Hodgson's choice

David Hodgson, an Australian (New South Wales) Supreme Court justice, has published an article on free will and responsibility in the July 5th 2007 Times Literary Supplement (TLS) titled "Partly Free." Although he concedes the explanatory force of current physicalist accounts of human behavior, he opts for a kind of non-naturalistic mentalism:

I believe there are stronger reasons for holding that, while our conscious experiences do correspond with physical processes, these experiences can themselves have effects beyond those explicable in terms of physical processes and laws of nature, and that this enables us to have free will and to be responsible for our actions.

He takes this line because he believes that determinism destroys moral and criminal responsibility, a belief that UPenn law professor Stephen Morse calls the “fundamental psycholegal error.” Hodgson also thinks we need retributive justice as a way of limiting punishment to only what people deserve, otherwise we risk over-punishing. Further, retributive justice can only rest on a sort of agent causation in which a deterministic, physicalist story cannot be traced from antecedent conditions, thence into and including the agent, and thence to the act. Fortunately such agent causation exists, he argues, so all is well. We are causal exceptions to natural laws and thus can take a full measure of what he sees as a metaphysically real responsibility, that which justifies retribution.

But we needn't resort to human causal exceptionalism to remain responsible agents, nor do we need retribution. First, we don't need the concept of retributive desert to limit punishment. A central value in the West is personal liberty and autonomy, and it is this that limits punishment so that it doesn't become draconian. The criminal justice goals of deterrence and public safety are counterbalanced by our commitment to individual freedom such that legal sanctions remain proportionate to the crime.

Second, if we are naturalists there's no basis for retribution in Hodgson's agent causation since the requisite sort of undetermined, self-caused agents don't exist, which is to say we don't have contra-causal free will. Nor are there any convincing compatibilist grounds (that is, grounds compatible with not having contra-causal free will) for retribution; see for instance my critiques of Morse, Moore, Bailey, Hoffman and Goldsmith, and Hill. But since we don't need retribution to limit punishment, this isn't a problem.

Third, as natural agents, those fully subject to cause and effect, we remain moral agents in that we are responsive to the prospect of moral evaluation, rewards and sanctions. We don't need to be causal exceptions to the natural order to be held responsible. Indeed, if we were such exceptions, our responsibility practices, such as the threat of sanctions, wouldn't work. Our freely willing core wouldn't be responsive to moral evaluation - it would just do what it darn well pleased. So morality, minus its retributive component, survives without contra-causal agency. This has considerable implications for criminal justice.

Most of Hodgson's ideas in "Partly Free" appear in an earlier article, "A plain person's free will," which he wrote for the Journal of Consciousness Studies, critiqued here. He can only maintain his non-naturalistic notion of free will by dint of some very tenuous and contentious claims having to do with quantum mechanics, consciousness, rationality, evolution and human agency. Such implausibilities (by my lights) wouldn't be necessary but for his antecedent supposition that we need to somehow evade cause and effect to be moral agents and to keep punishment humanely proportionate. But there are far simpler conceptions of moral agency and humane criminal justice to be had within science-based naturalism, a worldview that accepts that human beings are fully included in the natural, physical order of things.