Ruminations On Post-Modern Law

"..the newborn brings into existence the anlagen of various cognitive systems related to 'bps' survival which get modified in expression, not in substantive content or meaning, with subsequent social experience."


     Having previously considered the primacy of bio-psycho-social ('bps') human survival one may properly ask if there may exist a collective free will controlling the decision-making process in society if individual causal selection is merely an un-existent (determinist) or an arbitrary and unsystematic (non-determinist) affair? Are all choices made for us based on our own unconscious deliberations as to their necessity, sufficiency or any other normalcy criteria, all predicated on a survival imperative? We will briefly examine this issue before addressing the main issue of social responsibility which is predicated, as should be, on the individual autonomy of the will.

     In previous articles we have argued that 'free will' in humans seems to be limited to the control of the last relay switch that will trigger a chain of reactions that we hope will result in adaptive responses. We have described how the details involved in the response strategy may all have been worked out at unconscious and subconscious levels leaving the individual with just a veto power or not. This level of decision-making control is the equivalent of the "proximate cause" we describe in legal theory where the punishable act must be predicted from the specific causal factor(s) the imputed must be in ‘conscious’ control of. The explanatory gap there exists between the many causal factors and the outcome is mind-boggling and almost as complex as in the attribution given the brain for being causally efficient in producing consciousness. The uncertainties present tend to limit the extent of legal responsibility in criminal, civil and public law. This situation is present when a distal (remote) link in a chain of causation initiated by the accused in fact produced the harmful outcome but such link couldn't have been foreseen by the actor. More often an intervening or superseding cause interrupts the causal link between actor and outcome. The intervening factor is considered a cause in its own right where the agency had no control over. Attribution of responsibility is avoided when the harmful outcome is explained by an unpredictable event or conjunction of events unlikely to materialize under the pertinent circumstances. Explanatory criteria does not always lead to an attribution, especially when probabilities of interventory events have to be taken into account. Objective probability is here contrasted with subjective foresee ability. Responsibility for a harmful outcome does not attach when the natural probability of occurrence of such event was not increased by the agency in question. The harm must be within the risk created by the agency.

     One may assume that the law, when engaged in explanatory inquiries, adopts different criteria of causality from those employed outside the law in the physical and social sciences and in quotidian life. There may exist significant differences between the evidentiary probative value between, e.g., what would ‘medically’ be treated as the cause of a disease and what counts ‘in law’ as its cause. Thus attributive uses of cause in assigning responsibility must take into account the fact that the law has to attend simultaneously both considerations of terms involving causal criteria as well as to the purposes of legal rules and their moral status. There won’t be a generally agreed upon theory of causation, a field very much currently debated.


     If natural events are determined by antecedent conditions together with the laws of nature, can we extrapolate and conclude (counter-intuitively) that WE don't have free will? Do the same 'natural' laws apply to human 'nature'? Is there 'agent causation' or are we confusing nomological descriptions with prescriptive laws? We may be able to harmonize determinism with free will. We need not be concerned at this point with 'theological determinism' predicated on a deity's fore-knowledge of all true propositions, including propositions about our future actions, arguably another special case of determinism denying free will, especially under the additional premise that iff God cannot be mistaken, He does not have free will himself either. More on this apparent paradox later on.

     It may be that logical determinism's requirement of 'bivalence' may not strictly hold for propositions about our future human actions as individuals, that perhaps human nature is a special subset of 'nature' in a cosmological sense. This way human free will wouldn't be necessarily incompatible with a type of causal determinism that may even include underlying statistical and quantum mechanical causality. This ‘special’ determinism will thereby be controlled by natural laws limited in scope, more probabilistic and may even extend its causal influence into the hyperspace realm, especially when dealing with consciousness. Thus, we dare disagree with Chalmer's dogma of 'invariant functionality' and proclaim the uniqueness of man the moment we distinguish between 'natural' laws and human 'nature'; this means that the state of another world presumably in abeyance with same laws of nature as ours may not even guarantee a spontaneous human existence at time t (or if successfully transplanted in the future), or that isomorphic lives (structurally and functionally) at a time t+dt here and there would be identical and predictable in behavior. Arguing from a strictly non-theological viewpoint, we suspect that the 'living' includes also both 'chaotic' and 'quantum mechanical' behavioral patterns very difficult to predict yet imperfectly rational and highly deterministic in nature where 'every' event may not necessarily be preceded by a measurable or calculable cause. We have argued elsewhere that our visceral brain module 'modus operandi' may be described as a stochastic system providing a most important input in the maintenance of body-proper physiological homeostasis. This behavior does not fall completely outside the scope of natural laws; it is just a special variation to illustrate the complexity of man as a species.

     We can still ask whether we may enjoy free will at some intermediate level of behavior but remain powerless to alter what seems like both a lower level set of determinants present (genetics, laws, past, environment) and a higher level of pre-determined fate, not necessarily a theologically-determined social or circumstantial 'destiny'. At the intermediate level we as individuals certainly make causally efficacious choices -that make a difference- preceded by free deliberations yet there isn't very much we can do to have changed the higher level fate waiting for us.

     Can we e.g., distinguish between human and machine causation? Can we properly consider the constraints on free will imposed by genetics, laws and circumstances as equivalent to those the programmer wrote for the computer? There may not always be substantial differences in the outcome because it is the process that makes the difference. Besides making sure that our pondered reasons, intentions, and choices have a bearing on the final choice we, unlike the computer, are morally responsible for our actions because we made judgments feeling in control of self and consciously un-restrained in the exercise of the autonomy of the will. The self, as the prime mover of the action, is very different from a computer, the latter cannot assume responsibility, only its programmer who freely willed the event to happen, only him can create, justify and defend his strategy among other available alternatives. The only choice a computer may have in relation to the programmed strategy is to malfunction. It should be clear by now how the ingredients of choice and self-attribution of responsibility are essential ingredients of "free will". Employees in a federal bureaucracy who follow instructions to enter data in a computer have as much 'free will' as the computer that processes the input or as much as a golf ball traveling in the direction of the eighth hole or as a skillful marionette. Within the context of the bio-psycho-social ('bps') model, and especially considering the role played by the 'talking brain' Turing processing of propositional alternatives (most likely either analyzing the vector space transformations weights at network nodes or selecting from recursive competing loops in the network) the metaphysical analysis should not be distracted by the appearance of intervening choices before a solution is finally decided upon. This observation counters the argument that determinism requires an un-branching road trajectory that leaves no choices before a solution is arrived at. At the behavioral level, this may give the wrong impression that a human judgment is an absolutely free, pondered event where the agent is freely willing to accept the responsibilities for his final decision at ‘all’ levels of the decision-making process. This requirement is very difficult to attain because of the imponderable restraints on free choices that social and natural laws as well as past circumstances impose, none of which you can easily break.

     The foregoing should not be construed as a valid legal defense against the attribution of legal responsibility for statutory punishable acts. Barring the co-presence of insanity, accident, mistaken belief, duress, mental handicap, etc., the accused will still respond because the judiciary is charged with responsibilities at the social, not individual, level of survival in the 'bps' model. As we have argued, responsibility will attach if we are the first causes consciously aware of the responsibility of our actions as variously modified by internal-genetic and external-social factors outside our control, all of which fashions our beliefs, needs, desires, etc. The defense attorney's specialist will continue to argue for an exoneration based on the notion of the accused being, like a computer, just a causal link in a chain of causation outside his control, e.g., a case of just 'proximate causality'. E.g., pursuant to a combination of imponderables like genetic and environmental factors beyond my control, my client had only one alternative option based on 'bps' survival imperatives, to act the way he did. However, this way all human actions in violation of statues will become arguably exculpatory because they are ultimately caused by events and conditions outside the control of the accused, ergo, he was not free (not a first cause, like the reflex blinking of his eye) and thereby cannot assume responsibility. This would be a strong argument if we do not distinguish agency causation from natural causation. The latter is a ‘process’, the former is a ‘cause’ properly speaking. Since we lack causal power over our unconscious brain activity, the past and the laws, we only have the power to do those things which we can in reality do. "A man is both him and his circumstances."

     We have described before how a continuously self-adjusting body mechanism unconsciously balances the sense-phenomenal and body proper input with homeostatic base line parameters incorporating whatever data base memory is required to generate timely adaptive responses. Before a final decision is made we have a choice between various neuronal coalition networks all competing for the selection we finally choose (proximate causation). Do we choose arbitrarily by caprice or is there a basis for the choice based on its usual predictability? Are we ultimately closing that motor relay switch to effectors (muscles, glands) because we have a willed 'cause' or merely selecting the 'conditions' (relevant factors)? Do we choose at random or is there a conscious-preceding deliberation, sometimes even generating responses against species survival interests?

     Legal responsibility, in a Western social context, is what statutes, codes or judicial decisions (the law) say it must be –all things considered- as morally proper in individualized situations. It hopes that it best represents a general prescription for general social behavior in related circumstances. When you explore further into a ‘law’ you discover that its effectiveness revolves around an essential two place argument relation causeà effect that merits renewed analysis. Do laws adequately reflect unconscious bio-psycho-social drives as discussed elsewhere? Should causation in legal contexts, we ask again, be different from causation in nature, as for example in science or everyday life? We may ask whether the usual criteria for causal efficiency in law (a specific action or event or state of affairs has caused specific harm or loss to another) is an appropriate objective criteria when assigning responsibility to X for causing Y harm or loss. May the attribution of responsibility incorporate new elements in a different conception of cause from that employed for prediction or explanation in the legal theory of causation?

     Specifically, should unconscious bio-psycho-social (‘bps’) factors in the imputed agent be incorporated as yet another context worthy of consideration? When enforcing a law cause has always been considered as a multi-factorial tool. The best argument for their incorporation is that they are ever present, cannot be avoided by the agent, only by the opposing counsel, and thereby provides an additional criteria to the enumerated conditions -stage by stage- that must be present before qualifying the act as a punishable offense. We may then be in a better condition to make predictions as to possible behaviors once all elements constituting a punishable offense are present. The attribution of legal responsibility in a post modern society hinges on the accuracy and truth value of all constitutive elements. After all, the attribution of responsibility on causal grounds is not confined to law exclusively. It may turn out that the future focus in forensic law will be found when the 'bps' factor (e.g., untoward preceding event such as sudden death or an unexpected state of affairs such as insolvency in a multicultural millieu), collectively considered, will best predict or explain -among the whole spectrum of causal elements- a given outcome.

     It is always interesting to observe that 'intention' is the most important 'mens rea' in assigning responsibility yet this is, by and large, determined by ‘outcome’ not by 'intention' itself. This is illustrated in the legal distinction between causing / 'attempting' to cause harm or loss or the distinction between deliberate / negligent behavior. The routine incorporation of fMRI technology will pretty much contribute to solve this crucial unknown. What classically may be labeled as intentional may well turn out to be the unavoidable consequence of a complex unconscious reflex. A situation comes to mind when an 'accused' was able to read in the facial expressions of his potential aggressor his homicidal intentions and acted opportunely in 'self-defense' when no witnesses were present. Neuroscience research can be of significant help in sorting out the causeà effect conundrum in this case as elaborated on elsewhere. Needless to say that we are deliberately narrowing the concept of 'agency' to human conduct, leaving out damage or loss caused by the agency of corporations or other juristic persons, animals, inanimate objects (e.g.,motorcycles) or natural forces (e.g., hurricanes).

     Besides the usual guidelines script used in the assignment of liability one often wonders if a legal formal education should require the development of a philosophical sensibility for the way the judicial system often resolves complex problems by expected social 'quick fixes' or should be encouraged to assess the outcome of an agent's conduct over a period or even a lifetime in his particular ecological 'niche'. What we see instead is an emphasis on procedural over substantive law education except for noted university institutions. In that convenient, self serving, script-driven 'stare-decisis' modus operandi responsibility would only attach to deep-pocketed individuals or juristic persons such as states, corporations and other institutions to which personality is ascribed in law. Since you can't collect from the innocent, mentally deficient, un-intentional actors or nature why even bother with their implication!

     If we have come as far as recognizing that in law a necessary and a sufficient condition of legal responsability for the harm or loss may attach or not to juristic persons (e.g. the vicarious liability of employers for employees), or nature's flora or fauna (e.g. the second bite of a dangerous dog breed), or inanimate objects (e.g., the collapse of buildings, the impact of responsibly driven vehicles) or processes (e.g. brush fires), why not ponder further about personal responsibility? The usual institutional self-serving response is that some harm or loss has been caused and someone (deep pocketed) must respond, not that he has caused harm necessarily but that 'someone' must bear the risk. If there exist substantial factual grounds based on neuro-scientifically substantiated facts  to affirm that an intentional 'mens rea' indeed preceded the act, why should the risk be assumed -as in insurance contracts- or may be imposed by existing law, as in the case of employers' liability for intentional, politically-motivated wrongs committed by radical unionized employees in the course of their employment? The philosophy behind the distribution of social risks, while well intentioned, is accommodating, ignoring the precept of intention as the North Pole guiding sound judgments, if the actor is not objectively found as driven by overwhelming, exonerating disease parameters. The norm is to find the inexcusable personal ill intention of the actor as irrelevant because he can't pay! Is this the best promise an aspiring global economic system can give to posterity? The historical Jesus' poverty as a carpenter was not understood as a legitimate excuse for causing harm or otherwise acting in bad will. If legislators took into consideration 'bps' parameters guidelines, enacted social-interest laws would have to provide for a diminution of the involuntary or intentional scenarios promoting punishable acts (caused by their conduct or that of an agency for which they are responsible), like the unrestrained access by all citizens to all weapons under the 2nd. Amendment of the US Constitution, as convincing as the gut-feeling justifications may at first sight appear to be. Likewise, causing harm to another when justifiably threatened (as can be established by hi-tech tests) is also not a sufficient condition of legal responsibility. Much beyond the usual standard operating relevancies of jurisdiction, procedure and proof, the punishable conduct should be of the sort that intentions and good will, now amenable to quasi-objective technological assessment, can be reliably established.

     Due to understandable economic restrictions the relevant events at issue e.g., in an accident, have to be limited to the identification of the time, place and persons involved, and the relevant legal categories it can be configured into, such as intention, negligence and physical injury. In practice, with enforced vehicle insurance, only lawyer-inflated physical injury determines the outcome, the complexity of the relevant variety of causal relationships between agency and harm being systematically ignored, especially the legal and moral duty of the agent to prevent the occurrence. This way not only a re-incidence of immoral acts is being encouraged because "you are paying insurance to respond for your illegal acts" but the lawyering practice of coercing, mis-informing, etc. gets validated as a successful practice.

     These economically-inspired adulterations of a responsible law practice bring into focus the need for guidelines into the objective identification of intentional acts generating legal obligations, a causeà effect analysis of anti-social behavior practices carrying responsibilities. A recasting of the meaning of necessary and/or sufficient conditions (cause in fact) in the particular, not general, circumstances at issue is needed. The 'bps' model has argued 'at nauseam' that, considering the realities of our biological constitution, only 'proximate, operative or adequate causes' -not causalities extending into abstract infinities- will in fact become available. But again, economic pressures would control the final determination as to the causal relation there existed between agency and harm or loss. The 'quick fix' is to measure the depth of the pocket of protagonists as the fairest way of distributing responsibility, regardless of the degree of objective, 'but for, cause in fact', neuro-biologically measurable, approximate degree of responsibility. This is, unfortunately, the present state of affairs in torts litigation. There is more certainty to be achieved in the modern approach than in the classical 'substantial factor' determination whose (or which) presence contributed to the commission of the punishable act. This is especially so when two or more agents or a combination of agent(s) and special circumstances can be relevant. How is any judge or jury to objectively assign shared responsibility without an independent assessment? Finally we may ask whether beliefs play an essential role in the adjudication of responsibility.

Summary and Conclusions.

     Societal belief in a bio-psycho-social (‘bps’) model of consciousness is not that different from traditional beliefs that are characterized as intentional mental states whose content is related to the environment in a way such that our intrinsic properties play a major role as modifiers, thereby bringing into focus again the proper weight to assign internal and external factors when considering their influence in the decision-making process with respect to an object, event or relevant properties thereof. Once this property(ies) is individuated and its content identified or not, does its presence supervenes on the mind’s intrinsic or the property’s extrinsic attributions exclusively or an unconscious or willed combination thereof?

     When we form an intentional mental state about our belief (or hope that) that, e.g., there are WMD inside Iraqi territory we can immediately distinguish the difference in truth value regarding this mental content when the psychological type generated is based on factual knowledge (e.g., satellite photos) or an appropriate inference based on relevant but indirect reports. We may ask how this mental content is influenced by factual external or mental internal factors. 

     The legal controversy regarding the attribution of agent responsibility centers on mental contents sustained by psychological states based on inferences, especially if the agent has no control over his unconscious intrinsic 'bps' mechanisms participating in the generation of the ensuing belief, hope or desire.

     Let us briefly examine the debate emanating from identical twins embedded in both same / different external ‘social’ or ‘natural’ environments. The latter distinction is crucial. In our opinion Kripke's interpretation of Putnam's "Twin Earth" 'Gedanken' experiment as "semantic externalism" did not take into account the relative importance of such crucial intrinsic factors as wetness texture, taste, appearance, and other sense-phenomenal attributes of water (whether here or Twin Earth) as providing the proto-semantic causal stratum (the ontological 'what') on which an external environmental influence (adopted language) can cloth according to its syntax or other linguistic particularities (the epistemological 'how'). In our opinion this is rather a case of 'proto-semantic' internalism and illustrates the simpler variant of what externalists wrongfully consider as 'natural' (as opposed to the complex 'social') externalism. We have argued elsewhere how external causal and historical factors may act essentially as modifiers of what has been determined at a more basic level by 'bps' survival imperatives operating at unconscious or subconscious levels of control. In the example provided, if the inhabitant of Twin Earth had observed and felt the wetness and crystalline features of water, the meaning ('proto-semantics') was already there, internally determined, whether he called it XYZ, water or beer as the expected, adopted linguistic way of  expressing his belief that it behaved the way it did. If both inhabitants had the opportunity to select independently from an assortment of liquids, they would have elected the same one based on the unconscious, un-verbalized common meaning it had for both. We can extrapolate and make use of a similar argument to demonstrate that social and natural institutions like-wise play a secondary role in the determination of the mental content of beliefs, thoughts, and other psychological states but in a more complex manner. Since the more reliable intrinsic facts about water as experienced by both agents are the same, their corresponding intrinsic meanings generate the same beliefs regardless of their adopted or chosen language to express it. The counterfactual world situation exists only in the mind of the observer. The psychological content is the same, only the extra-semantic content of language varies. Davidson’s ‘swamp man’ might indeed possess some primitive thoughts to be modified in the social milieu despite its causal origin; to that extent some mental contents might be arguably narrow even when not linguistically expressed.

     The same argument will hold true for the content of all conscious mental states. The latter are always accompanied by affective qualia related to either a lower level sense-phenomenal content or a conceptual higher level consciousness requiring self-awareness as discussed elsewhere. It is no longer a secret that emotional experience variations can be correlated with internal bodily responses, as measured by fMRI. The autonomic homunculus lying deep to the perisylvian proto-semantic organ or ‘insula’, along with cingulum and cortical areas 4,4s show enhanced activity during controlled tasks involving visceral awareness (yoga?). It shows that subjective feeling states can be measured and quantified.

     Paradoxically, a sense-phenomenal 'conscious' mental state may operate at an ‘unconscious’ reflex servo-control level until a novelty requires accessing higher levels for adaptive responses to be put into effect. The uniformity of novelty-related adaptive responses (especially when reacting to environmental stimuli with a potential life-threatening content) is a strong argument for the uniformity of perceptual experiences as based on their similar intrinsic properties, in total agreement with token-identity theory where each particular mental state token is related to a physical brain state token even when the content may be appropriately related with the external environment, as we suggest in the 'bps' model. Our sense receptors provide a continuous functional isomorphism between a relevant ongoing aspect of the environment and a brain effector process that continuously adapts the agent’s behavior to it. Thus e.g., a 'mens rea' is a complex internal belief state encompassing the relations that the state bears to sensory, visceral and memory inputs, ongoing outputs and other 'on line' mental states. The 'mens rea' may not often involve an introspective knowledge of the agent's own mental state. An agent's beliefs and desires may causally explain much of her behavior, which in itself is an ongoing account of the neuro-physiological parameters of what is happening here and now within her. We are now in the position of accurately measuring the effect and / or significance of relevant environmental objects / events presented to a suspect, imputed or accused of a felony in the form of affective- laden multimedia slides. The information provided by simultaneous fMRI measurements can give us information about the emotional intensity and individual relatedness associated with their viewing, like the polygraph or ‘truth serum’ will never do. As expected from the ‘bps’ model brain activity during positive associations is enhanced in the amygdaloid complex, nucleus accumbens, insula and ventro-medial pre-frontal cortex. We can even analyze recorded changes in the parietal cortex evoked brain potentials (NR400) as a measure of the grade of familiarity a suspect may have with an important feature of an object / event, especially faces presented for his evaluation.

     A recurrent cycling in a neuronal network can not be precise as to what is cause or effect especially if we wish to incorporate any other external social or historical factor as a co-determinant of the relevant mental content. Can we expect even physically identical subjects to be psychologically similar? The short answer is that the newborn brings into existence the anlagen of various cognitive systems related to 'bps' survival which get modified in expression, not in substantive content or meaning with subsequent social experience. This is a modified version of Chomsky's 'internal'(I) and 'external'(E) language except for our radical departure concerning the precedence of proto-semantics I over syntax structure E, externally determined by the adopted language.

End of Chapter 23