Apr
07

The Illusion of Freedom?

Soren Kierkegaard got it at least half right: "Life can only be understood backwards; but it must be lived forwards." But does it follow from this that our sense of freedom is a mere illusion? Perhaps.

Sam Harris thinks free will as an illusion. It is an error, he says, to "attribute agency" to the action of others and even to our own acts. "There is no question that our attribution of agency can be gravely in error. I am arguing that it always is," he writes. "[T]he idea that we, as conscious beings, are deeply responsible for the character of our mental lives and subsequent behavior is simply impossible to map onto reality," he continues. He makes his case in a splendid little book entitled, appropriately enough, Free Will, (Free Press, New York, 2012).

I am not as persuaded.

I don’t doubt the scientific evidence. Neurological activity, that is, activity rooted in our hardwiring, reflects that nanoseconds before something comes to mind, a neural storm explaining and accompanying any action and thought has already gathered. In other words, matter precedes the phenomenon of the mind. We don’t summon ideas; ideas happen to us, or so the argument goes.

On this view, our sense of freedom may be an illusion. But, I suspect, like so many other illusions, the illusion of free will seems to be necessary, at least for the time being.. The next scientific revolution, the next intellectual frontier, will consist of reframing, or understanding, the relationship of mind and body. If freedom is an illusion, just how are we supposed to comprehend the truth about how we live? Harris doesn’t really have the answer.

Of course, Harris is not arguing that we don’t have choices to make in the lives we live. He is not a fatalist. "To declare my `freedom’ is tantamount to saying, `I don’t know why I did it, but it’s the sort of thing I tend to do, and I don’t mind doing it.’" Or, as he also puts it: "Yes, you are free to do what you want now. But where did your desires come from?" Finally, "You are not controlling the storm, and you are not lost in it. You are the storm."

I can’t help wondering whether there is an element of narrative license at work here. I have agonized over choices in the past. The most significant ones -- a divorce, a career path -- seemed unbearably difficult at the time the choices were made. I can see reasons, decades later, for how these chapters in my life turned out. But I am aware that rendering these choices in terms of reasons is the creation of a narrative arc satisfying very present narrative needs. How do I explain a life lived defending folks who find themselves on the wrong side of the law? Why it is because I grew up amid chaos and misfits, and now insist that every voice is heard. There is something almost too simplistic and formulaic about this explanation. I am aware that it justifies the life I live now; I have no idea whether it is "true" in the sense of providing an actual account of causation. It seems just as apt to say that the narrative drive is in our genes, and that the concept of freedom is a necessary theme.

Criminal defense lawyers know a lot about this giving of reasons. Our clients come to us accused of often horrible events. We recreate the past to exonerate, justify, excuse or, at the very least, explain what has happened – we cast a broad net to show that no one is simply the sum of their worst moments. The prosecution, typically, focuses on the moment of choice, and argues that a defendant must be held accountable for the horrible act he or she was free to avoid. I often get the sense that prosecution and defense are talking past one another.

Harris’s book offers a bridge that both the defense and prosecution can walk. There may be no morally perfect world, in which agents are "free" to do whatsoever they will. We’re all caught in a web of desires, instincts, predispositions that are a function of evolution, genome, early childhood, social pressures, and the felt necessities of the chaos that becomes out biography. A man of dangerous dispositions may need to be isolated to protect the rest of us, but that doesn’t make him a moral monstrosity.

Moral condemnation is a quick fix for the ignorant, Harris suggests. What’s more, isolating the choice a defendant makes, and punishing him for that choice, may work gratuitous cruelty. As Harris puts it: "Our system of justice should reflect an understanding that any of us could have been dealt a very different hand in life. In fact, it seems immoral not to recognize just how much luck is involved in morality itself." Again: "The urge for retribution depends upon our not seeing the underlying causes of human behavior."

Criminal jurisprudence is still steeped in Victorian fantasies about agency. Harris sheds much needed light. That we still see so little about how we come to do the things that define us is a reflection of how much more work needs to be done in this area.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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