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Stephen Morse on the Fundamental Psycho-Legal Error

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Abstract

Stephen Morse has long proclaimed there to be a “fundamental psycho-legal error” (FPLE) that is regularly made by legal and social/psychological/medical science academics alike. This is the error of thinking that causation of human choice by factors themselves outside the chooser’s control excuses that chooser from moral responsibility. In this paper, I examine Morse’s self-labelled “internalist” defense of his thesis that this is indeed an error, and finds such internalist defense incomplete; needed is the kind of externalist defense of Morse’s thesis that can only be provided by a worked-out compatibilist moral philosophy. The body of the paper outlines the kinds of compatibilisms that are plausible, contrasting them with two less plausible attempts to salvage responsibility in the face of an advancing neuroscientific determinism. These two less plausible rescue attempts, libertarianism and fictionalism, each seek to salvage responsibility even while not disavowing the FPLE.

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Notes

  1. Morse, “Culpability and Control,” University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1587–1660, at p. 1592.

  2. My own pressing of these three points began in Moore, “Causation and the Excuses,” California Law Review, Vol. 73 (1985), pp. 1091–1149, reprinted as chapter 13 of Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1996).

  3. Morse, “The Non-Problem of Free Will in Forensic Psychiatry and Psychology,” Behavioral Sciences and the Law, Vol. 25 (2007), pp. 203–220; Morse, “Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience,” Minnesota Journal of Law, Science, and Technology, Vol. 9 (2008), pp. 1–36, at pp. 3–13.

  4. Morse, “Culpability and Control,” p. 1592, 1612; “Determinism and the Death of Folk Psychology,” p. 19; “The Non-Problem of Free Will,” pp. 214, 216; “Lost in Translation? An Essay on Law and Neuroscience,” in Michael Freeman, ed., Law and Neuroscience, Vol. 13 (Oxford University Press, 2010), p. 534.

  5. Morse discusses the difference between internal versus external critiques of responsibility, in Morse “Genetics and Criminal Responsibility,” Trends in Cognitive Science, (2011), pp. 1–3, at p. 1; “The Non-Problem of Free Will,” p. 204; “Lost in Translation,” p. 536. Morse’s internal/external distinction, and Morse’s use of it to insulate our practices from external criticism, is examined in Derk Pereboom, “Free Will Skepticism and Criminal Punishment,” in Thomas Nadelhoffer, ed., The Future of Punishment (Oxford: Oxford University Press, 2013), pp. 49–78.

  6. Greene and Cohen are explicit about this in their response to Morse. See Greene and Cohen, “For the Law Neuroscience Changes Nothing and Everything,” reprinted in S. Zeki and O. Goodenough, eds., Law and the Brain (Oxford: Oxford University Press, 2006).

  7. Or, as Morse is fond of saying, nothing in our law of mens rea or the excuses requires a finding one way or the other on whether the accused’s will was free on a given occasion. Morse, “The Non-Problem of Free Will,” p. 203.

  8. Simon Blackburn, Spreading the Word (Oxford: Clarendon Press, 1984); Blackburn, Essays in Quasi-Realism (Oxford: Oxford University Press, 1993). I discuss Blackburn’s quasi-realism (and Jeremy Waldron’s quasi-skepticism) in Moore, “Moral Reality Revisited,” Michigan Law Review, Vol. 90 (1992), pp. 2424–2533, reprinted in Moore, Objectivity in Ethics and Law (Aldershott, UK: Ashgate, 2004). My label for Blackburn’s quasi-realism, one that Blackburn has adopted on occasion, is “queasy realism.”

  9. In “Moral Reality Revisited,” I press this “bleed-over” point against Blackburn’s attempt to insulate his work-week “realism” from his week-end projectivist skepticism. Similarly, in my, “The Interpretive Turn in Modern Theory: A Turn for the Worse?,” Stanford Law Review, Vol. 41 (1989), pp. 871–957, reprinted in Moore, Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000), pp. 335–423, at pp. 384–400, I examine and reject the attempt often made to insulate the clinical theory of psychoanalysis from the “external” criticisms of the philosophy of science. In “Metaphysics, Epistemology, and Legal Theory,” Southern California Law Review, Vol. 60 (1987), pp. 453–506, reprinted in Moore, Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000), pp. 283–293, I similarly reject the late Ronald Dworkin’s attempt to insulate his avowedly non-metaphysical moral realism from the external criticism or support of traditional meta-ethics.

  10. My characterization of this external argument as the “beach-head argument” began in Moore, “Causation and the Excuses,” California Law Review, Vol. 73 (1985), pp. 1091–1149, reprinted in Moore, Placing Blame, pp. 481–547, particularly at p. 546. My fellow compatibilist, Jay Wallace, came to call this the external skeptics, “generalization argument.” R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge, MA: Harvard University Press, 1994).

  11. The point was also made early on by external theorists such as the early, logical positivist compatibilists.

  12. E.g., Morse, “Lost in Translation,” p. 535; Morse, “The Non-Problem of Free Will,” p. 218.

  13. Morse, “Culpability and Control,” p. 1614.

  14. David Brooks, “Beyond the Brain,” New York Times, Op-Ed pages, June 17, 2013.

  15. Moore, “Responsible Choices, Desert-Based Legal Institutions, and the Challenges of Contemporary Neuroscience,” Social Philosophy and Policy, Vol. 29 (2012), pp. 233–279, at pp. 261–272.

  16. I seek to defuse the kind of epiphenomalist challenge to responsibility coming from contemporary neuroscience in Moore, “Libet’s Challenges to Responsible Agency,” in Walter Sinnott-Armstrong and Lynn Nadel, eds., Conscious Will and Responsibility (Oxford: Oxford University Press, 2010), pp. 207–234. Note that this epiphenomenalist challenge does not depend on determinism so long as it does not rely on the premise that a person can cause only if that person is uncaused in his causings.

  17. In Moore, “Libet’s Challenges to Responsible Agency,” I defend a limited kind of compatibilism even here.

  18. E.g., Patricia Churchland, Neurophilosophy: Toward a Unified Science of the Mind Brain (Cambridge, MA: MIT Press, 1986); Paul Churchland, “Eliminative Materialism and the Propositional Attitudes,” Journal of Philosophy, Vol. 78 (1981), pp. 67–90.

  19. This is the picture conjured up, for example, by Greene and Cohen in their “For the Law of Neuroscience Changes Nothing and Everything.” I seek to show how tricky it is to make reductionism into an enemy rather than a friend of responsibility, in Moore, “Responsible Choices,” pp. 258–261.

  20. Moore, “Responsible Choices,” pp. 254–258, 272–274. I assessed Freud’s version of this challenge long ago, in Moore, “Responsibility and the Unconscious,” Southern California Law Review, Vol. 53 (1980), pp. 1563–1663.

  21. Morse, “Neuroscience and the Future of Personhood and Responsibility,” in Jeffrey Rosen and Benjamin Wittles, eds., Constitution: Freedom and Technological Change (Washington, DC: Brookings Institution Press, 2011), pp. 113–129, at pp. 125–127.

  22. Moore, “Responsible Choices, Desert-Based Legal Institutions, and the Challenges of Contemporary Neuroscience.”

  23. See generally Kadri Vihvelin, “Arguments for Incompatibilism,” Stanford Encyclopedia of Philosophy, 2007 revision.

  24. This is the thesis of the Millian tradition about causation. See Moore, Causation and Responsibility: An Essay on Law, Morals, and Metaphysics (Oxford: Oxford University Press, 2009), chapter 19.

  25. See e.g., Robert Kane, The Significance of Free Will (Oxford: Oxford University Press, 1995).

  26. As famously argued by Roderick Chisholm and Richard Taylor. See, e.g., Chisholm, “Human Freedom and the Self,” Lindley Lecture University of Kansas, 1964, reprinted in D. Pereboom, ed., Free Will (Indianapolis: Hackett Pub., 1997);Taylor, Action and Purpose (Englewood Cliffs, NJ: Prentice-Hall, 1966).

  27. Gary Watson, “Free Agency,” Journal of Philosophy, Vol. 72 (1975), pp. 205–220.

  28. See, e.g., Derk Pereboom, Living Without Free Will (Cambridge: Cambridge University Press, 2001); Pereboom, “Free Will Skepticism and Criminal Punishment,” at pp. 58–60.

  29. I question arguments of this form in Moore, “Thomson’s Preliminaries About Causation and Rights,” Chicago-Kent Law Review, Vol. 63 (1987), pp. 427–521, reprinted in Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997), at p. 352.

  30. Some source-incompatibilists such as Robert Kane seek to ground their demand for an ultimate source in PAP. So construed, source-incompatibilism drops away as a challenge to responsibility independent of the incapacity to do otherwise challenge I examine in detail below.

  31. The name given to it in the seminal essay by Peter van Imwagen, An Essay on Free Will (Oxford: Oxford University Press, 1983). Van Imwagen’s versions of the argument simply assumes (as he recognizes) that the “could not have done otherwise” of PAP has only the incompatibilist reading that I dispute below.

  32. The locus classicus for charting this move from libertarianism to dualism remains Gilbert Ryle’s The Concept of Mind (London: Hutcheson, 1949).

  33. Try, for example, to make sense of one of the late Sir John Eccles’ mind/brain interface charts. John Eccles, “The Initiation of Voluntary Motor Movements by the Supplementary Motor Area,” Archives of Psychiatry and Neurological Sciences, Vol. 231 (1982), pp. 423–441; Eccles and Popper, How the Self Controls Its Brain (Berlin: Springer, 1994).

  34. Of which some libertarians are well aware. See Robert Kane, The Significance of Free Will (Oxford: Oxford University Press, 1996).

  35. Some of these examples are culled from Joel Feinberg, “Causing Voluntary Actions,” in Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 157–158.

  36. Or so I argue, Michael S. Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984), chapter 6.

  37. Peter Strawson, “Freedom and Resentment,” Proceedings of the British Academy, Vol. 48 (1962), pp. 1–25, reprinted in Gary Watson, ed., Free Will (New York: Oxford University Press, 1982).

  38. For explicit examples of such patchy libertarianism, see Sheldon Glueck, Law and Psychiatry: Cold War or Entente Cordiale? (Baltimore: John Hopkins Press, 1962), pp. 12–13 (a feeble-minded person’s acts are 10 % “free-choosing” and 90 % predetermined, a psychopath’s acts are 30–45 % “free-choice,” “the balance rigidly controlled,” and the average, responsible adult has a “free-choosing capacity” of 50–65 %, “leaving a 50 to 35 percent quantum of solid-line dominance.”); Norval Morris, Madness and the Criminal Law (Chicago: University of Chicago Press, 1982), p. 61 (there are “degrees of freedom of choice on a continuum…”).

  39. Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (Oxford: Oxford University Press, 2009), pp. 71–73, 102, 104–105, 118–123, 275–279, 299–302, 396–399, 477–478, 508, 543–544. I discuss scalarity of causation further in Moore, “Moore’s Truths About Causation and Responsibility,” Criminal Law and Philosophy, Vol. 6, (2012), pp. 445–462, and in Moore, “Further Thoughts on Causation Prompted by Fifteen Critics,” in B. Kahmen and M. Stepanians, eds., Causation and Responsibiloity: Critical Essays (Berlin: de Gruyter, 2013), pp. 333–416.

  40. Strawson, “Freedom and Resentment.”

  41. For an example, see Antony Flew, “Psychiatry, Law, and Responsibility,” Philosophical Quarterly, Vol. 35 (1985), pp. 425–432 (review of Moore Law and Psychiatry). Hart and Honore subscribe to such causal dualist views in the second edition of their book, Causation in the Law (2d edit, Oxford University Press, 1985).

  42. See Moore, Placing Blame, pp. 513–514.

  43. Paul Hollander, “Sociology, Selective Determinism, and the Rise of Expectations,” American Sociologist, Vol. 8 (1973), pp. 147–153. I owe this reference to Stephen Morse in a paper of his many years ago.

  44. Morse, “The Non-Problem of Free Will,” pp. 213, 217.

  45. Steven Pinker, “The Fear of Determinism,” in J. Baer, J. Kaufman, and R. Baumeister, eds., Are We Free? Psychology and Free Will (Oxford: Oxford University Press, 2008), 317.

  46. On “indirect,” or “two-step,” utilitarianism generally, see Larry Alexander, “Pursuing the Good—Indirectly,” Ethics, Vol. 95 (1985), pp. 315–332. Pinker’s is a trait or motive kind of indirect utilitarianism. So-called “trait” or “motive” utilitarianism (according to which we should adopt those traits that in the long run will maximize utility), is usually associated with Richard Brandt, “Towards a Credible Form of Utilitarianism,” in B. Brody, ed., Moral Rules and Particular Circumstances (Englewood Cliffs, NJ.: Prentice-Hall, 1970).

  47. As many besides Pinker have noticed. See, e.g., Greene and Cohen, “Neuroscience Changes Nothing”; see also Daniel Dennett, Elbow Room: The Varieties of Free Will Worth Wanting (Cambridge, MA: MIT Press, 1984), where in the last chapter Dennett unwittingly adds cheap compatibilism to the more genuine form of compatibilism expressed in the earlier chapters of his well-known compatibilist tract.

  48. Clemenceau’s celebrated simile was that military justice stands to justice as military music stands to music.

  49. Moore, Placing Blame, 155–58, 160–63.

  50. As Jack Smart, a trenchant but clear-headed act-utilitarian once put it, following a practice when it does not maximize utility to do so, is “blind rule-worship.” J.J.C. Smart, “Utilitarianism: For,” in J.J.C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973). David Lyons has classically shown that indirect utilitarianisms like Pinker’s collapse either into such blind rule-worship or into a direct (or “act”) utilitarianism. David Lyons, Forms and Limits of Utilitarianism (Oxford: Oxford University Press, 1965).

  51. Pinker, “Fear of Determinism,” 318.

  52. Ibid.

  53. Moore, Placing Blame, 101.

  54. Vaihinger, Die Philosophie des Als Ob (4th edit., 1920). The influence of Vaihinger in 1920 s and 1930 s German and American legal theory is described in Lon Fuller, Legal Fictions (Stanford: Stanford University Press, 1967), pp. 94–137.

  55. Franz Alexander and Hugo Staub, The Criminal, the Judge, and the Public: A Psychological Analysis (London: G. Allen and Unwin, 1931), pp. 72–73.

  56. Jerome Hall, General Principles of the Criminal Law, 1st edit, 1947, 2d edit. (Indianapolis: Bobbs-Merrill, 1960), p. 455.

  57. Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), pp. 74–75.

  58. Gilbert Ryle, The Concept of Mind, chapter 1.

  59. R. Abelson, Persons: A Study in Philosophical Psychology (New York: Macmillan, 1977), pp. 28–30. More contemporary examples of such linguistic dualism may be found in the idea of there being a “mereological fallacy” in reducing the mental states of whole persons to brainstates, in Bennett and Hacker, Philosophical Foundations of Neuroscience (Oxford: Blackwell 2003); and in the work of Dennis Patterson and Michael Pardo, “Neuroscience, Normativity, and Retributivism,” in Thomas Nadelhafer, ed., The Future of Punishment (Oxford: Oxford University Press, 2012); and Patterson and Pardo, “Philosophical Foundations of Law and Neuroscience,” Illinois Law Review, Vol. [2010], pp. 1211–1250. The reasoning to my conclusion that Bennett, Hacker, Patterson, and Pardo are linguistic dualists stems from the linguistic nature of their “mereological fallacy.” The fallacy is supposed to be the fallacy of attributing properties of the whole to a mere part of the whole, as in: “His brain intended p,” or “His supplementary motor area (SMA) did it.” The way to flush out the linguistic nature of this is by asking Hacker, et al., what other parts of the person need to be added to the brain or to the SMA, to get a proper subject; if the answer is the only one they give—“only the whole person”—that shows that they sense a category difference to exist between persons and (any and all) of their physical parts.

  60. Charles Landesman, “The New Dualism in the Philosophy of Mind,” Review of Metaphysics, Vol. 191 (1965), pp. 329–345.

  61. David Brink, in his Architecture of Responsibility, forthcoming, discusses Strawson in this meta-ethically skeptical posture.

  62. Michael S. Moore, “Moral Reality,” and “Moral Reality Revisited,” in Moore, Objectivity in Law and Ethics (Aldershot, UK: Ashgate Press, 2004).

  63. D.C. Dennett, “Mechanisms and Responsibility,” in Ted Henderich, ed., Essays on Freedom and Action (London: Routledge, 1973).

  64. As in Michael McKenna, “Compatibilism,” Stanford Encyclopedia of Philosophy, 2009 revision, pp. 25–27. I would have thought that the later Dennett (of Elbow Room and Freedom Evolves) would have had no truck with this interpretation of his views. However, at the Tufts University Philosophy Department Colloquium on Free Will, held in the Fall of 2012 at which Dennett and I each gave papers, Dennett’s expressed sympathy for the explicitly “as if” fictionalism of Herbert Packer, gives me pause.

  65. See, e.g., Mark Kelman, “Interpretive Construction in the Substantive Criminal Law,” Stanford Law Review, Vol. 33 (1981), pp. 591–673.

  66. The density of the literature on free will in contemporary philosophy is one of the motivations Morse avows for seeking to stay “internal” to our practices of responsibility ascription. Morse finds the diverging interpretations of PAP, for example, to lead one to “endless disputes” (“The Non-Problem of Free Will,” p. 213 n. 32); he more generally finds the issues surrounding compatibilism to be “ferociously complex” (id., p. 219) and urges that such issues will “never be solved to everyone’s satisfaction” (id., p. 220). See also Morse, “Determinism and the Death of Folk Psychology,” p. 15; Morse, “Genetics and Criminal Responsibility,” p. 2.

  67. This, because the debate between source-incompatibilists and source-compatibilists I find both murky and (usually) question-begging. The question whether persons must be the ultimate source of their actions is just the question of whether causation excuses, clouded over with some murky thoughts about agency, choice, and personhood.

  68. Isaiah Berlin, “Two Concepts of Liberty,” in his Four Essays on Liberty (Oxford: Oxford University Press, 1969).

  69. As Kane speculates in his The Significance of Free Will.

  70. As in e.g., Moritz Schlick, “When Is a Man Responsible?,” in his Problems of Ethics D. Rynin, trans. (Englewood Cliffs, N.J.: Prentice-Hall, 1939), and in A.J. Ayer, “Freedom and Necessity,” reprinted in Ayer, Philosophical Essays (London: Macmillan, 1954), pp. 271–284.

  71. Austin: “It takes more to excuse stepping on a baby than stepping on a snail.” Austin, “A Plea for Excuses,” Proceedings of the Aristotelian Society, Vol. 57 (1956), pp. 1–30.

  72. Actually this is an inference from the common law restrictions on: (1) what evil can be excused by duress (no taking of human life); (2) what evils need to be threatened to avail oneself of an excuse (only death or grievous bodily harm); and (3) the degree of necessity of doing the former in order to avert the latter (cast in terms of immediacy).

  73. Moore, “Choice, Character, and Excuse,” Social Philosophy and Policy, Vol. 7 (1990), pp. 29–58, reprinted in Moore, Placing Blame: A General Theory of the Criminal Law (Oxford University Press, 1996). Antony Duff criticized my “diminished opportunity” version of excuse in his “Choice, Character, and Criminal Liability,” Law and Philosophy, Vol. 12 (1993), pp. 345–383, and I concede the point in Moore, “The Neuroscience of Volitional Incapacity,” in Dennis Patterson, ed., Law and Neuroscience (Oxford: Oxford University Press, 2015).

  74. Morse, “Culpability and Control,” p. 1614.

  75. Morse generally attempts to sidestep the difficult “could have done otherwise” question by urging that most cases of compulsion are cases where irrationality by itself will excuse. See Morse, “Culpability and Control,” pp. 1619, 1622, 1624–1634; Morse, “Uncontrollable People and Irrational Urges,” Virginia Law Review, Vol. 88 (2002), pp. 1025–1078; Morse, “Rationality and Responsibility,” Southern California Law Review, Vol. 74 (2000), pp. 251–268; Morse, “Neuroscience and the Future of Personhood and Responsibility,” pp. 117–118; Morse, “The Non-Problem of Free Will,” p. 206; Morse, “Against Control Tests for Criminal Responsibility,” in Paul Robinson, Stephen Garvey, and Kimberly Ferzan, eds., Criminal Law Conversations (Oxford: Oxford University Press, 2009), pp. 449–459.

  76. David Hume, “Of Liberty and Necessity,” Enquiry Concerning Human Understanding (1748), 'VIII.

  77. I again put aside the arguments of so-called “source-incompatibilists,” who think that there is something unique about persons (or something unique about the agential causings of persons, or about the choices of persons) such that persons can cause things to happen only if persons are themselves uncaused in their causings.

  78. G.E. Moore, Ethics (Cambridge: Cambridge University Press, 1912), pp. 84–95.

  79. G.E. Moore, Ethics, pp. 84–95.

  80. Roderich Chisholm, “Human Freedom and the Self,” in Gary Watson, ed., Free Will (Oxford: Oxford University Press, 1982); Chisholm, “He Could Have Done Otherwise,” Journal of Philosophy, Vol. 4 (1967), pp. 409–417. The blond dog variation of Chisholm is from McKenna, “Compatibilism,” pp. 13–14.

  81. An argument I and Heidi Hurd deploy against some of the critics of our views on the culpability of negligence. See Michael S. Moore and Heidi Hurd, “Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence,” Criminal Law and Philosophy, Vol. 5 (2011), pp. 147–198, at pp. 162–163.

  82. Donald Davidson, “Freedom to Act,” in Ted Honderich, ed., Essays on Freedom of Action (London: Routledge, 1973, pp. 139–156, reprinted in Davidson’s Essays on Actions and Events (Oxford: Oxford University Press, 1980). I have taken a free hand in reworking Davidson’s actual, stated conditional, which was: “If A has desires and beliefs that rationalize X,…then A does X.” (Id., 148). Note that my consequent is different: “A would choose to do X,” not, “A does X;” and my antecedent is different: “wanted to do so badly enough” is different than, “has beliefs and desires that rationalize.” Still, as to the latter, Davidson does recognize the need for quantifying desire in the antecedent (“he wanted above all to kill the future tyrant” (Id., p. 150)), and as to the former, Davidson was motivated to his conditional by his desire to produce a conditional answering Chisholm’s worries.

  83. For discussion, see Moore, “The Neuroscience of Volitional Incapacity.”

  84. Austin, “A Plea for Excuses.”

  85. I so argue in Moore, “Choice, Character, and Excuse.”

  86. Philip Pettit, “The Capacity to Have Done Otherwise: An Agent-Centered View,” in Peter Cane and John Gardner, eds., Relating to Responsibility (Oxford: Hart Publishing, 2001), at p. 25.

  87. Moore, “The Neuroscience of Volitional Incapacity.”

  88. Our behavior on similar occasions evidences our capacity on a particular occasion, but it does not constitute such particular capacity. Such evidence is more constitutive of our general capacities. See Michael Smith, “Responsibility and Self-Control,” in Peter Cane and John Gardner, eds., Relating to Responsibility (Oxford: Hart Publishing, 2001), p. 17.

  89. Moore, “Causation and the Excuses,” California Law Review, Vol. 73 (1985), pp. 1091–1149, reprinted in Moore, Placing Blame, p. 541 n. 126. Dan Dennett tells me that he too once succumbed to Austin’s influence on this point. But no longer. See Dennett, Freedom Evolves (New York: Penguin, 2003), pp. 63–77.

  90. J.L. Austin, “Ifs and Cans,” Proceedings of the British Academy, Vol. 42 (1961), pp. 109–132, reprinted in J.O. Urmson and G. Warnock, eds., Philosophical Papers (Oxford: Clarendon Press, 1961), p. 166.

  91. Id.

  92. Note the limited purport of this argument against Austin: it is only to show that “cans are constitutionally iffy,” as Austin put the thesis he wished to deny; it is not to argue that Moore’s kind of conditional is always adequate to unpack all abilities, including skills like those involved in golf. The contextualism about abilities discussed above is alone enough to deny the latter conclusion.

  93. Such as the late George Molnar and Stephen Mumford. See George Melnar, Powers: A Study in Metaphysics, Stephen Mumford, editor (Oxford: Oxford University Press, 2003). Mumford contrasts his own powers primitivism to my views on the metaphysics of causation, in Mumford, “Causes for Laws,” Jurisprudence, Vol. 4 (2013), pp.109–114. For a selection of views, see A. Marmodoro, The Metaphysics of Powers (New York: Routledge, 2010).

  94. The classic papers on finkish dispositions are Martin, “Dispositions and Conditionals,” Philosophical Quarterly, Vol. 44 (1994), pp. 1–8; David Lewis, “Finkish Dispositions,” Philosophical Quarterly, Vol. 47 (1997), pp. 143–158.

  95. See the discussion of Frankfurt in subsection E below.

  96. Lewis, “Finkish Dispositions;” Kadri Vihvelin, “Free Will Demystified: A Dispositional Account,” Philosophical Topics, Vol. 32 (2004), pp. 427–450; Vihvelin, Causes, Laws, and Free Will, pp. 181–187.

  97. This analysis by Lewis is hardly the end of the story, for one also has to worry about masked abilities as well as “finked” abilities. Mark Johnston, “How to Speak of the Colors,” Philosophical Studies, Vol. 68 (1992), pp. 221–263. That masked abilities (where the ability is never lost but nonetheless its behavioral manifestations are masked (think of glass packed with styrofoam)) are no greater problem. See Vihvelin, Causes, Laws and Free Will, p. 184.

  98. John Maier, “Abilities,” Stanford Encyclopedia of Philosophy, 2010 revision, p. 9.

  99. For an introduction, see Moore, Causation and Responsibility, chapter 16.

  100. See id.

  101. Todd Hare, Colin Camerer, Antonio Rangel, “Self-Control in Decision-Making Involves Modulation of the vmPFC Valuation System,” Science, Vol. 324 (2009), pp. 646–648.

  102. Meghan Griffith, Free Will: The Basics (London: Routledge, 2013), p. 41.

  103. Joseph Campbell, Free Will (Cambridge: Polity Press, 2011), p. 88.

  104. McKenna, “Compatibilism,” p. 13.

  105. See text at nn. 80–81 supra.

  106. See discussion, text at n. 82 supra.

  107. Moore, “The Neuroscience of Volitional Incapacity.”

  108. Keith Lehrer, “Cans Without Ifs,” Analysis, Vol. 29 (1968), pp. 29–32, at pp. 31–32.

  109. Contrast John Maier, “Abilities,” Stanford Encyclopedia of Philosophy, 2010 revision, at p. 13:

    It seems true that if Lehrer has desires and beliefs that rationalized that action under the description “eating a red candy”…he would eat a red candy. But the trouble is precisely that, in virtue of his psychological disability, he is incapable of having this desire and so cannot perform this action intentionally.

    Note that Maier like many others assumes that the desire in the antecedent of PAW has to be a desire for the candy as a desirable object to eat or touch, rather than as I construe PAW, which allows the desire (for the red candy) to be a purely instrumental desire for an admittedly distasteful means needed to something truly desired as an end.

  110. Id., p. 31.

  111. Vihvelin, “Free Will Demystified.” Davidson gives this analysis of Lehrer in Davidson’s “Freedom to Act,” p. 144.

  112. E.g., McKenna, “Compatibilism,” p. 11.

  113. Moore, “The Neuroscience of Volitional Incapacity.”

  114. McKenna, Compatibilism, p. 11.

  115. Stephen Morse, “Crazy Behavior, Morals, and Science,” An Analysis of Mental Health Law,” Southern California Law Review, Vol. 51 (1978), pp. 527–654; Moore, “Mental Illness and Responsibility,” Bulletin of the Menninger Clinic, Vol. 39 (1975), pp. 308–328.

  116. See citations, note 75, supra.

  117. See Moore, “The Neuroscience of Volitional Incapacity.”

  118. A point also noticed by Michael Corrado, “Morse on Control Tests,” in Robinson, et al., Criminal Law Conversations, pp. 461–463, at p. 462 (“the capacity to be guided by reasons is a control notion”).

  119. Vihvelin, “Free Will Demystified.”

  120. Smith, “Responsibility and Self-Control,” p. 16.

  121. Smith, “Rational Capacities,” in his Ethics and the A Priori (Cambridge: Cambridge University Press, 2004).

  122. Here Smith resembles Keith Lehrer, who having rejected the classical conditionalist analysis of ability, nonetheless supplied his own, holistic, possible world account. See Lehrer, “‘Can’ in Theory and Practice: A Possible World Analysis,” in M. Brand and J. Walton, eds., Action Theory (Dordrecht, Netherlands: D. Reidel, 1976), pp. 241–270. Kadri Vihvelin, in contrast to both Smith and Lehrer, is much closer to the analysis proposed here. This, because at least “for a highly interesting subset” of abilities to act otherwise, she is “prepared to go out on a limb” and suggest “trying to do action A” as the antecedent of the counterfactual whose consequent describes a disposition to do A (Causes, Laws, and Free Will, p. 175); and because, although she does not distinguish PAA from PAW as such, she recognizes that “for any ability to do something X…there are two important questions,” one asking after the ability to do X and the other asking after the ability to try to do X (id., pp. 208–209).

  123. Smith, “Rational Capacities.”

  124. Harry Frankfurt, “Alternative Possibilities and Moral Responsibility,” Journal of Philosophy, Vol. 66 (1969), pp. 829–839. I have altered Frankfurt’s example a bit. Frankfurt conceived of Frankfurt cases before the finkish disposition analysis was prevalent. For reconstruction of some of such Frankfurt cases as being nonetheless finkish in nature, see Vihvalin, Causes, Laws, and Free Will, p. 191 (“Frankfurt’s argument fails because Black is a fink (a super-fink) or a mask (a super-mask)”) See also Maier, “Abilities,” pp. 21–22.

  125. Daniel Dennett, Elbow Room (Oxford: Oxford University Press, 1984), p. 133.

  126. Morse too has long relied on Luther here. Morse, “Culpability and Control,” p. 1623.

  127. Frankfurt, “Freedom of the Will and the Concept of a Person,” Journal of Philosophy, Vol. 68 (1971), pp. 5–20; Frankfurt, “Identification and Wholeheartedness,” in F. Schoeman, ed., Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987).

  128. J.M. Fischer and Mark Ravizza, Responsibility and Control: An Essay on Moral Responsibility (Cambridge: Cambridge University Press, 1998).

  129. R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge, MA: Harvard University Press, 1994).

Acknowledgments

The author would like to thank all those who commented on the paper on the occasions at which it was presented in draft. Special thanks to Kadri Vihvelin for her separate, written comments.

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    Michael S. Moore

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Moore, M.S. Stephen Morse on the Fundamental Psycho-Legal Error. Criminal Law, Philosophy 10, 45–89 (2016). https://doi.org/10.1007/s11572-014-9299-0

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