free will. Conscious activities are not manipulated by bodily or environmental factors because it is independent from them.

On the other hand, determinism as a theory suggest that events occurring in the environment are determined by various scientific and physical laws, and that these specified events must be fulfilled. According to determinism, everything is determined and not changeable, therefore, the universe is independent of the will of the observer. In this way, determinism takes a stand against free will. It asserts that decisions, thoughts, actions and moral preferences that people take in everyday life and regard as unique to themselves are determined and are in strict rules. People take their decisions not consciously but depending upon mechanical, economic, social, historical, experimental, psychological, sociological, moral and legal determinism. Free will only develops within a causal chain in which there is no human influence, thus, free will is an illusion. In this context, the concepts of "caste", "consciousness" and "will" have had a great importance and created much controversy in the development of criminal law. In modern legal systems, the concepts of responsibility, crime and punishment cannot be mentioned without free will. Therefore, free will has to be assumed to establish a criminal legal system. In order for someone to be punished, it is not sufficient to find an act that is contrary to law.

At the same time, it is sought whether there is any “caste” or “will” in committing the act. The term "guilty mind" is used to mean that an unintentional act, although contrary to law, will not constitute a criminal offense. In this way, determinism cannot find a place in the modern legal system by itself because of the necessity of free will. Accordingly, it can be said that incompatibilism which is mainly supported by libertarians is not also a comprehensive thesis for criminal law. Libertarianism suggests that free will is real and certainly incompatible with determinism, thus, determinism must be false. However, criminal law makes use of deterministic elements in some cases such as the ones which include “self-defense” or “incitement” as well as it accepts the existence of free will. Concordantly, both determinism and indeterminism are antagonistic as situations contrary to human reality. Therefore, it is obvious that compatibilist thesis which establishes a bond between free will and determinism is much more applicative for criminal law. Compatibilist thesis argues the existence of free will without rejecting the principle of causality of determinism. Although human beings cannot determine everything with free will, it is an asset that has the potential to motivate and guide itself by free will. Determinism and free will are not mutually exclusive, on the contrary they are conditional to each other.

Neurological studies in the last decades have triggered the discussions about the problem of free will and determinism. Most research about brain claim that behaviors of people are mainly determined by neurological causes. Libet’s experiment which investigates the relation of voluntarily hand movements with brain activities is the one of the most significant experiments. The starting time of the brain activities, the starting time of the conscious movement impulse and the exact time of the movement itself are recorded separately. According to results, the order of these three events are like below;

Starting the brain activities

Starting the movement impulse consciously

The movement itself

Libet’s experiment and many other related studies which result similarly to each other provide a different point of view to free will. Some philosophers argue that free will is not exist because the brain activities occur before the conscious movement impulse, in other words, the decision of moving the hand has already been taken in people’s mind before they decide to move their hands consciously with free will. Beside such claims, other philosophers suggest that although the conscious movement impulse occurs after the brain activities, it also occurs before the movement. Therefore, this result shows that people have the conscious to “veto” the movement. As a result, such “veto” ability can also be regarded as free will. Although the available results of experiment, it is not possible to make an exact deduction about free will. Libet also suggests that the brain activities do not mean an extremity and people can stop the movement by interfering it with free will. Therefore, the experiment is not strong enough to change the implications of the modern legal system about free will. Because people have “veto” ability, their actions are not taken unconsciously and people are seen as responsible for their actions.

As a result, mentioned philosophical issues, The Mind-Body Problem and the Problem of Other Minds, have provide a basis to many different approaches about the modern legal systems. Theories which are suggested to find some explanations for such issues have affected the legal institutions in time. While folk psychology is mostly beneficial, the problem of free will and determinism leads to the much more wider debates about criminal law. Beside the fact that free will becomes more debatable and indefinite issue with the help of neurological studies, there is no institution which undertakes the functions of free will in modern legal systems. Even for a determinist, the necessity of recognition of free will in criminal law is inevitable. If the forthcoming studies present more certain findings about the illusion of free will and in the light of such findings people can establish an equivalent institution to free will, neuroscience may change.