We need to think about Kevin

29 May 2012 by

Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very  existence of intuitive morality.

US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.

The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet).

Clearly, findings of this kind are difficult to reconcile with the sense that one is the conscious source of one’s actions.  The discovery that humans possess a determined will has profound implications for moral responsibility.  Indeed, Harris is even critical of the idea that free will is “intuitive”: he says careful introspection can cast doubt on free will. In an earlier book on morality, Harris argues

Thoughts simply arise in the brain. What else could they do? The truth about us is even stranger than we may suppose: The illusion of free will is itself an illusion (The Moral Landscape)

But a belief in free will forms the foundation and underpinning of our enduring commitment to retributive justice. The US Supreme Court has called free will a “universal and persistent” foundation for our  entire system of law.

Implications for the criminal justice system 

Any scientific developments that threatened our notion of free will would seem to put the ethics of punishing people for their bad behaviour in question.In Free Will Harris debates these ideas and asks whether or not, given what brain science is telling us,  criminal justice, in focusing on retribution,  rests on an entirely false basis.  An example he gives is a murderer who kills because of a brain tumour. This person is a victim not a criminal. The tumour is the cause of his crimes. People imagine that the normal brain is a different story. But in fact the study of any criminal brain, says Harris, is the equivalent of finding a tumour in it – the wrong genes being transcribed, the brain being dictated by events over which he has no control. Human choice, says Harris,

is as important as fanciers of free will believe. But the next choice you make will come out of the darkness of prior causes that you, the conscious witness of your experience, did not bring into being.

Clearly we need to lock up dangerous people. But there is no sense to the idea that the somehow deserve it. Retributive justice is like requiring us to hate, as well as shoot, a wild animal who escapes from the zoo. His short book opens with an account of an horrific crime which mesmerised America with its cruelty  – the home invasion in Connecticut by two men in 2007. Two career criminals first brutally bludgeoned the father (the only survivor), then raped and murdered the mother, and finally killed the two young daughters when they set the house on fire. As one reviewer says,

Harris gives voice to most everyone’s worry when he writes that, without (contra-causal) free will, monsters like these men are “nothing more than poorly calibrated clockwork,” and therefore they aren’t really responsible for their actions. They’re just damaged goods.

Speaking on an WNYC interview, Harris explains that the brain precedes a motor plan before our consciousness of our planning of it, even while we think we’re still free to decide which way to go.

You can’t really take credit for your unconscious predelict. This reaches back into everything we think and do and decide. There is no place in which we can say, the buck stops here. The buck just never stops. Your wants themselves emerge out of a wilderness of causes which you yourself cannot inspect. The only tools at your disposal are those which you inherit from your past. There are certain things about morality and about the legal system which do shift when you take on board that there is no free will.

The evolutionary biologist Stephen Pinker reminds us that our sense of justice tells us that where someone commits a crime, the perpetrator’s culpability depends not just on the harm done but on their mental state, what any first year law student knows is the mens rea, the subjective state of intentionality prerequisite to establishing criminal liability. In his recent study of the decline of violence in human history, he gives the following example:

Suppose a woman kills her husband by putting rat poison in his tea. Our decision as to whether to send her to the electric chair very much depends on whether the container she spooned it out of was mislabelled DOMINO SUGAR or correctly labelled D-CON: KILLS RATS – that is, whether she knew she was poisoning him and wanted him dead, or it was all a tragic accident. A brute emotional reflex to the actus reus, the bad act (“She killed her husband! Shame!”) could trigger an urge for retribution regardless of her intention. (The Better Angels of our Nature: Ch8, Inner Demons, p 547)

This type of retributive impulse of course we all condemn as unpardonable in civilised society. But if we follow Harris’s argument to its logical conclusion, the correct label should no more condemn the murderer to retribution than the misleading one, for the proclivity to do harm is at large, and is in no wise governed by rational choices immediately preceding the actus reus. He is not making a case for exculpation on the basis of identifiable brain lesions or particular genetic mutations, which the psychologist Harold Schechter showed were notably absent from all the notorious subjects of his authoritative compendium The Serial Killer Files.

Are we really rational actors?

Where does this leave human rights? Harris’ prescription for rethinking criminal justice may lead to a compassionate outcome: the criminal cannot help himself, restrain him but don’t hate him; but let us remind ourselves of the first provision of the Universal Declaration of Human Rights, endorsed in 1948 by forty-eight countries:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

But if we cannot even be sure that our conscious minds can dictate the movement of our own limbs, how can we direct the whole macro-organism to behave in a civilised manner to the rest of the world, because some international agreement tells us to? By breaching the boundaries between scientific facts and human values, Sam Harris argues convincingly that most people are simply mistaken about the relationship between morality and the rest of human knowledge. Instead of bowing to secular but quasi-biblical commandments such as the UN Declaration, the Covenant on Civil and Political Rights and so on, we would do better to think about morality in terms of human and animal well-being, viewing the experiences of conscious creatures as peaks and valleys in what Harris calls a “moral landscape.” As the abstract of his exploration of morality proposes, there will be a time when science will no longer limit itself to merely describing what people do in the name of “morality”; in principle, science should be able to tell us what we ought to do to live the best lives possible.

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  1. Doug Pyper says:

    Interesting article There’s a fair amount of further discussion about this topic here: http://edge.org/?q=search&keyword=free%20will

    Irrespective of any methodological flaws in Libet et al’s experiments, I’ve never been comfortable with the notion that we act freely. Thoughts are chemical and electrical interactions that require prior proximate cause and play out in a pre-determined biological environment. It seems to me that each new action of mine, whether I appreciate it to be free or not, is simply the next domino in a rally started at the dawn of time.

    Whilst the relevance of this to criminal justice is of course interesting, its relevance to human rights/rights-based theorising is what interests me most. There was an American philosopher, Alan Gewirth, that proposed a model of ethical rationalism that relies quite heavily on human agency. Essentially, his argument was that we ascribe rights because we are agents that value our agency, and we recognise each other to be agents, therefore rights can be predicated on valuation of agency; i.e. we establish as rights notions that protect or facilitate maximum overall agency because we value this.

    That’s a pretty rough and unsympathetic potted version of his theory, but it seems his logic holds notwithstanding an absence of free will, as it is the value we place on the agency/perceived freedom of will that is key to the existence of the right. When we look at human rights instruments like the UN Declaration we find they reflect the fact humans value agency and seek to maximise it. Whether or not it is rational to value agency or perceive it as we do is largely academic; we simply do value it, and that valuation is a product of the same biological factors that suggest doing so is irrational. If Harris talks about doing better to talk about human well-being, he must factor into that our irrational valuation of agency, as it is a major constituent of well-being. Therefore, it doesn’t much matter whether free will or agency exists – what matters is we perceive it to exist, and whichever way you approach rights, via theories that talk in terms of free will, or theories that talk in terms of well-being, human rights instruments would still be necessary and would look much the same.

  2. ivan says:

    Saying that free will is an illusion does not invalidate penal policy. A non-human animal might be supposed not to have free will, but it is clear that an animal of sufficient brain capacity and flexibility, such as a dog or a dolphin, can be trained, and discipline is an important factor in achieving the “improved” behaviour of the trained animal. It is clear that purely retributive justice has the function only of making victims feel better. Justice designed to improving the behaviour of offenders demonstrably can improve their behaviour, at least on average, and we do not need to suppose free will for this to be true. Think even of a computer program, especially the neural net kind that needs “training” – good programming is part of achieving good performance by the machine. Life experience is a relevant factors taken into account when their brain mechanically calculates what to do.

  3. Geraint Biggs says:

    If Harris demostrates the absolute absence of free will then he demonstrates the absence of any meaningful moral code because they all -including Harris’- rely on us being able to choose between morally better or worse courses of action. The “should” statements which make up morality are rendered meaningless.

    If it makes no sense to condemn a criminal because he has no power over his actions then it makes no sense to say that we ought/need to re-think the justice system to accomodate that. We are just as destined to punish him as he is to commit his crime.

  4. I thought this was a fantastic blog post, on a really interesting topic. The whole issue of Humes Fork, and whether people are responsible for their actions if they are a consequence of matters that are beyond their control, doesn’t really sit that well with lawyers (well, maybe the “Twinkies defence” type of criminal defence lawyer, but not many of them) because so much of what we do hinges on people being autonomous and accountable, but the science is eroding that solid ground that we think we are standing on.

    I suspect it will be many years before society and Courts are ready to take the leap to people not being responsible for their crimes, and to treat them as a medical/genetic/chemical issue rather than a criminal justice one, however.

    I wish I could recall the source, but I was reading another book on neuroscience this year, which talked about a ‘criminal’ gene having being identified that makes the possessors of it 97 times more likely to be on death row than those who don’t have it, sixty times more likely to commit a murder, ninety times more likely to commit rape, and that just under fifty per cent of the population have this gene. The kicker being of course, that it is the Y chromosome. The exact quote was far more compelling and intriguing and had me completely suckered in to what this ‘criminal gene’ was, and why it hadn’t been more widely highlighted.

  5. JohnD says:

    I saw the film “We need to talk about Kevin” and I found it highly dissatisfying. Yes, of course, the mother in the film was not a very good one. She clearly found the fact that she was pregnant with Kevin an inconvenience in terms of her career. From memory, she wanted to have an abortion but her husband pressured her to complete the full term of pregnancy so that Kevin was born. While the film mother character was portrayed in a fairly unsympathetic light initially, she then went on to try to raise Kevin as a normal young boy but the film then developed a plot line where from his earliest possible age Kevin is a monster who grows up to eventually kill a large number of people.
    It seemed to me that the main thrust of the film was that people are born with their character for life. I do not believe this makes any kind of rational sense. As someone else has pointed out, upbringing is far more important than any inbuilt genetic traits. Most human monsters usually have a history of child abuse, e.g. Hitler and Stalin (though not Mao). This is why it is so important for all members of a civilised society that all young children should grow up in a nourishing and loving environment; by making them better children we end up with a better society for all.
    It used to be said that people only use 10% of their brain capacity. I believe we now know that something like 90% of brain activity takes place at a subconscious or even lower level. That is what the brain scans mentioned in the article above have apparently revealed.
    I do not see that the fact that 90% of brain activity takes place below the level of normal consciousness makes the concept of intent redundant. The fact is that actions motivated by the subconscious actually reveal more of the true or real character of a person. If someone steals, assaults or murders others as an almost automated response, largely driven by their subconscious, then we can arrive at a reasoned and rational calculation as to how much of a danger they are for the rest of society. It may be possible to heal their sick minds but it would be vital that such courses of treatment are carried out within secure facilities until such time as it has been clearly established that they no longer pose a threat to normal society.
    I know I have used a lot of value judgment words like ‘better’, ‘normal’, ‘good’ and so on in my response and it could be argued that these terms require proper clarification but time and space are always at a premium and I am sure most readers will share my common-sense understanding of these terms.

  6. Libet’s experiments go nowhere near far enough to demonstrate that free will is an illusion, assuming that such an argument makes sense to begin with.

    They have been subjected to serious and sustained criticism throughout, for example in Daniel Dennett’s “Freedom Evolves”. In particular, there are significant problems in the way the timing of the experiment occurs, as well as in the required recall by the test subjects. As noted by Dennett, the experiment presupposes, but does not demonstrate, that the perception of time and the perception of urge are simultaneous. There is also the significant risk that the subject has simply not accurately recalled the timings.

    The data could support the far narrower conclusion that these two perceptions are asynchronous, rather than that one absolutely precedes the other. Or that our ability to articulate a decision (rather than the decision itself), comes after we have made it. It’s not necessarily that free will is illusory, it’s that our decision-making isn’t as conscious and plodding as the experiments want us to think: my decision to brush my teeth in the morning does not require an internal monologue.

    It may also suggest that, even if we do have free choice, it’s a bit murkier a
    process than we ordinarily think it is. Given the unreliability of memory, our
    ability to deceive ourselves about our motivations at the best of times, and the lack of insight a lot of people have into their own decision-making processes, I don’t see these experiments as demonstrating anything other than that our motivations and decisions are murkier than we like to think.

    There is also a serious criticism from Mele (see here http://maverickphilosopher.typepad.com/maverick_philosopher/2009/05/free-will-meets-neuroscience.html) that the experiments simply confuse the notions of urges and decisions. Nobody would seriously dispute the idea that hunger comes before the decision to eat (generally speaking), but we wouldn’t suggest that has any significant implications for free will.

    Even if all the above however is no real objection, it still doesn’t go to show that there is no free will, only that drives to act in a certain way originate unconsciously. That isn’t really, of itself, that controversial. It does not, however, show that we don’t have free will. Where free will is said (by, e.g. Libet himself, and Ramachandran) to operate is in the decision whether to act on such an urge. I exercise free will and moral responsibility by suppressing my urge to punch the person who just insulted me.

    That does not require an overhaul of the legal principle of responsibility or the requirement of free will. Libet does not undermine in any significant way the idea that we are the captains of our fate.

    The biggest problem with Sam Harris’s work though is that it tends to beg the question. If he’s continuing in the same vein as The Moral Landscape, he presupposes the validity of Utilitarianism without arguing for its superiority over other ethical systems.

    1. Waldron-fan says:

      Very useful to have some rational cold water poured on the hype. Just to add a drop more – I can’t remember much of my A-level statistics course, except that there are generally accepted limits to what can be seen as “statistically significant”. The 2008 experiment initially sounds more robust against the points Benjamin mentions about timing (10 seconds lead, instead of only milliseconds). But I wonder whether 60% accuracy is actually statistically significant in something where random guessing should give you 50% “accuracy” as a base-line. It reminds me very much of the kinds of figures used by paranormal research “predicting” very similar activities, as evidence for psychic abilities. It sounds very much like someone peddling bogus science and only being given any house-room because it fits with what some over-enthusiastic neuro-scientists would like to think about the importance of their subject.

      1. Thank you. While I haven’t looked at the 2008 experiments themselves, assuming that they are accurate and that they conform with the observations in the Libet experiments, again it doesn’t come up as a defeater for free will. If the choice is simply “left” or “right”, with no incentive to favour one over the other (e.g. by providing different results), there’s little reason to think that a free choice would even be necessary in the decision: in the absence of any compelling reason to favour one over the other, “going with your gut” would be a perfectly rational and acceptable thing to do, and wouldn’t require the patient to exercise any real decision. It could easily be seen as saying that in 60% of cases, in the absence of any rational distinction between two equal choices, people go with their unconscious intuitions rather than exercising a conscious choice. That there was a 40% inaccuracy in the predictive ability would suggest that there’s more than enough wriggle-room for free will to exist.

        There was also research done in 2009 (http://www.sciencedirect.com/science/article/pii/S1053810009001135) that challenged the assumption that the Readiness Potential measured in Libet’s experiments actually represented the decision-making process, further weakening the idea that these experiments actually challenge notions of free will.

        The big problem with a lot of popularising books like Harris’s (and Pinker’s book is pretty bad at this too) is that they are not subject to a process of peer review, and are able to get away with making the sorts of generalisations that would be considerably more difficult in an academic forum

  7. Lazarus says:

    ‘science should be able to tell us what we ought to do to live the best lives possible’

    And how will we respond to that in the absence of free will?

  8. Roberto says:

    May I offer these thoughts?

    1) Take Harris’ example of choosing a city with your mind (early on in his lecture online), when he’s saying “just to pick one that comes up in your mind”, seems to be like offering a fanned out, face down, pack of cards and saying “pick one”. Yes, it’s a choice, but not in the same category as laying all the cards face up on a table and saying “pick one out of these”. Did you really “choose” a card/city out of all possible ones, selected from the group? Or did you just pick out a card/city from a “black box”, taking the first that comes to mind/hand? Set theory seems to be involved…

    2) Could there be room for a notion of Free Will that admits of degree, as is the case in diminished responsibility? So, depending on the circumstances, one could have a certain amount of autonomy in one’s decisions, though the limits would be up for debate, taking into account factors such as duress, undue influence, state of mind, background, etc…

  9. The Buddhist view has long been that we should love the sentient being but hate their delusions.

    The article focused on serious harm done by one human to another who would under current legal framework would be deemed totally responsible. We need to help these people to change their delusions not incarcerate them as a punishment. If science can assist with this reversal that is excellent news.

    In our current Justice system by far the greatest tragedy is the thousands of people who suffer from organic mental health problems who are prosecuted by the State regardless of the fact that their illness means their can be no Mens rea. Regardless of the fact incarceration and punishment will only exacerbate their problems.

    If we can not only address this issue of the punishment of offenders who are incapable of having guilty mind but extend compassion to all sentient beings who’s minds, in one way or another, compel them to make bad choices we will move towards a society where love and compassion are not restricted to religions.

  10. Stephen says:


    Although free will may be illusory for individual human beings, it is not illusory for society at large. Decisions made by business and political elites can, and should, employ formal and rational decision making methodologies.

    Neuro-science also now informs the understanding of human development in infants. When infants are caressed, or otherwise interact with their carers, brain scans show the neurons in their brains spark and connect. The intellectual, emotional and moral development of individuals depends on such neural connections being made in infancy.

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