8. The Compatibilist Case for Free Will and Personal Responsibility
Having highlighted some of the issues with Turkheimer’s secularized libertarian theory of free will, we will now outline some of the key features of a compatibilist theory of free will, showing how personal responsibility and desert (i.e., eligibility for praise, blame, reward and punishment) can exist when all human behavior has antecedent causes. In this section we will draw heavily on Daniel Dennett’s work to show how far Turkheimer’s theory of free will strays from his compatibilist position, despite Turkheimer and Harden’s frequent allusions to his work.
A poll of 1798 professional philosophers conducted in 2020 found that 59% of the academics surveyed were compatibilists, 11% were free will skeptics, and 19% supported some form of libertarianism (Bourget & Chalmers, Reference Bourget and Chalmers2023).Footnote 50 Moreover, if we restrict the results to nonreligious philosophers, 68% were compatibilists, 14% were free will skeptics, and only 8% were libertarians.Footnote 51 Of course, these results do not decide the matter one way or another but, given the three most visible commentators on the free will question in the behavioral genetics community (i.e., Eric Turkheimer, Kathryn Paige Harden, and Kevin Mitchell) all defend a secularized version of libertarian incompatibilism, these results indicate that a marginal viewpoint in academic philosophy is being substantially overrepresented in the scientific debate and suggest that the most widely supported view among professional philosophers needs to be brought to wider attention.
8.1 Separating Causation From Control
Perhaps the most fundamental obstacle to reconciling free will and moral responsibility with determinism (or, more generally, with comprehensive causation of human behavior) is the widespread confusion of causation with control. We have already documented several examples where Turkheimer and Harden conflate the two; for example, when Turkheimer writes that the nonshared environment ‘represents the degree to which intelligence is under that individual’s control, as opposed to the degree to which it is limited by either genes or upbringing’ (Turkheimer, Reference Turkheimer2011, p. 827 [emphasis added]) or when Harden writes ‘in my view … the extent to which someone’s life outcomes can be traced back to their starting point in life calls into question how much they could have acted differently’ (Harden, Reference Harden2021, p. 200 [emphasis added]). It is their flight from the genetic and shared environmental causation of behavior that makes them seek refuge in the nonshared environment as a sphere in which we can (potentially) preserve control but, as we have shown in Part II, the nonshared environment provides no more sanctuary from determinism, causation, or luck than any other variance component — not unless we are prepared to grant that some fraction of the nonshared environmental variance captures a supernatural form of uncaused self-causation.
Self-control is an essential prerequisite for free will and personal responsibility, but the practical distinctions we draw between people who are self-controllers and people who are controlled by others (or subject to irresistible compulsions) do not hinge on the former group escaping the reach of causality. As Dennett points out, ‘Determinism means everything is caused, but it doesn’t say that everything’s controlled. Control requires an agent who is a controller’ (Kuhn & Dennett, Reference Kuhn and Dennett2021 [emphasis added]). To help re-sensitize us to this important distinction, Dennett enlists the example of a remotely controlled drone:
If you’ve got a drone and you’re controlling it using the remote controller and you turn the remote controller off, the thing spins out of control.It’s determined in both cases: in one case it’s controlled by you; in one case it’s controlled by nothing. It’s just like a leaf in the wind.(Kuhn & Dennett, Reference Kuhn and Dennett2021 [emphasis added])
Dennett reinforces this distinction elsewhere by contrasting the uncontrolled descent of a boulder down a mountain slope with the controlled descent of a human skier:
‘[T]hink of a boulder that’s been dislodged in an earthquake and it’s rolling down the mountainside. Its path is determined, but nothing is controlling it. Gravity is doing the main work, but every little bump it [hits] takes it one way or another. But now think of a skier skiing down the same slope. The skier is just as determined as the boulder is, but the skier is in control — unless of course, she isn’t! If she flies out of control, then she’s more like the boulder, but determinism has nothing to do with whether she’s in control or not. Being in control is what we want, and that doesn’t mean being free of causation. It just means having the capacity to anticipate and adjust your … actions in light of what you want to do. (Kuhn & Dennett, Reference Kuhn and Dennett2021 [emphasis added])
The distinction between entities that are controlled or not, and the distinction between entities that are controllers or not, are distinctions we can draw entirely within a deterministic framework in which causation reigns, and these distinctions bear directly on whether we hold someone responsible for their actions. We do not hold someone responsible for their conduct when they are the kind of person who lacks the capacity for self-control, or when something prevents them from exerting that capacity, such as when another agent is controlling them.
Importantly, while our actions are caused by the events in our past, the past does not control us because the past is not an agent that can anticipate our actions in order to try and frustrate or direct them. Dennett elaborates:
The past doesn’t control you, and the reason it doesn’t control you is that there’s no feedback to the past. The past can’t anticipate. You are what you are because of the past that you’ve had, and the past before that, going way back to the Big Bang. But whether or not you’re in control is a matter of what’s true of you now and whether any other agent is in control of you. (Kuhn & Dennett, Reference Kuhn and Dennett2021 [emphasis added])
In fact, when we make the mistake of conflating causation with control, we end up erasing the practical distinctions between being in control or out of control on which the very concept of control depends. The agentless past is left ‘controlling’ everything and nothing else has any control. Boulders and skiers are left equally adrift on the cosmic tide of what just happens. This should signal that something has gone deeply awry in our use of language.Footnote 52 The difference between things that are in control, out of control, or controlled by something else are linguistic distinctions that children readily learn based upon concrete, empirical differences they observe. These practical distinctions do not demand that children assume some entities are partially exempt from the laws of causation.
8.2 Recognizing Different Degrees of Agency Within a Deterministic Framework
While it is true that, if determinism holds, all our actions are causally determined by the prior state of the universe, we can nevertheless recognize different degrees of agency within a deterministic framework. We can still draw a meaningful distinction between the agency of an octopus anticipating and avoiding the attacks of a seal (e.g., by squirting ink, swimming away, changing direction when pursued, hiding in crevices, and camouflaging itself) and the far more limited agency of a clam with very crude defenses against the same predator (closing its shell and burrowing into the sand indiscriminately whenever it senses vibrations in the water). It is less inevitable that an octopus will be eaten when it is spotted by a hungry seal than it is for the simpler mollusk. In this way agency is adaptive. The ability to anticipate and avoid complex threats facilitates the survival and reproduction of creatures like octopuses that possess it, and this is the sense in which Dennett means ‘freedom evolves’ (Dennett, Reference Dennett2004). Octopuses are also sophisticated predators in their own right, anticipating how prey such as fish will behave and adjusting their behavior in order to catch them. By contrast, clams are filter feeders living off whatever particles of plankton and detritus drift their way. Clams simply can’t do very much compared to octopuses. Things mostly just happen to them.
The difference in agency between octopuses and clams remains a meaningful one, even if we grant that a particular octopus would have always darted left to escape a seal at a particular moment given the sum of its experiences leading up to that moment — and that it would do so again no matter how many times we pressed a cosmic rewind button and let the story of the universe play over.
The question of whether a particular entity has agency or not can never be decided by whether they might have behaved differently under precisely the same set of circumstances. We have no power to step outside of time to observe whether a particular entity sometimes reacts differently to the same circumstances when the universe is rewound and replayed. If agency could only be determined on this metaphysical basis, the word ‘agency’ would lose all practical meaning. Instead, we recognize degrees of agency based on the kinds of practical distinctions we can observe between the behavior of creatures like octopuses and creatures like clams, based on how tailored their responses are to subtle differences in the conditions they encounter.
Just as we can recognize meaningful differences in agency between octopuses and clams within a deterministic framework, we can likewise recognize meaningful differences in agency between humans and our ape cousins based not just on our superior cognitive abilities but on our co-evolved capacities to acquire information through language and culture. And again, these differences remain meaningful even if we accept that a particular person would have always robbed a particular bank under the exact set of conditions and deliberations that ultimately led up to that crime.
8.3 The Compatibilist Sense in Which We ‘Could Have Done Otherwise’
As these last examples show, free will — as compatibilists like Dennett understand it — is not the freedom to do something different under exactly the same circumstances. That is a kind of freedom that would require independence from all causal influences, including all the information and deliberations that we properly want to inform our decisions and actions. Dennett explains:
If our decisions are determined, [it] is strictly impossible [to make a different decision in exactly the same circumstances]. In exactly the same circumstances, we’ll be causally determined to do exactly the same thing! But why should that matter? That is not a relevant factor to consider when you want to know if somebody is a moral agent. … Free will is not decision-making in the absence of causation. We want … our decisions to be subject to constraints. If they weren’t, we’d be pathological deciders. … Our brains are not insulated from the environment, nor do we want them to be. We want our brains to be exquisitely sensitive to the environmental impacts, the information that’s flowing in, and then to make good decisions — informed decisions — on the basis of that information. They are part of the causal fabric. (Radboud Reflects, 2016 [emphasis added])
Uncaused action, then, is not a kind of freedom that anyone needs or has any reason to desire. All that we mean when we say someone ‘could have done otherwise’ is that they might be expected to behave differently in similar kinds of circumstances if presented with different information. Dennett elaborates:
Here’s what ‘could have done otherwise’ actually means. It does not mean causal indeterminism. … It’s a measure of rational flexibility, not metaphysical isolation from causation. It’s the sort of thing you’re getting at if you ask this sort of question of an agent: ‘Would it have made any difference if we’d drawn his attention to X?’, where X is some relevant fact that the agent didn’t consider. And if the answer is yes — if we’d drawn his attention to X, he’d have said ‘Oh my gosh! I was about to make a terrible mistake’ and would do something different — that’s being moved by reasons; that’s being able to do otherwise! If, when we try to draw attention to X, the agent has simply can’t hear us, can’t act on this, then we say, he can’t be moved by reasons. He could not have done otherwise.’ (Radboud Reflects, 2016)
The phrase ‘he could have done X’ is invariably conditional on some stated or unstated ‘… if Y’ statement. That is, these statements necessarily imply alternative conditions to the ones that actually took place. In many cases, ‘could have done’ statements describe alternative conditions in which we do not hold the subject responsible; for example, James could have won today’s race ‘if his shoelace hadn’t snapped’ or ‘if he hadn’t sprained his ankle last week’. As the philosopher G. E. Moore highlighted, the sense in which ‘could have done otherwise’ implies personal responsibility is under the specific subset of alternative hypothetical conditions where someone could have acted differently if they had wanted to do so badly enough;Footnote 53 for example, James could have won the race ‘if he had tried harder’ or ‘if he hadn’t stayed out late drinking with friends the previous night’ and so forth. Therefore, ‘he could have won the race’ only implies personal responsibility under conditions where, had the incentives been stronger, he would have won the race.
Note, then, that personal responsibility is always based on capability: if James was competing against Usain Bolt, he could not be expected to win the race even if we gave him the strongest incentives we could conceive of; for example, if we offered him a billion dollars to win the race or threatened to slowly torture him and his family to death if he lost. We cannot blame James for losing to a stronger athlete. This is the special sense in which, as philosophers rightly insist, ‘ought implies can’.Footnote 54 The relevant meaning of ‘can’ in this axiom, however, is not someone’s capacity to behave differently from how the causal laws of the universe inexorably led them to behave in a particular instance. It is in the conditional sense of whether they could have acted differently under hypothetical conditions in which they had been sufficiently motivated to do so.
Most of us are incapable of becoming billionaires, or sports stars, or Nobel prize winners, even though the positive rewards for achieving these things are extremely high — and ordinarily no-one blames us for failing to accomplish such things. There are many socially desirable outcomes that even the strongest incentives will fail to encourage most of us to achieve because we are constitutionally incapable of achieving them. However, there are many more modest outcomes that are within our grasp that social incentives can motivate us to achieve more frequently. There are also many socially undesirable actions that almost everyone can avoid doing if the incentives are strong enough, which is why, for example, we maintain strong disincentives against criminal behavior and why criminal responsibility is such an indispensable concept. We do not hold people responsible because they could have acted differently under precisely the same set of circumstances. We hold them responsible because the expectation of praise, blame, reward, and punishment is part of the incentive framework that shapes how people behave. We hold them responsible because, as a rule, doing so makes them behave better than they would if we didn’t.
At their most extreme, hard incompatibilists insist that no-one ought to do anything because, as the philosopher Michael Huemer notes, hard incompatibilism ‘is the thesis that the only thing anyone can ever do is the thing he actually does’ which means ‘if a person fails to perform an action, that means he literally was unable to perform it’ (Huemer, Reference Huemern.d.). In this way hard incompatibilism risks descending into fatalism. But once again, something seems to have gone seriously awry with hard incompatibilists’ use of language: the prospect that determinism is true (or more generally, that all human behavior has deterministic or indeterministic causes) should not lead us to collapse the distinction between verbs of possibility like ‘can’ and ‘could’ and verbs of actuality like ‘will’ and ‘did’. Even if history was always going to unfold in a particular way, there is a distinction between what people have the power to do and what they actually do (which is a tiny subset of all the things that they are capable of doing). There is an important logical and philosophical difference between the condition of never lifting a heavy object because you are too weak and the condition of never lifting that object because the tide of events never gave you reason to try. When philosophical arguments funnel us down a path that effectively demands we prune away some of the most basic distinctions in our vocabulary like an Orwellian Newspeak dictionary, it is a sign that something has gone terribly amiss in our reasoning.
8.4 The Difference Between Skill and Luck
We have described above how free will skeptics are inclined to collapse the distinction between controllers and noncontrollers by arguing that everything is ‘controlled’ by the past. We have also described how they are inclined to collapse the distinction between what we ‘can do’ and ‘will do’ by arguing that we are incapable of doing anything except what we actually do. They are likewise inclined to collapse the distinction between skill and luck by reducing everything to luck: to say that we are ‘lucky’ to be skilled, ‘lucky’ to be hard-working, ‘lucky’ to be honest, brave, or kind. Taking her lead from luck egalitarians like the philosopher John Rawls, Harden is particularly explicit in drawing this conclusion, stating that we should ‘Recognize genetics as a type of luck in life outcomes, undermining the meritocratic logic that people deserve their successes and failures’ (Harden, Reference Harden2021, p. 246). Indeed, where Turkheimer is eager to maximize the behavioral variation that is explained by human agency, Harden seems eager to minimize it, embracing the exculpatory implications of incompatibilism. In response to Dennett’s question, ‘Is science going to show us that nobody ever deserves punishment?’ (Dennett, Reference Dennett2004, p. 21), Harden’s answer is essentially, ‘Yes!’. She writes: ‘Once we account for the powerful effects of luck — both environmental and genetic, together — there is remarkably little territory left for “personal responsibility” (Harden, Reference Harden2021, p. 204. Note the scare quotes around ‘personal responsibility’).
As we have already described, Harden seems prepared to accept swingeing cuts to the nonshared environment as a measure of human agency to the extent that behavioral variation is explained by things like stochastic developmental differences or other environmental differences between identical twins that are manifestly outside of their control. In this respect, Harden’s position sometimes becomes almost indistinguishable from full-blooded free will skepticism. Compare Harden’s language to the language of the free will skeptic Gregg Caruso, who writes: ‘what we do and the way we are is ultimately the result of factors beyond our control, and … because of this we are never morally responsible for our actions, in … the sense that would make us truly deserving of blame and praise, punishment and reward’ (Dennett & Caruso, Reference Dennett and Caruso2021, p. 19 [emphasis added]).Footnote 55 Correspondingly, we see Harden prosecute a wholesale assault on the ideas of personal responsibility, merit and desert. She writes:
There is no measure of so-called ‘merit’ that is somehow free of genetic influence or untethered from biology … There is no way to purge luck from human affairs; no way to disentangle, particularly for any one person, how much she deserves by virtue of her character and resourcefulness from how much she happened to benefit from a constellation of genetic and environmental advantages. As Rawls wrote … ‘The idea of rewarding desert is impracticable’. (Harden, Reference Harden2021, pp. 247–248. Note the scare quotes around ‘merit’)
In this passage Harden still leaves wiggle room for some sliver of the nonshared environment to capture differences in ‘character and resourcefulness’ where desert can get a foothold, but her position nevertheless appears to be that, at best, one can deserve very little because luck swallows (nearly) everything.Footnote 56 In this respect, Harden’s theory of free-will-by-subtraction borders on nihilism in that it threatens to undermine the concepts of praiseworthiness, blameworthiness, merit, and desert on which many of our most cherished values ultimately depend.
Elsewhere Harden writes ‘we should be bothered by inequalities that are due to factors over which people have no control, and that they therefore cannot be said to deserve’ (Harden, Reference Harden2021, p. 161 [emphasis added]). But by insisting that nothing is deserved if it is based on something undeserved, Harden draws us into an infinite regress where nothing is ever deserved, and everything is ultimately down to luck. The philosopher Michael Zuckert, highlighting this issue with desert in Rawls’s A Theory of Justice (Reference Rawls1971), writes:
Rawls has entirely mistaken the very logic of desert. If justice is getting what one is due, then the basis of desert must ultimately be undeserved. … It simply destroys the character of desert to demand, as Rawls does, that the basis of desert be itself deserved. For example, if we say a man deserves some primary good because of some quality or action ‘x’, we can always ask, as Rawls does, ‘but does he deserve ‘x’?’ and so on. We then either have an infinite regress of bases of desert or arrive at some basis, some beginning point, which the individual cannot claim to have deserved or to be responsible for, but only to have, to have been given. … [E]ven to reduce the basis of [desert] claims to the very narrow one of life itself reveals Rawls’ difficulty: surely no individual can claim to ‘deserve’ or ‘claim credit for’ his existence. (Zuckert, Reference Zuckert1981, p. 477 [emphasis added])Footnote 57
Against the impulse to extend the concept of luck so far as to make it a universal explanation for every outcome, extinguishing desert for praise or blame, Dennett points out that the concept of skill provides a bulwark against luck, preserving a space where responsibility and desert can exist.
When we are told that something that happened was just luck, we should ask ourselves: luck as opposed to what? … We are not just lucky; we are skilled. … When the talented succeed, it is not because they are lucky, but because they are talented … [T]here is a tendency to treat ‘lucky’ and ‘unlucky’ as complementary and exhaustive, leaving no room for skill at all. On this view nothing in principle could count as skill or the result of skill. This is a mistake. Once one recognizes that there is elbow room for skill in between lucky success and unlucky failure, the troubling argument that seems to show that no one could ever be responsible evaporates. Luck averages out and skill will tell in the end. … [A]nyone who thinks that all losses are explicable in the end as due to bad luck, and all victories as due to good luck, simply misuses the concept of luck. (Dennett, Reference Dennett1984, p. 98 [emphasis added])
‘Strawson may have said that “luck swallows everything”’ Dennett writes elsewhere, ‘but, if so, he was wrong’ (Dennett & Caruso, Reference Dennett and Caruso2021, p. 27). While there may be a cosmic sense in which we are ‘lucky to be skilled’ just as there is a cosmic sense in which we are lucky that none of our ancestors died childless (Dennett, Reference Dennett1984, p. 94), this cosmic and exhaustive conception of luck is not the kind that bears on questions of desert or moral responsibility. As noted above, ought implies can. We are morally responsible for those things (and only those things) that we are capable of doing (or not doing). The more proximate distinction between luck and skill is the relevant domain in which desert claims obtain because it is the space where we can incentivize people to put such skills as they possess to uses we prefer. This is where the infinite regress of the basis of desert stops because beyond it the currency of desert (praise, blame, reward, and punishment) can change no-one’s behavior and therefore serves no purpose.
8.5 Personal Responsibility Is About Deterrability, Not Determinism
For compatibilists, the distinction between the kinds of people who can be moved by reasons and those who cannot, between those who can be incentivized to change their behavior and those who cannot, is the entire basis of the distinction between responsible persons who are eligible for blame and punishment and nonresponsible people who are exempt. The economist and political philosopher Friedrich Hayek expands on what responsibility entails below:
The only questions that can be legitimately raised … are whether the person upon whom we place responsibility for a particular action or its consequences is the kind of person who is accessible to normal motives (that is, whether he is what we call a responsible person) and whether in the given circumstances such a person can be expected to be influenced by the considerations and beliefs we want to impress upon him. (Hayek, Reference Hayek2011, p. 138 [emphasis added])
Framing it negatively, we might say that the concept of personal responsibility hinges on deterrability, not determinism. We hold most people responsible for their actions because we recognize that holding them accountable, treating them as being deserving of praise and blame, shapes their actions in a socially desirable manner on the basis of their expectation of praise and blame. We hold people responsible when they are the type of person whose behavior can be changed by doing so, in the type of situation where their behaviour can be changed by doing so, and we hold them responsible precisely in order to change their behavior. Hayek continues:
Strictly speaking, it is nonsense to say, as is so often said, that ‘it is not a man’s fault that he is as he is,’ for the aim of assigning responsibility is to make him different from what he is or might be. … We assign responsibility to a man, not in order to say that as he was he might have acted differently, but in order to make him different. (Hayek, Reference Hayek2011, pp. 137–138 [emphasis added])
There is an exceptional class of people, however, who are not ‘accessible to normal motives’, whose behavior cannot reliably be shaped by the expectations of reward or punishment, and who therefore cannot be entrusted with the full benefits of freedom. As Hayek puts it (in somewhat outdated language):
The complementarity of liberty and responsibility means that the argument for liberty can apply only to those who can be held responsible. It cannot apply to infants, idiots, or the insane. It presupposes that a person is capable of learning from experience and of guiding his actions by knowledge thus acquired; it is invalid for those who have not yet learned enough or are incapable of learning. (Hayek, Reference Hayek2011, p. 139 [emphasis added])
This distinction between people who are, in principle, deterrable and those who are not underpins the near ubiquitous legal justification for denying criminal responsibility to young children, to people with severe cognitive disabilities, and to people with serious psychiatric conditions. When individuals in this exceptional category inflict harm on others, we do not hold them responsible. But the corollary of being placed outside of the class of responsible persons is that such individuals are made wards of their parents, their guardians, or the state and do not get to enjoy the liberties that the rest of us do. Because they are not in control of themselves, they are placed under the control of others.
Once again, the distinction between the kinds of people who are responsive to reasons and the kinds of people who are not (e.g., between adults and children, between the cognitively abled and severely cognitively disabled) is one that we are perfectly capable of making without making questionable metaphysical assumptions. Compatibilists like Dennett and Hayek hold that the practical distinction we can draw between these classes of morally competent and morally incompetent persons is logically sufficient to ground the existence of free will, personal responsibility, and desert in a deterministic universe. Dennett writes:
There really are people, with [e.g.,] mental disabilities, who are not able to control themselves, but normal people can manage under all but the most extreme circumstances, and this difference is both morally important and obvious, once you divorce the idea of control from the idea of causation. … To suppose that some further condition should be met in order for you or anyone else to be ‘truly deserving’ of praise or blame for your actions is to ignore or deny the manifest difference in abilities for self-control that we can observe and measure readily. In other words, the rationale or justification for excusing someone, holding them not deserving of criticism or punishment, is their deficit in this competence. (Dennett & Caruso, Reference Dennett and Caruso2021, p. 19 [emphasis added])
Personal responsibility, on this understanding, is not merely compatible with a deterministic universe but depends upon our behavior being caused — inverting the traditional logic used by incompatibilists. If people were not predictable in how they would respond to complex incentives, we could not possibly hope to shape their behavior by the prospect of praise and blame or reward and punishment. Hayek elaborates:
[T]he whole suggestion that ‘free [will]’ in any relevant or meaningful sense precludes the idea that action is necessarily determined by some factors proves on examination to be entirely unfounded. … [T]he conception of responsibility rests, in fact, on a determinist view. … [A]ll those factors whose influence is sometimes inconsistently denied by those who deny the ‘freedom of the will,’ such as reasoning or argument, persuasion or censure, or the expectation of praise or blame, are really among the most important factors determining the personality and through it the particular action of the individual. It is just because there is no separate ‘self’ that stands outside the chain of causation that there is also no ‘self’ that we could not reasonably try to influence by reward or punishment. (Hayek, Reference Hayek2011, pp. 136–137 [emphasis added])
9. Causation and Criminal Responsibility
Having briefly sketched out a compatibilist interpretation of free will, we will now explore how compatibilism protects our intuitive conceptions of moral and criminal responsibility better than the libertarian incompatibilist position defended by Turkheimer and Harden.
9.1 The Nonshared Environment in the Courtroom
A first observation is that it is difficult to see what practical use society is supposed to make of the interpretation of the nonshared environmental variance component as a measure of personal responsibility (as argued in Turkheimer, Reference Turkheimer2011), or of the related notion that personal responsibility can be measured by the variance in a trait left unexplained by known genetic and environmental causes (as suggested in Turkheimer, Reference Turkheimer2000, and Reference Turkheimer2019).
With respect to criminal justice, for instance, how useful is it to know that 50% of the variation in criminal behavior can be attributed to nonshared environmental influences when a defendant is in the dock for murder? After all, this is a population parameter and tells us nothing about whether any particular defendant killed because of their genetic background, because of their family background, or because of idiosyncratic experiences that had nothing to do with their ‘starting point’ in life. Should it lead to more lenient sentencing if new data indicated that the nonshared environmental influence on criminal behavior was in fact 70% rather than 50%? Should it lead to the mass release of previously convicted offenders? Of course not.
We need to know about the particulars of each person’s case and, indeed, this is exactly what the criminal justice system already does. The defence team will marshal specific evidence showing that this particular defendant had diminished culpability for their actions; for example, that they are severely cognitively disabled, were temporarily incapacitated, or were acting under duress. They will not argue (or at least they should not argue) that their defendant ‘could not have done otherwise’ because the universe is deterministic, or because genetic and shared environmental influences substantially explain criminal behavior. Moreover, unless that evidence is particularly compelling, the default presumption will (rightly) be that the defendant is a person who should be held responsible for their actions, as surely as the default presumption will be that the defendant is innocent of the crime they are charged with until compelling evidence is presented that puts their guilt beyond reasonable doubt.
What is true in the courtroom is also true for the moral distinctions we make in ordinary life. If someone bumps into an old lady on the bus, we will evaluate their behavior very differently based on whether they did so intentionally (with malice), because they were looking at their phone (from negligence), or whether they did it because the bus driver unexpectedly slammed on the brakes (outside of their control). These are the kinds of moral distinctions which matter to us. Not whether the population heritability of bumping into old ladies is 30% or whether the universe is deterministic. This is because personal responsibility hinges on moral competency and self-control, not on the proportion of variation in the population that is explained by a particular genetic or environmental variance component.
Moral competency, as we have described it in section 8, can be impaired by specific influences arising under any behavioral genetic variance component. Specific genetic influences can make us morally incompetent (e.g., Rett syndrome), specific shared environmental influences can make us morally incompetent (e.g., brain damage incurred through extreme parental neglect affecting all children in a family), and specific nonshared environmental influences can make us morally incompetent (e.g., a head injury or a brain tumor). Indeed, perhaps the most famous example of environmentally induced moral incompetency in psychology is a nonshared environmental effect: the freak accident which drove a 2-meter iron rod through the prefrontal cortex of Phineas Gage.Footnote 58
9.2 Genetic and Environmental Causes of Crime Should Not Excuse Crime
The major difference between compatibilists like Dennett and Hayek and libertarian incompatibilists like Harden and Turkheimer is that the latter would count all manner of (known) genetic and shared environmental causes of crime as exculpatory, not just those that render a person inaccessible to normal motives or morally incompetent in the ways described above. They would classify social determinants of crime as exculpatory such as low parental socioeconomic statusFootnote 59 and would likewise classify genetic determinants of crime as exculpatory; for example, if an adoptee had criminals as biological parents.Footnote 60 In effect, both hold that our genetic and shared environmental backgrounds determine our behavior (albeit imperfectly) all the way up and down the ladder of prosocial through to antisocial behavior: the firefighter who bravely rushes into burning buildings to rescue people is as much a victim of circumstance as the armed robber who loots jewelry stores. Both authors try to invest part of the nonshared environment (or unexplained behavioural variation) with special properties as a domain of choice where people make what they can of their genetic and shared environmental luck and take credit for their actions, but as we have discussed in previous sections (especially section 4), the nonshared environment is as much a domain of determinism and luck as any other variance component. The full-blooded free-will skeptic only goes a step further, arguing that we are slaves of our nonshared environmental histories as well, making the circle of exculpation and irresponsibility complete (see Figure 6).
Figure 6. The expanding circle of exculpation across five conceptions of free will. The figure illustrates the approximate degree to which genetic (A), shared environmental (C), and nonshared environmental (E) causes of human behavioral variation are perceived to infringe on human agency under five different conceptions of free will with respect to violent criminal offending. Indicative variance components are taken from Frisell et al. (Reference Frisell, Pawitan, Långström and Lichtenstein2012), which found genetic influences explained 55%, and shared environmental influence explained 13%, and nonshared environmental influence explained 32% of the variance in violent criminal offending. Similar results were obtained under both MZ versus DZ twin analysis and full-sib versus half-sib analysis in the Swedish population register. Under compatibilism only a tiny fraction of the total variation in violent criminal offending is explained by the behavior of individuals who are not considered responsible on account of their diminished capacities. These capacities can be diminished by genetic, shared, or nonshared environmental causes. We then show three libertarian conceptions of free-will-by-subtraction. First, under Turkheimer’s (Reference Turkheimer2000) ‘gloomy prospect’ theory of free will, only known genetic and environmental causes of behavior are considered exculpatory. This leaves most of the variation in criminal behavior unexplained, including most of the heritable variation. Second, under Turkheimer’s (Reference Turkheimer2011) nonshared environmental theory of free will, only nonshared environmental variance is assumed to index human agency, but it is expected to overestimate human agency because it also captures measurement error and measured with family environmental influences. Third, under Harden’s (Reference Harden2021) conception of free will, most of the variation in behavior is attributed to exculpatory genetic and environmental causes (known or unknown); however, a sliver of the nonshared environment is presumed to capture ‘differences in character and resourcefulness’ that are not ultimately due to antecedent causes of behavior that lie outside of the individual’s control. Note that under all three libertarian conceptions of free will, no-one is fully responsible, because everyone is partly influenced by genetic or environmental causes. Finally, free will skepticism holds that all of the variation in criminal behavior is ultimately due to antecedent causes of behavior that lie outside of the individual’s control and maintains that personal responsibility does not exist.
By contrast, compatibilists recognize genetic and environmental influences as causes of crime, but these are considered orthogonal to the question of criminal responsibility except when these influences also happen to render an individual morally incompetent or otherwise inaccessible to normal motives. Even individuals from the most deprived social environments and with the highest polygenic scores (or most extensive family pedigrees) for criminal behavior will still be considered morally responsible for their crimes if they remain the kinds of people who are in control of their behavior and (in principle) deterrable from crime.
Dennett employs the metaphor of an ice hockey game to highlight that social determinants of crime are not legitimate excuses for breaking our moral and legal codes:
Hockey players know the rules and if they violate them without legitimate excuse, they accept that the penalty called was fair and just. What is a legitimate excuse? It wasn’t really high-sticking because the accused was tripped by an opposing player, which sent him out of control, causing his stick to rise. Not: it wasn’t high-sticking because the accused suffered a terrible childhood and has great difficulty controlling his aggressiveness. And certainly not: it wasn’t high-sticking because determinism is true, and he couldn’t do otherwise! It seems to me that the obvious ridiculousness of this idea shows that philosophers have simply misdiagnosed our everyday convictions about when ‘could not have done otherwise’ exempts from responsibility. What people care about, rightly, is whether or not the alternative was within the control of the agent, which is independent, once again, of determinism.Footnote 61 (Dennett & Caruso, Reference Dennett and Caruso2021, p. 108 [emphasis added])
In his book, Law Legislation and Liberty, Hayek (Reference Hayek2012) makes the same point concerning the social determinants of crime:
It is certainly sad that men can be made bad by their environment, but this does not alter the fact that they are bad and must be treated as such. … Crime is not necessarily the result of poverty and not excused by environment … [I]t is one of the indispensable principles of a free society that we value people differently according to the morality of their manifest conduct, irrespective of the, never fully known, reasons of their failures. (Hayek, Reference Hayek2012, p. 503 [emphasis added])
9.3 Understanding the Basis for the Brain Tumor Defense
Just as we can divorce social causation from moral responsibility, we can also separate out biological causation, and here we will discuss biological causation in the broader sense of including neurological as well as genetic causes in order to address some well-rehearsed arguments presented by prominent biosocial scientists.
In an article in The Atlantic called ‘The Brain on Trial’, the neuroscientist David Eagleman recounts the case of ‘Alex’, a man charged with sexually abusing his 12-year-old stepdaughter (Eagleman, Reference Eagleman2011). Eagleman describes how Alex — previously a respectable and law-abiding citizen — was found to be suffering from an undetected brain tumor in his frontal cortex that triggered pedophilic urges alongside a host of other disinhibitory symptoms. When the tumor was identified and resected Alex’s pedophilic urges went away, and his criminal behavior stopped. When his pedophilic urges later returned, he submitted to further scans and, sure enough, the tumor had grown back. After its complete removal, the urges stopped, never to return, strongly suggesting that the tumor was causing Alex’s out-of-character behavior. Eagleman takes it as a given that because a tumor caused Alex’s criminal behavior that he was not responsible for it. He then invites us to consider how advances in technology will allow us to detect ever subtler differences between the brains (and genes) of criminals and noncriminals, inexorably shrinking the circle of criminal culpability until it disappears altogether. He writes, ‘within the coming decades. … Neuroscience will be better able to say why people are predisposed to act the way they do. … A just legal system cannot define culpability simply by the limitations of current technology’ (Eagleman, Reference Eagleman2011).
In his book The Anatomy of Violence, the biosocial criminologist Adrian Raine discusses the same case and reaches similar conclusions (Raine, Reference Raine2013). He asks his readers why people with neurodevelopmental deficits in their frontal cortex can be held any more responsible for their crimes than people with brain tumors affecting that region.
If you agree that [Alex] was not responsible for his actions because of his orbitofrontal tumor, what judgment would you render on someone who committed the same act as [Alex] but, rather than having a … tumor, had a … prefrontal pathology with a neurodevelopmental origin[?] …Would you view … untreatable offenders with volume reductions in their prefrontal cortex and amygdala as more responsible [than Alex]? (Raine, Reference Raine2013, pp. 326–327)
But compatibilists can reverse Raine’s challenge and ask why we should not hold people like Alex just as responsible for their crimes as criminals without brain tumors or other neuroanatomical abnormalities? After all, the relevant question concerning whether someone was responsible for a crime cannot be if ‘their brain made them do it’. Our brains make us do everything! Instead, the operative question is whether a given perpetrator is the kind of person who is, in principle, deterrable from committing the crime in question. To determine whether Alex was responsible for sexually abusing his stepdaughter we should try to determine (a) whether he was still in a condition to realize that his actions were harmful and wrong, (b) whether, knowing that, he was capable of seeking help before his crimes were committed, and (c) whether he would have been less likely to commit his crimes if he had felt there were a greater likelihood of being caught or if the expected punishment for the crime had been more severe (i.e., we should try and determine if he was still accessible to normal motives and capable of being diverted from his crime by different incentives). In many cases where someone suffers from a tumor or some other neuroanatomical abnormality the answer to these questions will be ‘no’, but when the answers are ‘yes’ they suggest that individuals like Alex are (at least partly) culpable for their crimes and eligible for punishment (and not just treatment).
If, as scientific materialists, we recognize that our consciousness is physically embodied and that all people behave well or badly because of how their brains are wired, we need to entertain the prospect that a brain tumor or brain injury can potentially make a good person bad, not just morally incompetent. It can potentially make them, for example, aggressive, sadistic, and cruel, while leaving their accessibility to normal motives intact. This idea that changes to our biology can potentially make us bad rather than merely irresponsible is a regular trope in the origin stories of comic book villains, such as the Green Goblin in the Spider-Man franchise, who is morally corrupted by an experimental drug taken to increase his strength and intelligence (Lee, Reference Lee1966). Nevertheless, it has proved a stumbling block to biosocial scientists working on criminal behavior who repeatedly insist that we rip up the rule book of the criminal justice system based on the latest discovery that some observable differences in brains can explain differences in criminal behavior.Footnote 62
What is true for the neurological causes of crime also holds true for the genetic causes of crime. A high genetic propensity to criminal behavior does not oblige someone to become a criminal and should not make them ineligible for punishment, except insofar as their genetic propensity to crime renders them indifferent to the prospect of punishment. David Eagleman notes that having a Y chromosome makes you ‘eight times as likely to be arrested for murder, and 13 times as likely to be arrested for a sexual offense’ (Eagleman, Reference Eagleman2011). It would seem highly imprudent for the judicial system to hold males less responsible for these crimes.
9.4 Tough on Crime, Tough on the Causes of Crime
Compatibilists reject excusing criminals because of the social and biological causes of their crimes when they are morally competent individuals, but this does not make them indifferent to the causes of crime and the need to address them. We can be ‘tough on crime and tough on the … causes of crime’ as the former UK Prime Minister Tony Blair once proclaimed (Blair, 1993). We should seek to reduce criminogenic environments and try to identify treatments that mitigate people’s genetic and biological criminal proclivities where we can. But while we should take extensive measures to mitigate the causes of criminal behavior, crime is not merely a disease to be treated. While we should try to identify and remove the kinds of criminogenic brain tumors that caused Alex to sexually abuse his daughter, we should also continue to punish people who break the law to the extent that we believe they are in control of their actions. Similarly, while we can prescribe anaphrodisiac drugs to individuals seeking to manage their pedophilic sexual urges, we still require convicted pedophiles to serve jail time. Treatment is not a replacement for punishment for morally competent persons who have already committed a criminal offence. It remains indispensable that we continue to hold deterrable individuals responsible because they can be deterred. Failing to do so would lead to a society that is either much less safe and/or much less free than the kind of society we currently inhabit.
9.5 The Fundamental Psycho-Legal Error
At the beginning of this section, we noted that in a criminal trial the defense would traditionally need to marshal specific evidence of moral incompetence, duress, or temporary incapacity to show that a particular defendant should be excused and could not ordinarily appeal to genetic and environmental causes of behavior as excuses in and of themselves. Unfortunately, philosophical confusion about the nature of personal responsibility has allowed free-will-by-subtraction theory to creep into the courtroom. In direct contrast to Dennett’s ice hockey example discussed above, it has become increasingly common for defense teams to argue for diminished responsibility on the basis that ‘the accused suffered a terrible childhood and has great difficulty controlling his aggressiveness’, even though we would find it completely inappropriate for a referee to take such factors into consideration when issuing penalties in the comparatively low-stakes context of an ice hockey game.
More broadly, defense teams have been increasingly eager to solicit testimony from expert witnesses on the neurological, genetic, and environmental causes of crime to persuade judges and juries to excuse their clients or to mitigate the severity of their sentences. Discussing this development, the philosopher and legal scholar Stephen Morse notes that the 1957 Broadway musical West Side Story contained a number called ‘Gee, Officer Krupke’ (Sondheim, Reference Sondheim1956) in which the delinquent members of the Jets gang cynically rehearse the various arguments they can use to evade punishment for their crimes; for example:
Dear kindly Sergeant Krupke
You gotta understand:
It’s just our bringin’ upke
That gets us out of hand.
Our mothers all are junkies,
Our fathers all are drunks.
Golly Moses, natcherly we’re punks!Footnote 63
Morse notes that ‘in 1957 this was a sendup of that view, but that view became very, very prevalent in the ‘60s, and by the time I was in law school there was already what I call “Creeping Krupkeism”: the pernicious view that people are not responsible for their behavior in most circumstances, as opposed to not responsible in only a small minority of circumstances’ (The Free Will Show, 2023).Footnote 64 The source of this Creeping Krupkeism, Morse explains, is the mistaken belief that causation is itself an excusing condition, a mistake he calls ‘the fundamental psycho-legal error’ (Morse, Reference Morse1993).
Once again, the essence of this mistake is the selective application of the logic of incompatibilism to a salient subset of the causes of human behavior. Morse notes that ‘In a causally deterministic universe, all phenomena, including human actions, are fully caused. If causation were per se an excusing condition, no one could ever be responsible for anything. Thus, causation can not be an excusing condition in law and morals, both of which hold some people responsible and excuse others’ (Morse, Reference Morse2007, p. 216 [emphasis added]).
The causation of behavior cannot be marshalled as an excuse in itself because, unless we presume that some fraction of human behavioral variation does not have antecedent causes, this would ‘obliterate the possibility of responsibility altogether’ (Morse, Reference Morse2007, p. 204). Instead, the only occasions in which genetic or environmental causes are exculpatory are when they satisfy the kinds of excusing conditions that are already embedded in our moral and legal conventions; for example, of serious mental impairment, physical incapacity, acting under duress, and so forth:
For purposes of assessing responsibility, it does not matter whether the cause of the behavior in question is biological, psychological, sociological, or some combination of the three. Adducing a genetic or neurophysiological cause does no more work than adducing an environmental cause. The question is always whether the legal criterion for non-responsibility in question is met, however that condition may have been caused. A person who is mentally disordered and does not know right from wrong will be excused from criminal responsibility whether her rationality impairment was primarily a product of faulty genetics, a neurotransmitter defect, bad parenting, social stress, the alignment of the planets, or some combination of the above. The most important question for forensic practice is whether the legal excusing condition was present, not how it was caused. At most, causal knowledge, if sufficiently precise, may help establish whether, or the likelihood that, the legal criterion in question was satisfied.’ (Morse, Reference Morse2007, p. 217 [emphasis added])
10. Free Will, Liberty, and Coercion
Contra Turkheimer, the way that we hold the line against creeping exculpation and preserve a space for human agency is not by pinning our hopes on the nonshared environment or on the epistemological limits of behavioral science (i.e., on the gloomy prospect), but by defining an exceptional class of persons who lack the moral competence to be held personally responsible and by recognizing this moral competence in everyone else.
There is no bright line as to where we draw the threshold of moral competency and decide someone can be trusted with the freedoms that we afford responsible persons rather than being institutionalized, placed under the care of a legal guardian, or otherwise having their movements monitored and controlled by others. These thresholds are social conventions we use to balance the trade-offs between liberty and security, and we revise them over time in light of new information, changing circumstances, and shifting values. We could define the age of legal majority to be 16 or 21 instead of 18 and indeed we do draw the threshold of responsibility differently for different activities (such as voting, driving a car, or drinking alcohol) and in different jurisdictions. As we consider where exactly to draw these thresholds, the temptation to absolve more people of personal responsibility will ordinarily meet with some resistance in the other direction because there are freedoms people widely cherish that are threatened by setting that line too low. Dennett writes:
Aren’t we headed toward a 100 percent ‘medicalized’ society in which nobody is responsible, and everybody is a victim of one unfortunate feature of their background or another (nature or nurture)? No, we are not, because there are forces — not mysterious metaphysical forces, but readily explainable social and political forces — that oppose this trend and they are of the same sort, really, as the forces that prevent the driving age from rising to, say, thirty! People want to be held accountable. The benefits that accrue to one who is a citizen in good standing in a free society are so widely and deeply appreciated that there is always a potent presumption in favor of inclusion. … And so the best strategy for holding the line against creeping exculpation is clear: Protect and enhance the value of the games one gets to play if one is a citizen in good standing. It is erosion of these benefits, not the onward march of the human and biological sciences, that would threaten the social equilibrium. (Dennett, Reference Dennett2004, p. 292 [emphasis added])
Unfortunately, eroding the benefits that accrue to citizens in good standing is precisely what Turkheimer and Harden propose that we do: by collapsing the distinction between responsible and irresponsible persons and by externalizing responsibility from individuals onto society. The social equilibrium is not threatened by the question of whether the age of legal majority is 18 or 21, but it is threatened when we deny the whole concept of personal responsibility or suggest that large swathes of society are not morally responsible (or are only semi-responsible).
10.1 The Threat to Public Safety
The first way in which the social equilibrium is threatened is that, if criminals are seen as victims of circumstances to be treated and rehabilitated rather than punished, the lack of appropriate deterrents will predictably lead to more crimes being committed, and society risks descending into anarchy. This danger is implicit in Ayn Rand’s caricature of the free will skeptics’ argument in her anti-collectivist novel The Fountainhead where she writes:
‘[I]t’s true that there’s no such thing as free will. We can’t help what we are or what we do. It’s not our fault. Nobody’s to blame for anything. It’s all in your background and your glands. If you’re good, that’s no achievement of yours — you were just lucky in your glands. If you’re rotten, nobody should punish you — you were unlucky, that’s all. … To be logical … we should not think of punishment for those who are rotten. Since they suffered through no fault of their own, since they were unlucky and underendowed, they should deserve a compensation of some sort — more like a reward. (Rand, Reference Rand1943, pp. 444–445)
This passage was written nearly 80 years before Harden’s The Genetic Lottery, but Rand’s ironic depiction of criminals as unfortunates who were simply ‘unlucky in their glands’ anticipates (and pre-emptively critiques) the indulgent attitude towards criminals shown in that book. For example, in a chapter titled ‘Personal Responsibility’, Harden invites her readers to conclude that ‘Genes influence people’s impulsivity and risk-taking so they are less to blame for committing a crime’ (Harden, Reference Harden2021, p. 196).Footnote 65 She goes on to write:
[W]e don’t judge people as choosing to be blue-eyed, or as being responsible for making sure they are not brown-eyed, or as deserving more because they are blue-eyed, because … eye color isn’t a choice. My green eyes are not something for which I can take credit or blame. We do, however, judge people for murder. As we do draw these sorts of distinctions between different types of human outcomes, we can consider whether it seems reasonable to take information about genetics (and information about the role of the early environment) into account when we are drawing them. And in my view, the answer is yes — the extent to which someone’s life outcomes can be traced back to their starting point in life calls into question how much they could have acted differently. (Harden, Reference Harden2021, p. 200 [emphasis added])Footnote 66
10.2 The Threat to Liberty
Harden later goes on to approvingly quote an essay from the journalist David Roberts, who writes: ‘acknowledging the role of luck lays a moral foundation for humane … carceral policy’ (Harden, Reference Harden2021, p. 248). However, this purportedly ‘humane’ outlook on incarceration and sentencing paves the way for the social equilibrium to be threatened in a second direction, that is, with respect to liberty. The only way to preserve public safety and avert general anarchy in a society that disavows punishment is to monitor, control, and detain people who are perceived to be potentially dangerous. Harden does not tease out this implication herself, but it has been developed by other biosocial scientists who, like Harden and Turkheimer, view genetic and environmental causes of crime as exculpatory. In his aforementioned essay, David Eagleman writes a passage which could have come straight from the pages of The Genetic Lottery. It reads:
When it comes to nature and nurture, the important point is that we choose neither one. We are each constructed from a genetic blueprint, and then born into a world of circumstances that we cannot control in our most-formative years. … The unique patterns of neurobiology inside each of our heads cannot qualify as choices; these are the cards we’re dealt. (Eagleman, Reference Eagleman2011 [emphasis added])
On this basis, Eagleman concludes that: ‘the more we learn the more the seemingly simple concept of blameworthiness becomes complicated and the foundations of our legal system are strained’. Indeed, he ultimately recommends that ‘Blameworthiness should be removed from our legal argot’ (Eagleman, Reference Eagleman2011). Adrian Raine reaches similar conclusions in his book, where he writes, ‘A child does not ask to be born with birth complications or a shrunken amygdala, or [with genetic variants associated with criminal offending]. So if these factors predispose some innocent babies to a life of crime, can we really hold them responsible for what they eventually do — no matter how heinous the crime?’ (Raine, Reference Raine2013, p. 306). Concluding that we cannot, he argues that ‘Repeated violent offending is a clinical disorder’ (Raine, Reference Raine2013, p. 337) and proposes that we should take a ‘public health approach to violence’ (Raine, Reference Raine2013, pp. 329–330) where crime is prevented and treated rather than punished. In keeping with this public health approach, Raine invites us to imagine a future in which detention centers are made far more comfortable and luxurious than today’s prisons:
[T]he detention centers are highly secure, but are not the harsh holding bays of days gone by. They are equipped as a home away from home. … There are full recreational and educational services. … [Detainees] have full communications access to their family and … friends. … The food is good and nutritious. … There is no work to produce pressure. They have TV, movies, books, gym, swimming, basketball, and other recreational activities. There is less stress all around … a bit like a summer camp but without having to pay. Or like resting up in hospital without feeling ill. (Raine, Reference Raine2013, pp. 343–346)
However, there is a dark side to this ‘public health model’ where criminals are viewed as patients. Under it, individuals who commit crimes of equal severity are given different sentences, with individuals deemed to pose a higher risk to society facing prolonged, or even indefinite, detention. Eagleman calls this an ‘actuarial approach’ with ‘statistically based sentencing’:
Deeper biological insight into behavior will foster a better understanding of recidivism — and this offers a basis for empirically based sentencing. Some people will need to be taken off the streets for a longer time (even a lifetime), because their likelihood of reoffense is high; others, because of differences in neural constitution, are less likely to recidivate, and so can be released sooner. (Eagleman, Reference Eagleman2011 [emphasis added])
In her book, Harden briefly acknowledges the moral logic that Eagleman follows in his essay, noting that ‘Original studies of how genetic information was used in criminal trials proposed that it might work like a “double-edged sword,” potentially making a defendant seem less morally culpable, but also seem more likely to be a continued danger to society’ (Harden, Reference Harden2021, p. 195), but she fails to tease out the serious downsides of this outlook. Treating information on genetic (and environmental) causes as exculpatory is ‘a double-edged sword’ precisely because moral responsibility and individual liberty are two sides of the same coin: once we accept that, being what they are, some people cannot keep themselves from hurting others, it becomes in society’s clear interests to restrict their freedoms indefinitely until the risks they pose can successfully be mitigated through behavioral or medical treatment. Providing a concrete example to drive home this logic, Eagleman writes, ‘the majority of known serial killers were abused as children. Does this make them less blameworthy? Who cares? … We still need to keep [them] off the streets, irrespective of [their] past misfortunes. The child abuse cannot serve as an excuse to let [them] go; the judge must keep society safe’ (Eagleman, Reference Eagleman2011).Footnote 67
But there is an even darker side to this ‘humanitarian’ public health approach. Raine, who, like Eagleman, sometimes calls his approach to crime an ‘actuarial approach’, takes this exculpatory logic to its natural conclusion. If we are prepared to detain people indefinitely because they pose an unacceptably high risk of reoffending, why, he asks, ‘wouldn’t we pre-emptively detain high risk individuals before they have ever committed a crime?’ (Raine, Reference Raine2013, Chapter 11). In this way, a purportedly ‘humanitarian’ approach to crime ultimately reduces criminals to something less than fully human. Instead of moral agents who can be deterred from criminal activities by the threat of punishment they are treated as something akin to dangerous animals to be housed in (suitably enriched) enclosures where they can live out their lives comfortably without bringing harm to others.
This public health approach to crime initially sounds humane. It appeals to our compassion for criminals as victims of genetic and environmental circumstance who ‘couldn’t help’ but act as they did, and it focuses on treatment and rehabilitation rather than punishment. In these respects, it is an approach that is particularly seductive to psychologists and psychiatrists who have been trained to view aberrant and antisocial behavior from a clinical perspective in which moral judgments are reserved. However, treating criminals as patients infantilizes them and potentially inflicts a far worse fate on them than punishment, namely indefinite or even pre-emptive institutionalization.
10.3 Paternalism as a Form of Selective Incompatibilism
When we discard the distinction of moral competency that separates criminals from psychiatric patients and adults from children, we risk creating a paternalistic society that treats all of its citizens as psychiatric patients or children — in the sense that it is a society which substitutes treatment for punishment, which controls instead of deters, and which calibrates incentives to each individual, rather than applying common standards to all. Hayek cautions: ‘The fact that not all human beings can be given full liberty must not mean that the liberty of all should be subject to restrictions and regulations adjusted to individual conditions. The individualizing treatment of the juvenile court or the mental ward is the mark of unfreedom, of tutelage’ (Hayek, Reference Hayek2011, p. 140). Dennett likewise warns, ‘The idea that we should treat everybody as a child is, I think, bizarrely inappropriate. It would turn civilization into a horror show.’ (Kuhn & Dennett, Reference Kuhn and Dennett2021). A society in which no-one is afforded the status of a responsible agent and the privileges of freedom that go along with it risks becoming a sanitarium society in which the lives of its citizens are subject to the whims of public authorities with sweeping discretionary and coercive powers. The perverse logic of the idea that normal adults cannot be held responsible for their actions is that it justifies enslaving them.
Of course, this begs the question of who can be entrusted to assume responsibility over others under conditions in which no-one is responsible. Dennett has previously highlighted this inconsistency in the logic of free will skepticism, stating ‘If nobody has free will, then everybody is morally incompetent… so we better get them all [legal guardians]. I don’t know who the guardians are going to be, since none of them are competent either!’ (Radboud Reflects, 2016). This highlights that using determinism to justify paternalism involves a similar philosophical error to free-will-by-subtraction libertarianism, namely the error of selective incompatibilism. Selective incompatibilism can sometimes manifest as selectiveness about which individuals are morally incompetent, rather than selectiveness about which causes are exculpatory. This can give rise to an Orwellian logic that holds that no-one is truly responsible, but some people are more responsible than others.Footnote 68
Adrian Raine flirts openly with this Orwellian logic in The Anatomy of Violence. Against the ‘extreme’ view (!) that people should be held fully responsible for their behavior ‘barring exceptional circumstances such as severe mental illness’Footnote 69 and ‘the other extreme’ that free will does not exist, Raine argues that ‘free will likely lies on a continuum, with some people having almost complete choice in their actions, while others have relatively less’, adding that ‘most of us lie between these extremes’ (pp. 306−307 [emphasis added]).Footnote 70 In effect, only a select minority are recognized as responsible adults, while everyone else is graded into various stages of advanced (or not-so-advanced) adolescence.
Taken to its logical conclusion, Raine’s notion that we should recognize a continuum of individual differences in personal responsibility implies that an elite minority should have the right to decide on ordinary people’s behalf what is in their — and society’s — best interest. Like parents of children of different ages, these social guardians get to adjudicate which decisions different people can be entrusted to make for themselves, which liberties they can safely enjoy, and which information they can safely be exposed to. As we have seen, in Raine’s case, this logic extends all the way to the indefinite pre-emptive detention of individuals who have never committed a crime when they are deemed to present a high statistical risk of offending.
Selective incompatibilism is also tacitly enlisted to support political paternalism in Harden’s The Genetic Lottery. As we described in section 5, after making the incompatibilist case at length that genetic and environmental causes of behavior diminish people’s responsibility for their crimes or their desert for their social attainments, Harden nevertheless insists on ‘our social responsibility to address inequality’ (2021, p. 93). Paradoxically, while genetic and environmental causes of behavior can partially excuse rapists and murderers of the responsibility for committing their crimes, they do not absolve the rest of us of ‘the responsibility to arrange society to the benefit of all people’ (p. 93). Indeed, we are told that ‘Considering genetics as an absolution for social responsibility is a false pretext that must be dismantled’ (p. 24).
10.4 Coercive Paternalism in Harden’s Egalitarian Political Program
It is left unclear in Harden’s book how we should determine who gets to decide which liberties and privileges are afforded to different members of society, but under Harden’s egalitarian scheme the coercive powers of technocratic administrators extend across every aspect of public life. The guiding imperative of Harden’s political philosophy is that ‘Society should be structured to work to the advantage of people who were least advantaged in the genetic lottery’ (Harden, Reference Harden2021, p. 251).Footnote 71 In service of that imperative she proposes a sweeping society-wide program of positive discrimination that seeks to level the playing field between the genetically advantaged and disadvantaged, explicitly endorsing an ‘anti-subordination approach’ to discrimination which ‘allows for positive differential treatment’ (Harden, Reference Harden2021, p. 245).
There is no part of society that this genetic affirmative action program does not propose to reach. Harden asks us to envision how our ‘public spaces and working conditions and access to medical care and legal codes and social norms [can] be reimagined, such that the ‘arbitrariness of nature’ is not crystallized into an inflexible caste system?’ (Harden, Reference Harden2021, pp. 229–230 [emphasis added]). Elsewhere, she proposes to ‘document how our current educational systems and labor markets and financial markets reward people with certain kinds of bodies and brains and … reimagine how those systems could be transformed to the inclusion of everyone, regardless of their outcome in the genetic lottery’ (Harden, Reference Harden2021, p. 20 [emphasis added]). Thus, in every aspect of social and economic life, Harden recommends that society should be implementing discriminatory procedures to compensate for genetic disadvantages, because people are not responsible for their talents and abilities and do not deserve their successes or failures.
It is left unclear exactly how employers, educators, healthcare workers, and so on are supposed to go about the epistemologically daunting (i.e., impossible) task of calibrating rewards and punishments to compensate for the genetic and environmental disadvantages that each individual faces compared to all other members of society. It is also left unclear how this universal discrimination program would be enforced. Nevertheless, a necessary consequence of Harden’s proposed restructuring of society is that many of the freedoms that people currently enjoy must be restricted. A society that is ‘arranged’ to prevent our ‘labor markets and financial markets reward[ing] people with certain types of bodies and brains’ is one which prevents customers from freely buying the goods and services they value at a price they are willing to pay for them and one which prevents business owners from hiring and remunerating workers on the basis of their perceived ability to serve those customers. It is necessarily a paternalistic and coercive society.
For Harden these infringements on our liberty are justified because she views liberal, democratic, capitalist societies like the United States and Western Europe as positively dystopian. In an extraordinary reinterpretation of the politically loaded term, she describes such societies as ‘eugenic’, because they ‘entrench inequalities between people in their resources, freedoms, and welfare on the basis of a morally arbitrary distribution of genetic variants’ (Harden, Reference Harden2021, p. 20). For Harden, it follows that to be ‘anti-eugenic’ demands that we be anticapitalist and antimeritocratic.Footnote 72
Harden does not linger on the illiberal implications of her diminished conception of personal responsibility in The Genetic Lottery, but there are important clues that coercion by central planners is required. One clue is her repeated injunctions that we must ‘arrange’, ‘structure’, or ‘organize’ society along egalitarian lines.Footnote 73 Another is that Harden occasionally acknowledges that these efforts to rearrange society might be stubbornly resisted, twice enlisting the phrase ‘the problem to be fixed is society’s recalcitrant unwillingness to arrange itself’ (Harden, Reference Harden2021, p. 229 [emphasis added]).
10.5 Dostoyevsky’s Warning
The idea that ordinary people are not fully responsible for themselves and must therefore be controlled has a long and troubled history. As secular, scientific explanations for human behavior swept through the intellectual elites of 19th century Europe, they fueled a desire to tear down the existing social order and remake it according to ‘scientific’ principles. One of the most astute documenters of these intellectual currents was the Russian novelist Fyodor Dostoyevsky. Dostoyevsky saw early on how the spread of scientific materialism was leading to an assault on free will and fostering an appetite for the central control of society along rational and utopian lines. In Notes from the Underground he writes:
[Y]ou say that then science itself will teach man … that in actual fact he possesses neither will nor whims and never did have them and that he is nothing more than a sort of piano key or organ stop;Footnote 74 and, what is more, that there do exist in this world the laws of nature, so that whatever he does is not of his own volition at all, but exists according to the laws of nature. Consequently, these laws of nature need only to be revealed and man will no longer be responsible for his actions. … All human actions, it goes without saying, will then be calculated according to these laws, mathematically, like a logarithm table. … And then — it’s still you that maintain this — a new political economy will appear on the scene, ready-made and also calculated with mathematical precision. … Then the Crystal Palace will be erected. Then … the Golden Age will dawn. (Dostoyevsky, Reference Dostoyevsky2009, pp. 22–23 [emphasis added])
Expanding on this theme in Crime and Punishment, Dostoyevsky describes how his utopian contemporaries anticipate ‘a social system which, having emanated from some mathematical head, will at once re-organize the whole of mankind’ (Dostoyevsky, Reference Dostoyevsky2003, p. 304). In this rationally planned society, they argue, ‘crime would simply disappear’, because crime is ‘all down to being “a prey to one’s surroundings”’ and is ‘a protest against the craziness of the [existing] social system’ (Dostoyevsky, Reference Dostoyevsky2003, p. 304). This, again, is the same utopian logic that Harden enlists when she paints criminals as victims of genetic and environmental circumstances and argues that ‘People are not the problem to be fixed. The problem to be fixed is society’s recalcitrant unwillingness to arrange itself in a way that allows them to participate’ (Harden, Reference Harden2021, p. 229).
For Dostoyevsky, the rationally organized, perfect society envisioned by contemporary intellectuals — what he called ‘the Crystal Palace’ — was, in fact, an iron cage that risked robbing humanity of its political freedom and everything that was most preciously irrational about it. Dostoyevsky even foresaw how these utopian political fantasies could lead to tyranny and genocide.
In his novel The Devils, a character named Shigalyov presents his manifesto for a ‘system of world organization’ that would achieve ‘paradise on earth’ but reports with dismay that he reaches conclusions that directly contradict his initial premises: ‘Starting from unlimited freedom I arrive at unlimited despotism’ (Dostoyevsky, Reference Dostoyevsky1971, p. 404). To achieve the perfect society, Shigalyov proposes ‘as a final solution … to divide humanity into two unequal parts’ with ‘One tenth … to be granted … unrestricted powers over the remaining nine tenths’ (Dostoyevsky, Reference Dostoyevsky1971, p. 405) applying the paternalistic logic of selective incompatibilism described above. When another revolutionary proposes that a better solution might be to ‘take these nine-tenths of humanity … and blow them up’, Shigalyov agrees with him (Dostoyevsky, Reference Dostoyevsky1971, p. 406).
Later, when conversation turns to the question of whether persuasion and incremental change or violent revolution offer the better means of ushering in a new, socially just society, the leader of the group declares that ‘the second solution … the rapid method of cutting off a hundred million heads’ should be preferred on the basis of a tendentious, utilitarian calculus that the current unjust political system ‘will in a hundred or so years devour not a hundred but five hundred million heads’ (Dostoyevsky, Reference Dostoyevsky1971, pp. 408–409).
Dostoyevsky’s caricatures of the radical political ideas that were fashionable among his intellectual contemporaries in the late 19th century proved grimly prophetic of the totalitarian regimes that were to emerge in the following century, identifying the twisted moral logic that could produce ‘slave camps under the name of freedom [and] massacres justified by philanthropy’ (Camus, Reference Camus2013, p. 12).Footnote 75 The fact that Dostoyevsky accurately forewarned that incompatibilist beliefs could lead to totalitarianism and mass atrocities suggest that it is these beliefs that pose the greater risk of causing ‘indirect’ social harms, not the research on genetic and environmental causes of human behavior that selective incompatibilists routinely seek to suppress. Indeed, attempts to control the kind of research that scientists can conduct on the basis of entirely subjective evaluations of the indirect social harms such research might produce, represents a form of scientific censorship that is entirely characteristic of authoritarian regimes.Footnote 76 It represents a selective incompatibilist conception of personal responsibility under which a small group of self-appointed, social guardians get to decide on society’s behalf the information everyone should be allowed to consume and the conclusions they should be allowed to reach.Footnote 77
For his own part, Dostoyevsky was unable to resolve the tensions between scientific materialism and free will in such a way that individual liberty and personal responsibility could be protected. He could only recommend a mystical retreat into the Russian Orthodox faith — a Kierkegaardian leap of faith beyond reason that ignored the direct challenges that scientific materialism presented to central tenets of Christian dogma (Kierkegaard, Reference Kierkegaard1985). However, as we have sought to document in this essay, a robust intellectual defense of free will that is consistent with scientific materialism has effectively been mounted by compatibilist philosophers. We have extensively referenced Daniel Dennett and Friedrich Hayek, but the philosophical foundations of modern compatibilism were already being laid by Thomas Hobbes (Reference Hobbes1656) and David Hume (Reference Hume1739) at the dawn of the Enlightenment when the intellectual foundations of scientific materialism were also being laid.
10.6 Conclusion
Today compatibilism commands broad support in academic philosophy (Bourget & Chalmers, Reference Bourget and Chalmers2023), but its influence is yet to reach the behavioral science community, where libertarian and hard incompatibilist perspectives on free will remain ascendant (Fischer, Reference Fischer2023; Hollander, Reference Hollander1973). In this essay, we have sought to highlight some of the weaknesses in the secular libertarian theory of free will put forward by Turkheimer and developed by Harden, arguing that it stakes out an untenable brand of selective determinism that we have called free-will-by-subtraction. It is untenable because it treats our incomplete knowledge of the causes of variation in human behavior as evidence that some of our behavior is uncaused. It is untenable because it treats our ignorance as a sign of freedom.
While the metaphysical libertarianism this outlook implies is consistent with many varieties of religious belief, it is not consistent with the naturalistic perspective that ordinarily governs scientific inquiry, which assumes that human behavior — like animal behavior and other natural phenomena — always has antecedent causes. By accepting the incompatibilist logic that causation infringes upon free will, this position represents an ineffective defense of human agency because it either demands a leap of faith that supernatural agent causation exists, or it collapses into full-blooded free will skepticism.
Against that view, we have sought to show how a compatibilist defense of free will can help remove the perceived threats to personal responsibility posed by both genetic and environmental predictors of human behavior: for example, by showing the concept of control is logically distinct from the concept of causation; by showing the concept of skill provides a bulwark against an over-extended concept of luck; and by showing the concept of personal responsibility is grounded in the recognition of a wide class of persons whose behavior can be positively influenced by the expectation of praise, blame, reward, and punishment and who are thereby said to deserve these responses to their behavior. Our aim, following Daniel Dennett, has been to ‘expose the misbegotten defensive edifices people have constructed’ against the perceived threats that determinism presents to cherished concepts like responsibility, merit, and desert and to ‘dismantle them, and replace them with better foundations for the things we hold dear’ (Dennett, Reference Dennett2004, p. xii).
However, even if we have failed to convince readers of the intellectual merits of compatibilism, we hope to have steered them towards hard incompatibilism as an alternative harbor safely past the treacherous waters of metaphysical (or epistemic) libertarianism. We note that genetic explanations for human behavioral differences pose little concern to either compatibilists or hard incompatibilists because both perspectives are reconciled with the comprehensive causation of human behavior. It is only selectively determinist (or selectively incompatibilist) perspectives that interpret evidence of genetic causation as a special threat to human agency — and these perspectives are equally threatened by environmental explanations for human behavior. Selective determinism thereby presents a serious obstacle to progress in the behavioral sciences. By highlighting the fatal inconsistencies in the theory of free-will-by-subtraction we hope to remove unnecessary philosophical and psychological barriers to behavior genetic research. More ambitiously, we hope to inoculate readers against a pervasive idea that threatens the social order by undermining the concept of personal responsibility and justifying authoritarian social policies.
11. Further Reading
We have quoted our main sources extensively throughout this essay, but for readers seeking to investigate these ideas further, the following sources are particularly recommended:
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Daniel Dennett’s Elbow Room was the first book-length treatment of his compatibilist philosophy of free will for a general readership. It is worth reading in full, but the passages of greatest relevance to this essay are his philosophical examination of luck (as contrasted with skill), which occurs on pages 94–100, and his discussion of the difference between causation and control, which occurs across pages 52–73 (Dennett, Reference Dennett1984). One of Dennett’s clearest treatments of the difference between causation and control takes place in a 30-minute interview on the Closer to Truth philosophy podcast (Kuhn & Dennett, Reference Kuhn and Dennett2021).
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Steven Pinker provides an elegant (semi-)compatibilist account of free will in Chapter 10 of The Blank Slate (Pinker, Reference Pinker2003) that is directly informed by Dennett’s Elbow Room. In addition, Chapter 19 contains an insightful discussion of the meaning of the three laws of behavioral genetics that implicitly challenges Turkheimer’s interpretation of them.
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Friedrich Hayek’s (semi-)compatibilist defense of personal responsibility and desert mainly takes place in Chapter 5 of The Constitution of Liberty where it is integrated into his broader philosophical defense of individual liberty and the rule of law.
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Michael S. Moore provides a useful catalogue of common errors in reasoning about free will and personal responsibility in his article ‘Stephen Morse and the Fundamental Psycho-Legal Error’ (M. S. Moore, Reference Moore2016). Among these, ‘epistemic libertarianism’ is briefly described as one of several forms of selective determinism that people sometimes succumb to. Moore also provides a helpful historical overview of how compatibilist arguments have evolved over time to address challenges posed by critics.
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Neven Sesardić’s discussion of the philosophical confusion involved in suggesting the nature-nurture debate has been resolved by the (obvious) fact that both genes and environments are necessary for the development of any organism takes place in Chapter 1 (‘The Nature-Nurture Debate: A Premature Burial?’) of Making Sense of Heritability (Sesardić, Reference Sesardić2005). His argument that heritability does, in fact, equate with genetic influence on a trait within the context of a specific population is provided in Chapter 5 (‘Genes and Malleability’).
Data availability
All data discussed in this piece are from publicly available studies.
Acknowledgments
I would like to thank Kathryn Asbury, James Lee, Tom McAdams, Stuart Ritchie, Neven Sesardić, Tara Singh, and Alexander Young for their helpful feedback on earlier versions of this essay. The arguments presented here are, however, my own and should not be taken to reflect their views.
Financial support
This work was generously funded by the Social, Genetic and Developmental Psychiatry Centre at King’s College London.
Competing interests
The author declares no competing interests.
Ethical statement
The research presented in this article is a theoretical discussion of existing behavioral genetic studies, with no new data collection or human subjects involved. The author has ensured proper attribution of all cited studies and complied with ethical guidelines for scholarly research. Ethical approval was not necessary for this work, as it does not involve primary research.
Open access
