William & Mary Law Review

Article Title



Imagine the frustration of Samuel Butler’s protagonist, Higgs, with the strange society he encounters in Erewhon:

"Was there nothing which I could say to make them feel that the constitution of a person’s body was a thing over which he or she had had at any rate no initial control whatever, while the mind was a perfectly different thing, and capable of being created anew and directed according to the pleasure of its possessor? Could I never bring them to see that while habits of mind and character were entirely independent of initial mental force and early education, the body was so much a creature of parentage and circumstances, that no punishment for ill-health should be ever tolerated save as a protection from contagion, and that even where punishment was inevitable it should be attended with compassion?"

The Erewhonians had it all wrong, backward actually: they would criminally prosecute someone for the physical illnesses manifested, such as consumption, but would never prosecute those who made bad, immoral choices. And it would not matter that your ill-health was the product of a genetic weakness or malformation:

"It is all very well for you to say that you came of unhealthy parents, and had a severe accident in your childhood which permanently undermined your constitution; excuses such as these are the ordinary refuge of the criminal; but they cannot for one moment be listened to by the ear of justice. I am not here to enter upon curious metaphysical questions as to the origin of this or that—questions to which there would be no end were their introduction once tolerated, and which would result in throwing the only guilt on the tissues of the primordial cell, or on the elementary gases."

Are the Erewhonians wrong? Are we? Or are we both wrong to imagine “fault” in the case of mechanical entities, like human agents? Higgs was certain that the Erewhonians failed to understand the nature of human agency, and we are compelled to wonder if they are right and it is we who are wrong.

That is the challenge to which contemporary neuroscientific insights expose accepted normative systems, similar to our legal system (and even our moral responsibility system). We think the Erewhonians were wrong to impose criminal responsibility on those who were the victims of illness. The consumptive is not at fault in any way that could make sense if our object is to reduce the suffering illness causes. Indeed, criminalizing disease would actually exacerbate the problems illness presents. The costs incurred by doing so would increase the burden that illness imposes on society and would undermine human thriving. But we are also sure that contemporary legal and moral systems are just as wrong as the Erewhonian system. Extant legal doctrine and practices (civil as well as criminal) actually undermine human thriving: they are not merely a distraction; they are an impediment.

Our normative systems conceive of law and morality as the Erewhonians understood physical disease—a product of sufficient choice to attach blame, fault, and concepts of desert. But on what basis do we draw the distinctions between physical and normative malady: Are not both just (generally) distinguishable manifestations of mechanical causes? If human agents are essentially mechanical entities, on what basis could we find a normative difference between, say, tuberculosis and selfishness or insufficient ability to feel compassion for others? In fact, if you are actually indifferent to the suffering of others, a typical psychopath, what could be the nonphysical cause of that indifference?

Butler was prescient, and his Erewhon demonstrates an understanding of human agency that is precocious, anticipating what would only be revealed at the dawn of the Age of Realization: “Man, he said, was a machinate mammal.” All we are is mechanism, and that conclusion is not undermined in the least by the fact that we do not yet understand all that there is to understand about the mechanism. While it may not be possible for us to predict the next instant even were we to know all there is to know about the past and current instants, that does not undermine a mechanical conception of human agency, or of the universe for that matter. It is enough that we understand that mechanics capture well enough what we are at the level that matters to human thriving and the law, so we do not even need to know very much about quantum mechanics (though we need to know some relativity to understand GPS). At the level of acuity the law requires, it is enough that we appreciate the mechanical nature of human agency, for that is the level at which we can appreciate the immorality of basing normative systems, such as law, on ephemeral noninstrumental theory.

Ours is an extreme position. Essentially, we are building on Francis Crick’s Astonishing Hypothesis and Bruce Waller’s arguments in Against Moral Responsibility. We are elaborating on Joshua Greene and Jonathan Cohen’s conclusion that “For the Law, Neuroscience Changes Nothing and Everything.” While we have reservations about what can be concluded about free will from Benjamin Libet’s science, we find much that makes good sense to us in Daniel Wegner’s and Leonard Mlodinow’s reservations about the substance of consciousness. Having located ourselves in the literature, starting with Butler, we explain what the law understands human agency to be and demonstrate why the law profoundly misunderstands matters.

Butler challenged us to understand the difference between disease and choice. Common wisdom (the irony is intentional) understands those two phenomena to be diametric opposites. As a normative matter, disease is foisted upon you, choice is your own creation, the product of an uncaused cause. But if there are no uncaused causes, if, that is, we are not divine (because only the divine is an uncaused cause in a mechanical universe), there is no such thing as “choice.” And without choice there can be no moral responsibility—no blame, no desert, no retribution, and no punishment (strictly construed). So, there is much at stake in understanding law’s dependence on the insubstantial choice fiction and the mechanics that reveal that choice is a fiction.

What we do in this Article is, first, demonstrate the law’s reliance on an inauthentic conception of human agency. We trace that fundamental misapprehension through the three primary areas of the law: contract, tort, and criminal law. In each area, the law reaches conclusions that actually undermine human thriving by relying on a misconception of what it means to be human. “Consent” does not mean what it needs to mean for the contract law to be coherent; “fault” is a distraction if the object of the tort law is, as it should be, to reduce the cost of accidents; and the criminal law, most obviously, fails if it is based, albeit obliquely, on conceptions of moral responsibility that lack a reality referent.

The second part of the Article demonstrates why and how there is no room for choice for uncaused causes in the human saga. Any decision or event you can imagine has premises that trace from the instant before the apparent choice and the time immemorial leading up to that choice. We can no more choose to do something unconstrained by the forces that formed the current moment, including us and our place in the current moment, than we could choose to be ten feet tall or be a member of a different species. We are the culmination of forces over which we have nothing but the most ostensible “control.” That control is wholly ostensible because it only seems to be real. Now we recognize that “seeming” is quite convincing; it is all we know, really. The illusion is convincing because it is adaptive; it is much of the story of our social evolution. Proof of that is your inability to even imagine that you do not have free will, that your consciousness does not reveal to you all you need to know to make free choices. You may be able, at some level, to conceive of yourself as a wholly determined creature, but you could not maintain that mental posture for very long. You would slip back into a sense of willingness.

While we assert that free will is a fiction and that choice is an illusion, we do not doubt that they are useful. Free will supports a moral responsibility system that has served our species well (enough) for quite some time. And it is helpful to be able to rely on the imposition of guilt and reward of praise to teach others (including one’s children, perhaps unwittingly) to behave in ways that will promote social success, social cohesion, and human thriving. Free will is helpful until it is not helpful. At some point, a point revealed in much of the extant law, conceptions of free will, conclusions premised on the reality of unfettered choice, will actually undermine human thriving, even though it might “feel good” in the instant.

This Article is neither optimistic nor pessimistic. It is realistic. We imagine that as the science matures, the law’s incoherence will be manifest, and so will the incoherence of many of the institutions that are founded on an inauthentic understanding of human agency. When neuroscience tells us, more and more eloquently, what it means to be human, we shall appreciate, more and more fully, that the law errs in its assumptions about human agency and errs in ways that not only frustrate, but undermine, law’s object. Just as witch trials seem absurd to us today, many of contemporary law’s dictates will seem barbaric in the not-too-distant future. Prosecute those addicted to controlled substances on account of their consumption of the controlled substance? Wouldn’t that be like punishing someone for having a disease? Are we in Erewhon? Or our own Nohwere?