If an NFL player received a physician's prescription to use marijuana as a medicine, could the NFL deny him? The answer is probably yes, since the player's contract requires him to adhere to collectively-bargained restrictions, one of which is no use of marijuana. As to whether the player could seek a claim under the Americans with Disabilities Act to use marijuana, while it's true that the ADA can't be contracted around, the Ninth Circuit recently held that medical marijuana is not protected by the ADA.
I spoke with Maggie Gray today about this topic and the arrest of Browns receiver Davone Bess -- who was arrested at an airport after tweeting a photo which seemed to show marijuana -- on SI Now:
Friday, 17 January 2014
Thursday, 16 January 2014
A-Rod, the MLBPA, and PED Culture Change
By now everyone has had time to digest Monday's news that Alex Rodriguez is suing both MLB and the Major League Baseball Players Association in an attempt to overturn the decision by arbitrator Frederic Horowitz's suspending him for the entire 2014 season. While Rodriguez's case against MLB had been expected, his decision to also name the MLBPA in the suit took some by surprise. In particular, Rodriguez alleges that the union violated its duty to fairly represent him in three ways: (i) by failing to take sufficient steps to stop MLB from leaking confidential details regarding his arbitration to the media, (ii) by failing to intervene to prevent MLB from obtaining information through it's Florida state court lawsuit against Biogenesis, and (iii) through statements made by former MLBPA Executive Director Michael Weiner allegedly suggesting that A-Rod was guilty of PED use.
Rodriguez likely included the claims against the MLBPA in his suit in hopes of boosting his chances of convincing the federal court to overturn the arbitration decision. By alleging that the union did not fairly represent him in the matter, he can contend that he should not be bound by the arbitration's outcome, despite the fact that it was the result of a collectively-bargained-for procedure. Rodriguez's chances of success on the claim are nevertheless quite slim, as a breach of the duty of fair representation typically requires a showing that the union acted in bad faith, or in an arbitrary or discriminatory way, neither of which appears to be the case here.
A-Rod's suit against the MLBPA can also be viewed in another light, however; in many respects, it is a natural consequence of the recent culture change within the union regarding PED use. In the wake of the Biogenesis scandal, a majority of MLB players increasingly appear to favor stiffer punishment of PED violators. For example, the MLBPA announced over the summer that it would not defend players in cases where there was overwhelming evidence of PED use, but would instead encourage them to reach a settlement with MLB. While such a stance appears to reflect the majority opinion within the union, it also exposes the MLBPA to suits like Rodriguez's when an accused PED user feels that the union should have done more to protect him from league prosecution.
This culture change may also explain one curious aspect of the Rodriguez arbitration decision. Prior to the release of the decision, commentators had questioned how MLB had reached the 211-game figure in its suspension of Rodriguez. Indeed, under Section 7.A of MLB's Joint Drug Agreement (JDA), a first time violator is supposed to receive a 50-game suspension. However, as the arbitration decision reveals, Rodriguez's suspension was not based on Section 7.A, but instead on Section 7.G.2, under which a player is "subject[] to disciplinary action for just cause" for "any violation ... not referenced in Section 7.A through 7.F."
As Fangraph's Wendy Thurm has pointed out, this reliance on Section 7.G.2 is somewhat curious. Based on its express language, Section 7.G.2 only applies in cases where there has not been a violation of Section 7.A. Section 7.A, meanwhile, expressly applies in cases where a player "tests positive for a Performance Enhancing Substance, or otherwise violates the program through the use or possession of a Performance Enhancing Substance," the latter half of which seemingly would apply to the facts of the A-Rod case. Arbitrator Horowitz concluded that Section 7.A did not apply to Rodriguez, though, because A-Rod was not accused of using a single prohibited Performance Enhancing Substance, but instead of using three different banned substances. In such a case, he determined, punishment pursuant to Section 7.G.2 was warranted.
Horowitz's reading of the JDA runs contrary to normal rules of interpretation, under which singular nouns are typically assumed to include the plural form, and visa versa, unless the context indicates otherwise. In other words, the term "a Performance Enhancing Substance" would normally refer not only to the use of a single banned substance, but the use of multiple prohibited substances as well.
Horowitz's decision justifies his unusual interpretation of Section 7.A as follows:
All of this raises the question of why the MLBPA would agree to such an interpretation of the JDA. Indeed, because violations of Section 7.G.2 are not subject to the typical 50-100-lifetime suspension framework employed for violations of Section 7.A, David Waldstein of the New York Times notes that the Rodriguez arbitration decision potentially gives MLB significant new power to punish alleged PED users. Admittedly, in Rodriguez's case the application of Section 7.G.2 was arguably beneficial, as his use of three different banned substances could have potentially justified a lifetime suspension under Section 7.A. Nevertheless, given that the Rodriguez decision will serve as a precedent for future cases, and therefore may subject players that would normally be subject to only a 50 or 100-game suspension under Section 7.A to lengthier punishment, the question remains of why the MLBPA would take such a stance in the Rodriguez arbitration.
Although we don't know for sure why the MLBPA took the position it did, one possible explanation is that its stance reflects the union's changing culture with respect to PED use. If a majority of union members now favor stiffer punishment of PED users, then the MLBPA's consent to the application of Section 7.G.2 in cases where a player used multiple banned substances begins to make more sense. While this new interpretation will certainly hurt those accused of PED use in the future, it will likely also have a significant deterrent effect against PED usage. As a result, the union may have concluded that it was willing to concede to a potentially questionable interpretation of the JDA in order to accede to the wishes of a majority of its membership.
Indeed, the union's stance on the applicability of Section 7.A to A-Rod's case appears to have shifted over time. Last summer, MLBPA Executive Director Michael Weiner seemed to suggest that the Biogenesis suspensions were not subject to Section 7.A. By the time Rodriguez was formally suspended in August, however, the union had apparently changed its position, with Commissioner Bud Selig acknowledging that "the MLBPA has now taken the position that your [Rodriguez's] discipline ... can only be imposed in accordance with the schedule set forth in Section 7.A." (Arbitration Decision at 14). By the time that Rodriguez's case reached arbitration, however, the union apparently had flip-flopped once again, agreeing that Section 7.G.2 was the applicable provision.
Whether the union will ultimately come to regret its position in the Rodriguez case remains to be seen. At a minimum, though, it appears to reflect a new reality within the MLBPA regarding PED use.
Rodriguez likely included the claims against the MLBPA in his suit in hopes of boosting his chances of convincing the federal court to overturn the arbitration decision. By alleging that the union did not fairly represent him in the matter, he can contend that he should not be bound by the arbitration's outcome, despite the fact that it was the result of a collectively-bargained-for procedure. Rodriguez's chances of success on the claim are nevertheless quite slim, as a breach of the duty of fair representation typically requires a showing that the union acted in bad faith, or in an arbitrary or discriminatory way, neither of which appears to be the case here.
A-Rod's suit against the MLBPA can also be viewed in another light, however; in many respects, it is a natural consequence of the recent culture change within the union regarding PED use. In the wake of the Biogenesis scandal, a majority of MLB players increasingly appear to favor stiffer punishment of PED violators. For example, the MLBPA announced over the summer that it would not defend players in cases where there was overwhelming evidence of PED use, but would instead encourage them to reach a settlement with MLB. While such a stance appears to reflect the majority opinion within the union, it also exposes the MLBPA to suits like Rodriguez's when an accused PED user feels that the union should have done more to protect him from league prosecution.
This culture change may also explain one curious aspect of the Rodriguez arbitration decision. Prior to the release of the decision, commentators had questioned how MLB had reached the 211-game figure in its suspension of Rodriguez. Indeed, under Section 7.A of MLB's Joint Drug Agreement (JDA), a first time violator is supposed to receive a 50-game suspension. However, as the arbitration decision reveals, Rodriguez's suspension was not based on Section 7.A, but instead on Section 7.G.2, under which a player is "subject[] to disciplinary action for just cause" for "any violation ... not referenced in Section 7.A through 7.F."
As Fangraph's Wendy Thurm has pointed out, this reliance on Section 7.G.2 is somewhat curious. Based on its express language, Section 7.G.2 only applies in cases where there has not been a violation of Section 7.A. Section 7.A, meanwhile, expressly applies in cases where a player "tests positive for a Performance Enhancing Substance, or otherwise violates the program through the use or possession of a Performance Enhancing Substance," the latter half of which seemingly would apply to the facts of the A-Rod case. Arbitrator Horowitz concluded that Section 7.A did not apply to Rodriguez, though, because A-Rod was not accused of using a single prohibited Performance Enhancing Substance, but instead of using three different banned substances. In such a case, he determined, punishment pursuant to Section 7.G.2 was warranted.
Horowitz's reading of the JDA runs contrary to normal rules of interpretation, under which singular nouns are typically assumed to include the plural form, and visa versa, unless the context indicates otherwise. In other words, the term "a Performance Enhancing Substance" would normally refer not only to the use of a single banned substance, but the use of multiple prohibited substances as well.
Horowitz's decision justifies his unusual interpretation of Section 7.A as follows:
MLB, the MLBPA, and the Player agree that Section 7.G.2 of the JDA supplies the governing framework for this case. The record establishes that cases such as this, involving continuous and prolonged use or possession of multiple substances (as opposed, e.g., to a single positive test), were intended to be handled under Section 7.G.2 rather than Section 7.A.Arbitration Decision at 28 (appearing as Exhibit A to A-Rod's complaint).
All of this raises the question of why the MLBPA would agree to such an interpretation of the JDA. Indeed, because violations of Section 7.G.2 are not subject to the typical 50-100-lifetime suspension framework employed for violations of Section 7.A, David Waldstein of the New York Times notes that the Rodriguez arbitration decision potentially gives MLB significant new power to punish alleged PED users. Admittedly, in Rodriguez's case the application of Section 7.G.2 was arguably beneficial, as his use of three different banned substances could have potentially justified a lifetime suspension under Section 7.A. Nevertheless, given that the Rodriguez decision will serve as a precedent for future cases, and therefore may subject players that would normally be subject to only a 50 or 100-game suspension under Section 7.A to lengthier punishment, the question remains of why the MLBPA would take such a stance in the Rodriguez arbitration.
Although we don't know for sure why the MLBPA took the position it did, one possible explanation is that its stance reflects the union's changing culture with respect to PED use. If a majority of union members now favor stiffer punishment of PED users, then the MLBPA's consent to the application of Section 7.G.2 in cases where a player used multiple banned substances begins to make more sense. While this new interpretation will certainly hurt those accused of PED use in the future, it will likely also have a significant deterrent effect against PED usage. As a result, the union may have concluded that it was willing to concede to a potentially questionable interpretation of the JDA in order to accede to the wishes of a majority of its membership.
Indeed, the union's stance on the applicability of Section 7.A to A-Rod's case appears to have shifted over time. Last summer, MLBPA Executive Director Michael Weiner seemed to suggest that the Biogenesis suspensions were not subject to Section 7.A. By the time Rodriguez was formally suspended in August, however, the union had apparently changed its position, with Commissioner Bud Selig acknowledging that "the MLBPA has now taken the position that your [Rodriguez's] discipline ... can only be imposed in accordance with the schedule set forth in Section 7.A." (Arbitration Decision at 14). By the time that Rodriguez's case reached arbitration, however, the union apparently had flip-flopped once again, agreeing that Section 7.G.2 was the applicable provision.
Whether the union will ultimately come to regret its position in the Rodriguez case remains to be seen. At a minimum, though, it appears to reflect a new reality within the MLBPA regarding PED use.
Wednesday, 15 January 2014
Fontana on Jewish athletes
David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."
Interested in studying Sports Law? Join our UNH Law Sports and Entertainment Law Institute chat tonight
If you're interested in studying sports law, I hope you consider joining our chat tonight from 7:30 to 9:30 pm EST at the University of New Hampshire School Law. I'll be joined by two current students and we'll talk about our Sports and Entertainment Law Institute and answer questions about our programs. I hope you can join the discussion! Here's more information:
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A-Rod: A Detailed Look at His Arbitration Ruling and Its Implications
Here are four of my recent articles on the A-Rod decision that readers may find helpful:
1. A-Rod Will Have a Tough Time Challenging His 162 Game Suspension in Court (Jan. 11)
2. The A-Rod Arbitration Might Have Been Legally Wrong, But that Doesn't Make the Arbitrator Biased (Jan. 12)
3. Should The Major League Baseball Players' Union Fire Frederic Horowitz for His A-Rod Decision? (Jan. 14)
4. Why Two Of Baseball's Past Arbitrators May Have Been More Lenient On A-Rod's Suspension (Jan. 15)
5. Why A-Rod's Decision to Sue Players Union May Be More Strategic Than Legal (New: Jan. 16)
Tuesday, 14 January 2014
Two New Sports Illustrated Articles: Proposed NFL settlement Rejected, Maryland sues ACC
I have a couple of articles for SI.com today, a busy day in sports law:
* What Rejection of Settlement means to concussion case against NFL
Excerpt:
The good news for the NFL and the retired NFL players who support the settlement is that they can rework it and then petition for Brody's approval. One obvious correction would be to provide more data and documentation to support the settlement's economic assumptions. A second and more controversial step would be to increase the $765 million. Whether NFL owners, who will share in paying this amount, are willing to increase their contributions by a significant margin remains to be seen. A 31 percent increase would bring the settlement amount to just over $1 billion. Given the league's annual revenue of $9 billion to $10 billion, it could send a powerful message to Brody and skeptical retired NFL players if a new proposed settlement at least crossed the billion dollar line.
A reworked settlement could also reallocate some of the money that was intended for medical research to retired players' health expenses. While this move would raise a potentially different set of objections by Brody, it would help to address her central criticism that not enough money is being made available to retired players.
* Maryland-ACC suit brings business of college sports back to spotlight again
Excerpt:
There are three key takeaways from the Maryland-ACC litigation.
First, both sides hope to litigate before home-state courts, with the ACC holding the "home-court" advantage for the time being. The North Carolina-headquartered ACC is surely appreciative to litigate before North Carolina jurors and a judge elected by North Carolina voters. Maryland, in contrast, would prefer to litigate before a Maryland court, which would feature Maryland jurors and a judge who, though initially appointed by the governor, must face Maryland voters to be retained.
While the law must be applied fairly by the courts of all states, trial attorneys are mindful that local biases can sometimes play a crucial difference in close cases. Should the ACC win in North Carolina, watch for Maryland to attempt to convince a Maryland court to hear similar claims.
Preliminary approval of NFL concussion settlement denied
Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania has denied preliminary approval of the $765 million settlement in the concussion lawsuit. Brody was concerned that there would not be sufficient funds to cover even 10 % of former players who ultimately receive qualifying diagnoses, given the proposed length and scope of the settlement pool. She also dropped a footnote expressing additional concerns, still to be addressed, about the adequacy of the funds and the release of the NCAA and other amateur football organizations. The denial was without prejudice and the parties will be able to offer further documentation to show adequacy.
Monday, 13 January 2014
More on the Infield Fly Rule
This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.
U.S Supreme Court grants cert in ABC v. Aereo: Impact on NFL and MLB Broadcasts?
Last Friday, the U.S. Supreme Court granted cert in ABC v. Aereo, a copyright case which the NFL and MLB say could lead to them taking all their games off of free FV and onto cable. Sports Illustrated writer and media expert Richard Deitsch asked me to analyze the case in his latest SI column. My 500-word take is at the end of his piece. Here's an excerpt:
...Major television networks, including ABC, CBS, NBC, Fox and PBS, have joined together to sue Aereo, a technology company that provides paying subscribers with antennas to receive and record live streamed broadcasts on their computers, tablets, AppleTVs and other devices. Aereo is only available in 10 markets—Atlanta, Baltimore, Boston, Dallas, Denver, Detroit, Houston, Miami, New York City and Salt Lake City— and, depending on the market, provides between 15 and 50 channels, none of which are sports channels. Aereo's controversy stems from the fact that it does not pay fees to stream (retransmit) network programming ...
...The leagues ominously warn that if Aereo is ruled lawful, they will eventually shift all of their game broadcasts to cable stations outside of Aereo's reach...
...[But] by moving all of its games to cable, the NFL would lose the [Sports Broadcasting Act]'s exemption's protection and open itself up to years of antitrust litigation.
Sunday, 12 January 2014
Legal Strategy for Alex Rodriguez after Suspension Reduced to entire 2014 season
I have a new article for SI.com that examines the reduction in Alex Rodriguez's suspension and outlines his legal strategy going forward. Here is an excerpt:Rodriguez's attorneys are also likely to struggle to prove the necessary elements for a preliminary injunction. A judge would balance four factors in reviewing whether to grant an injunction.
First, Rodriguez would have to show he has a substantial likelihood of success on the merits. The problem for Rodriguez is that federal courts are highly deferential to arbitration rulings and Horowitz is both experienced and respected. Rodriguez would have to supply compelling evidence that Horowitz exhibited what's known as a "manifest disregard of the law" in his decision-making. This standard usually requires a showing that the arbitrator made an egregious error in evaluating the evidence or otherwise ignored basic legal principles. It seems unlikely that Horowitz made such an error. Rodriguez may highlight how Selig avoided having to testify, but it's unclear why Selig "had" to testify to make the arbitration valid. Selig, according to published reports, has never testified in an arbitration related to performance-enhancing drugs.
In addition, the fact that the players' association did not formally challenge Selig's absence does not help Rodriguez's case. Rodriguez would also assert that MLB strategically leaked information to sympathetic media members as a way of undermining his chances in arbitration, but proving such a claim with actual evidence would be difficult.
To read the rest, click here.
Friday, 10 January 2014
Legal Analysis of Heisman Trophy Winner Jameis Winston Facing Civil Lawsuit
I have a new article for SI.com on news that a woman who has accused Jameis Winston of sexual assault plans on suing him, along with the Tallahassee Police Department and Florida State University. Here's an excerpt:Not only would a lawsuit be time-consuming for Winston, it may also reveal damaging information about him. This is especially true during pretrial discovery, which would take place if Winston's attorneys fail to convince a judge to dismiss the lawsuit. Pretrial discovery would compel Winston to answer sensitive questions under oath and provide text messages, emails and other communications. He would have to discuss the night of the alleged rape and other intimate topics, such as his sexual history and use of alcohol and drugs. While pretrial discovery is generally confidential, the media would aggressively try to uncover any inflammatory information. This information might hurt Winston's reputation with many, including Heisman voters, NFL teams and companies that might eventually want to sign him to an endorsement contract.
To read the rest, click here.
Thursday, 9 January 2014
You can't make this up
A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs. The man, apparently a Steelers fan, is angry that the Chargers made the playoffs when they beat the Chiefs in Week 17 in overtime, after the Chiefs kicker missed a field goal as regulation expired, a play on which an illegal-formation penalty should have been called, giving the Chiefs a re-kick.
The motion argues that the league acts fraudulently and negligently in limiting team challenges. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).
The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk is that many prisoners react worse when you do give their papers merits analysis and they still lose.
The motion argues that the league acts fraudulently and negligently in limiting team challenges. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).
The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk is that many prisoners react worse when you do give their papers merits analysis and they still lose.
Wednesday, 8 January 2014
Intentional non-scores
In a forthcoming paper (due to be published the day after the Super Bowl), I apply the cost-benefit model I created to justify the infield fly rule to football. I examine plays in which players have an incentive to gain a heavy advantage by acting contrary to ordinary athletic expectations and when rule makers should step in to prevent these unexpected plays. One situation I discuss is the incentive for teams to intentionally not score when given the chance, choosing instead to delay scoring in favor of running more time off the clock before trying to score the tying or winning points.
At Slate, Brian Burke runs the numbers on whether Auburn's Tre Mason should have kneeled on the one yard line rather than scoring with 1:19 remaining and Auburn trailing 27-24. He concludes he should not have, based on (admittedly conservative) estimates of Auburn's likelihood of scoring the game-winning touchdown from the one.
At Slate, Brian Burke runs the numbers on whether Auburn's Tre Mason should have kneeled on the one yard line rather than scoring with 1:19 remaining and Auburn trailing 27-24. He concludes he should not have, based on (admittedly conservative) estimates of Auburn's likelihood of scoring the game-winning touchdown from the one.
Freewill determinism resource (for A Level etc.)
5. Does Murderous Mick Deserve To be Punished?
Here’s Murderous Mick. He’s just been captured trying to rob a bank.
1.ILLUSTRATE: MURDEROUS MICK WITH HANDS UP AND ARMED DETECTIVES (MICK IS A COWBOY AND APPEARS IN TPF1) DEAD GUARD IN BACKGROUND.
Mick shot a bank guard in the back, just for fun.
Obviously we think very badly of people like Murderous Mick. We hold them responsible for their dishonest, selfish and cruel behaviour. We believe that they deserve punishment. Mick will end up locked up in jail for years.
I guess you think, “And quite right too. That’s what Mick deserves.”
A “common sense” view
That people who rob and murder deserve to be punished for what they do is, of course, the “common sense” view. But is “common sense” correct about this?
As we will soon discover, there’s a famous philosophical argument that seems to show that we are mistaken: Murderous Mick doesn’t deserve punishment. In fact he’s entirely blameless!
2.ILLUSTRATE: MICK IN JAIL SAYING TO READER “THAT’S RIGHT. I’M BLAMELESS!”
But before we get to that famous argument, let’s quickly look at an obvious exception to the rule that people deserve to be punished for the harm they cause.
Mr Black gets shoved out the window
We don’t always hold people responsible for what they do. Suppose Mr Black gets pushed backwards out of a window. He lands on top of Mr Brown.
3.ILLUSTRATE: LANDS ON MR BROWN (NB BLACK AND BROWN ARE MIDDLEAGED MEN THAT APPEARED IN TPF1).
Mr Black’s okay. But unfortunately, by landing on Mr Brown, Mr Black breaks Mr Brown’s arm.
4.ILLUSTRATE: SAD MR BROWN ARM IN PLASTER.
Is what happened Mr Black’s fault? Does he deserve to be punished?
Surely not. Murderous Mick might deserve punishment, but not Mr Black. Why is this? After all, like Murderous Mick, Mr Black caused a serious injury.
The answer, it seems, is that Mr Black had no control over what happened. He was quite unable to stop himself being pushed out of the window or falling on Mr Brown.
But then how can it be Mr Black’s fault that Mr Brown ended up with a broken arm? Surely we can only hold someone responsible for doing something they actually had some control over.
But, as I say, we do suppose that Murderous Mick deserves punishment. We suppose that, unlike Mr Black, Mick didn’t have to do what he did. Instead of going in for bank robbing, murder and mayhem, Mick could have chosen to do good things with his life.
5.[ILLUSTRATE SERENELY SMILING MICK WITH HALO RUNNING “MICK’S SOUP KITCHEN FOR THE HOMELESS” ]
Mick deserves punishment because, unlike Mr Black, he was free to do otherwise.
That, at least, is the “common sense” view.
An extraordinary argument
Let’s now turn to the famous philosophical argument I mentioned earlier. The argument is extraordinary because it seems to show that no one can ever be held responsible for what they’ve done.
Not even Murderous Mick!
Your first reaction to this is probably to say “Are you nuts! Of course Mick deserves punishment!” But don’t make up your mind just yet. Let’s take a closer look at the argument first. I call it, for obvious reasons, the we-never-deserve-punishment argument.
I’ll break the argument down into three parts. Here’s part one.
The we-never-deserve-punishment argument. part one: laws of nature
The argument begins with a scientific discovery. The universe, it seems, is everywhere ruled by laws. These laws of nature, as they are known, govern everything that happens physically.
You might think of the laws of nature as a list of instructions that everything in the universe is compelled to obey, down to the very last atom. For example, there’s a law that governs how bodies attract each other gravitationally.
Take the two planets Earth and Venus. These two objects exert a gravitational pull on each other. And there is a law of nature that says exactly how much pull these objects will exert on each other. The amount of pull depends on how massive the objects are and how close they are together. Big objects close together exert a strong pull.
6.ILLUSTRATE: TWO BIG SPHERES WITH BIG THICK ARROWS WITH GRAVITY ON THEM POINTING TO EACH OTHER.
Little objects far apart exert a weak pull.
7.ILLUSTRATE: SMALL SPHERES WITH SMALL THIN ARROWS MARKED “GRAVITY” POINTING AT EACH OTHER.
Every pair of physical objects in the entire universe, from the tiniest pebble on the beach to a whole Galaxy, must obey this law. There are no exceptions.
There are many other laws of nature, of course. In fact everything that physically happens in the universe is governed by such laws.
This means that, if you know exactly how the universe is a set up at any particular moment in time, down to the movement of the very last atom, and if you know all the laws of nature, then it is possible in principle for you to work out what will happen next, down to the movement of the very last atom.
It’s as if the universe is a train and the laws of nature are its rails. If you know how fast the train is moving, and you know how the rails are laid, then you can predict exactly where the train will be at any point in the future. The train has no choice about where it will end up. It’s compelled to travel in a particular direction by the rails.
8.ILLUSTRATE: TRAIN ON RAILS APPROACHING STATION.
The same is true of the physical universe. Every piece of physical matter is in the vice-like grip of the same rigid laws. It’s impossible for anything to happen other than what actually happens. Earthquakes, volcanoes, rockfalls, the tides, ice ages: everything that goes on physically is made to happen, and could in principle have been predicTed long beforehand.
9.ILLUSTRATION: EINSTEIN WITH BLACKBOARD (CALCUATIONS) “YOU SEE, IN EXACTLY FIVE HUNDRED YEARS TIME, A METEOR MUST CRASH INTO THE EARTH’S SURFACE AT EXACTLY THIS SPOT. I’VE WORKED IT ALL OUT.”
Philosophers have a name for the view that everything that physically happens in the universe is determined by laws. It’s called determinism.
The we-never-deserve-punishment argument. Part two: we’re nature’s puppets
Which brings me to part two of the we-never-desereve-punishment argument. We are physical beings ourselves. We have physical bodies. But then it follows that our bodies are in the grip of the same physical laws as everything else.
What does this mean? Well, if we are also in the grip of these laws, then it seems we are not free to do anything other than what we actually do. For example, I just scratched the top of my head. But if determinism is true, I was no more able not to scratch my head than a pebble is free to float in mid-air or water is able to flow up hill unaided. Everything I do is physically determined, and could in principle have been predicTed long before I decided to do it.
So I am not free. As physical beings, we are nature’s puppets, dancing on her strings.
10.ILLUSTRATE: PUPPET MASTER (LABELLED “NATURE”) WITH MARIONETTES ON STRINGS.
“But there are no laws of human nature…”
Before we get to part three of the we-never-deserve-punishment argument, let’s quickly deal with a worry you might have about part two.
“Surely,” you may say “There are no laws governing human behaviour, are there? For example, there’s no law that says that when someone is hungry and they know that there’s food in the fridge, they will go to the fridge.”
Suppose Mary is hungry and she knows the only food is in the refrigerator.
11.ILLUSTRATE: MARY THINKING ABOUT FOOD IN FRIDGE (LOOKING UP AT THOUGHT BUBBLE WITH PICTURE OF FRIDGE WITH CAKES ETC. IN), TUMMY RUMBLING.
Now, knowing human behaviour as I do, I can say that it’s pretty likely that Mary will go to the fridge fairly soon. But there’s no guarantee that she will. Perhaps Mary’s on a diet. Or perhaps she’s saving the food in the fridge for a party she’s planning to have that evening.
The most I can say is that Mary will probably go to the fridge. There’s no law compelling her to go to the fridge. She’s free to do either.
Is this a good objection to the claim that we aren’t free?
I don’t think so.
True, there are no laws of human behaviour. But even if there are no laws of human behaviour, does it follow that Mary is free?
No, it doesn’t follow. I admit there’s no law that says that a hungry person who know there is food in the fridge will go to the fridge. But a human being is a storm of tiny particles.
12.ILLUSTRATE: HUMAN AS A STORM OF WIZZY PARTICLES, WITH CAPTION “A HUMAN BEING IS A STORM OF TINY PARTICLES”.
Mary is made out of molecules that are made out of atoms that are made out of electrons, protons and neutrons which are made out of still tinier particles all whizzing around. Each and every one of these particles is in the vice-like grip of the laws of nature. They cannot do anything other than what they do in fact do. Now it’s the laws governing these particles that determine how Mary will behave. It is these laws that compel her to do whatever she does in fact do.
So Mary is not free. There may not be laws of human behaviour. It doesn’t follow that everything we do isn’t determined by laws.
We human beings think we’re free. But were not really free. Our freedom is an illusion. We’re nature’s puppets.
The we-never-deserve-punishment argument. part three: we’re not to blame
Now we reach the final part of the we-never-deserve-punishment argument. If none of us is ever free – if we are unable to do anything other than what we do in fact do – then how can we ever be held responsible for what we do? How can we ever deserve punishment?
After all, we said about Mr Black that he didn’t deserve to be punished for landing on Mr Brown. That was because he had no control over what happened. He was compelled to land on top of poor Mr Brown.
But if determinism is true, the same is true of what Murderous Mick did. Murderous Mick was no more able not to shoot that poor bank clerk than Mr Black was able not to land on top of Mr Brown. Neither was free to do anything other than what they did do. But then neither deserves blame or punishment, surely?
13.MURDEROUS MICK IN JAIL. TO READER: “SEE? I TOLDYOU I’M BLAMELESS!”
True, the “common sense” view is that someone like Murderous Mick deserves both blame and punishment. But it seems that “common sense” is just wrong about this.
But if no one ever deserves punishment, isn’t it always unfair to punish people? Wouldn’t it be unjust to punish Murderous Mick?
It seems it would!
Philosophy vs. “Common Sense”
This is a fantastic conclusion, of course. In fact, like me, you probably can’t make yourself believe the conclusion is true.
Still, is it rational to carrying on believing that we are free and that we do sometimes deserve punishment? Am I justified in believing these things?
It seems I’m not. The we-never-deserve-punishment argument does appear to show that no one is free, and that no one ever deserves to be punished. It does seem to show that “common sense” is wrong about that.
In philosophy you often come across arguments that contradict “common sense”. One of the most fascinating, and sometimes infuriating, things about philosophy is the way it can challenge what we all just take for granted.
Common sense has been wrong before, of course. It was once the “common sense” view that the Earth is stationary. Almost everyone thought it “just obvious” that the sun went round the Earth, not the other way round. But of course, all these people were mistaken. Science showed “common sense” to be wrong.
Perhaps, by showing that everything that happens physically is determined, science has also shown that “common sense” is wrong to think that we are free.
14.SCIENTIST TO AUDIENCE IN LECTURE HALL, POINTING TO EQUATIONS ON BOARD: “SO YOU SEE, I’M AFRAID COMMON SENSE IS WRONG”.
Often, when “common sense” views are challenged, people get very cross. That happened when scientists first showed that the Earth moves. They would shout “That’s just ridiculous! Of course the Earth doesn’t move. You’re just being stupid!” And they would stomp off in a huff.
15.ILLUSTRATE: BLIMPISH FIGURE MARCHING OFF GOING “PAH! OF COURSE THE EARTH IS STATIONARY, YOU IDIOT!”
I suppose that reaction is understandable. No one much likes having their most basic and fundamental beliefs challenged. It can be very uncomfortable to have someone come along and pick holes in what you have always taken for granted.
Still, the fact is that the really “stupid” people were those who blindly stuck with “common sense” even after they had been presented with overwhelming evidence that the Earth does move.
The same is true of someone who dismisses as “stupid” the conclusion that we’re not free solely on the grounds that this conclusion contrary to “common sense”.
Where do we go from here?
So we have a puzzle – a very famous puzzle – that many philosophers have struggled with over the years.
On the one hand, we all believe that we are free, and that we do sometimes deserve punishment for the bad things we do.
But, on the other hand, we have seen an argument that appears to show that we are mistaken about that. We aren’t free, and so we never deserve punishment.
So what should we believe? What do you think?
Faced with such a devastating philosophical argument, a defender of the “common sense” view has only one option. They must show that there is something wrong with the argument.
But if there is something wrong with the argument, then what is wrong with it?
Meet The Fates
Before we try to figure out what, if anything, is wrong with the we-never-deserve-punishment argument, let’s have a quick look at another, slightly different version of the view that we aren’t free.
The Ancient Greeks believed in the Fates.
16.ILLUSTRATE: INNOCENT, WAVING MIDDLE AGED COUPLE SPORTING T-SHIRTS SAYING “DICK FATE”, “JANE FATE” . CAPTION “THE FATES”.
The Fates were beings who laid out the course of your life, giving you no option about how things turn out. For example, if the Fates say you will be injured by a car next Wednesday, then you will. Try to avoid being injured if you want. But it will do no good. You can even stay in bed all day.
17.ILLUSTRATE: NERVOUS LOOKING PERSON IN BED.
Somehow or other, The Fates will get you.
18.ILLUSTRATE: AS ABOVE WITH DEMENTED-LOOKING JANE FATE DRIVING CAR THROUGH BEDROOM WINDOW. IT’S ABOUT TO HIT THE GUY IN BED.
Those who believe in this sort of fate are called fatalists. Fatalists believe that there is no point in trying to prevent things from happening. For example, a fatalist might say, “There’s no point wearing a seatbelt: if I’m going to die in a car crash then I am going to die in car crash – there’s nothing I can do about it. What will be will be.”
Now the reason I mention fatalism is that it’s very important not to muddle it up with determinism.
Fatalism says that our actions can have no effect. Do what you like: things will still turn out the same way.
Determinism, on the other hand, doesn’t deny that our actions can make a difference to how things turn out. It just denies that we can act other than how we do.
There’s no reason to suppose that fatalism is true. The Ancient Greeks might have believed in fate. But there’s no evidence that our actions will have no effect on how things turn out. Quite the contrary, in fact. Wearing a seatbelt really can save your life.
But it doesseem as if determinism is true. Science has revealed that the physical universe is governed by laws. And, being part of the physical universe, these laws apply to us as well. So we cannot do other than what we do in fact do.
Having got clear about the difference between determinism and fatalism, let’s take a closer look at the we-never-deserve-punishment argument.
Tom’s “proof” that he is free
Tom and Carol are sitting in The Magic Café here in Oxford. They often discuss philosophical puzzles over lunch and today they are talking about free will.
ILLUSTRATE: TOM AND CAROL EATING LUNCH AT THE MAGIC CAFÉ (WILL SUPPY ROUGH): CAROL HAS LASAGNE, TOM SALAD. BOTH HAVE A GLASS OF WATER. CAROL ALSO HAS SMALL PLATE WITH A BROWNIE ON IT.
Carol has just explained the we-never-deserve-punishment argument to Tom. But Tom is totally unconvinced. He points to Carol’s plate of vegetarian lasagne.
TOM: So you think that, even if I were to take your lunch, place it on the floor, and jump up and down on it, I would be entirely innocent and blameless? You think I would deserve not even one ounce of condemnation?
Carol looked up from her plate a little nervously.
CAROL: Er, yes. You’re not going to are you?
TOM: No. But what if I did? I can’t really believe you would think me blameless.
CAROL: Well, I would probably feel very cross. I admit that. But then I feel cross when my computer crashes or when my car won’t start. That doesn’t mean that I think my computer and car deserve blame and punishment for not working, does it? That doesn’t show that I believe they have free will.
TOM: No, I guess not. But still, it’s obvious to me that I am free. I can prove it.
CAROL: Okay, go ahead and prove it.
TOM: Very well. Right now, I am free either to raise my arm or not raise my arm.
Tom sat motionless for a moment, and then suddenly raised his arm.
19.[ILLUSTRATE: TOM RAISING HIS ARM.]
TOM: There, I raised my arm. But I was free not to raise it. I could have done either. So you see I am free. I am notnature’s puppet.
Has Tom really proved that he is free? No, as Carol now explains.
Carol’s water argument
CAROL: You may feelfree. But that doesn’t guarantee that you arefree. True, you may not know about the laws that compel you behave as you do. But just because you don’t know about them doesn’t mean that they aren’t there. They are there. That’s precisely what science has shown.
TOM: But look, sometimes I raise my arm and other times I don’t. So you see: I’m free to do either.
CAROL: But the fact that you sometimes raise your arm and sometimes don’t doesn’t show that you are free.
Carol pointed to the water in her glass.
20.ILLUSTRATE: GLASS OF WATER
CAROL: Look, sometimes water lies still like this. But sometimes it runs quickly in streams.
21.ILLUSTRATE: MOUNTAIN STREAM.
Sometimes it falls as rain or hangs in the air as a cloud.
22.ILLUSTRATE: RAINING CLOUD.
Does the fact that water behaves in these different ways on different occasions show that water is not governed by natural laws?
TOM: No. I guess not.
CAROL: Right. So there you are, then. The fact that you behave in lots of different ways doesn’t show that you aren’t in the grip of the same laws.
Tom scratched the back of his neck. It still seemed to him that, unlike the water in the glass, he was free to do his own thing.
TOM: But water behaves differently only because the circumstances in which you find it are different. Liquid water sometimes flows and sometimes doesn’t, but that’s because sometimes it’s on a slope and sometimes not. Water will always behave exactly the same way if the circumstances are exactly the same.
CAROL: That’s true.
TOM: But I don’talways behave in the same way, even when the circumstances are exactly the same. Yesterday we came into the Magic Café I ordered soup. Today I ordered salad. Yet the circumstances today are just the same as they were yesterday. So you see – I am free in a way that the water in that glass is not.
CAROL: No, you aren’t. There are subtle differences between how you are today and how you were yesterday. Your internal make-up is different today. Your brain chemistry is subtly different, for example. Different patterns of neurones are firing. There are all sorts of differences. It’s these differences that explain why you behave differently today, that explain why you made a different choice. If the situation today really were absolutelyidentical to the situation yesterday, right down to the very last atom, then you would have chosen soup today as well.
It seems Carol is right. It might seem obvious to you that you’re free. But on closer examination it’s not so obvious after all. In fact we still haven’t spotted anything wrong with the argument that we’re all Nature’s puppets.
The freedom of the soul
But Tom doesn’t give up easily.
TOM: I still believe I’m free. It seems to me that you have a much too narrow, scientific view of the universe. Yes, science is powerful. But there is more to we humans than science can ever explain.
CAROL: What do you mean?
TOM: I mean that each of us has a soul.
CAROL: A soul?
TOM: Yes. Your soul is your conscious mind, that part of you that makes choices and decisions.
CAROL: I see.
TOM: It is something outside the natural order. It’s not part of the physical universe at all.
CAROL: It’s a non-physical thing?
TOM: That’s right. It’s even capable of existing on its own, without any physical body.
Many religious people in the existence of souls, of course. They believe that the death of the physical body does not mean that end of the person. What’s essential to the person – their soul – can carry on. It is the soul that many Christians believe goes up to heaven after we die.
28.ILLUSTRATE: WINGED CLOUD DRIFTING UP FROM CORPSE ON TABLE.
On Carol’s view, a person is a physical thing. They are not separate from their body.
23.ILLUSTRATE:: PERSON, WITH TWO LABELS “PERSON” “BODY” AND ARROWS POINTING TO THE PERSON.
But on according to Tom, a person is a soul. The soul is something separate, something non-physical.
24.ILLUSTRATE: TOM’S VIEW: PERSON WITH LITTLE WINGED CLOUD WITH FACE ON ABOVE HEAD. “PERSON” WITH ARROW POINTING AT CLOUD. “BODY” WITH ARROW POINTING AT BODY.
But what have souls to do with free will? Tom explains.
TOM: Being non-physical, the soul is not controlled by physical laws. Being apart from the physical world means it can do its own thing. So it is free.
This is an ingenious suggestion. Has Tom explained how we can be free after all?
A problem with the soul theory
CAROL: But you haven’t given me any reason to suppose that souls exist, have you?
TOM: Well I suppose not. Not yet.
CAROL: And in any case, even if souls do exist, they still wouldn’t allow us to act freely.
TOM: Why not?
CAROL: Because our bodies are physical. So they arein the grip of the laws of nature. What theydo is determined in advance by how things were physically. But that means our bodies still can’t do anything other than what they do in fact do.
Tom raises an eyebrow.
TOM: I’m not sure I follow.
CAROL: Well, let’s suppose you are right and I am a non-physical soul. According to you, I’m free to decide either to take a bite of that cake or take a sip of that water.
25.ILLUSTRATE: CAROL LOOKING AT WATER AND CAKE ON TABLE IN FRONT OF HER.
I decide to take a sip of water. But if determinism is true, what happens to my body is already fixed by the laws of nature. If the laws of nature say that my arm will reach out and grab the cake, then it will, whatever I might happen to decide.
26.ILLUSTRATE: CAROL PICKING UP CAKE. WINGED CLOUD ABOVE HER HEAD HAS THINK BUBBLE: “BUT I WANTED THE WATER”!
So you, see, even if we do have souls and they arefree, that still wouldn’t give us any control over what our bodies did.
TOM: Oh. I see.
ALICE: In fact, if we had souls, they would be disconnected from our bodies, unable to have any effect on what they did. So, as we clearly can affect what our bodies do, it follows that we don’t have souls.
This is an interesting line of argument. If determinism is true, it really would seem to follow that we don’t have souls.
Is the brain an exception to the laws of nature?
But Tom is unpersuaded by Carol’s argument.
TOM: But you’re simply assuming that what your body does is fixed by the laws of nature plus how things are physically. But that’s not true. Your soul can come in and affect what’s going on physically.
CAROL: How does it do that?
TOM: It’s as if the soul and the brain are equipped with little transmitters and receivers.
27.ILLUSTRATE: SOUL AND BRAIN WITH RADIO DISHES SENDING SIGNALS TO EACH OTHER (DOTTED LINES?)
When I decide I want to raise my arm, my soul transmits to my brain a signal. That causes something to happen in my brain, which in turn causes electrical signals to be sent to my arm. That raises my arm.
CAROL: But that’s ridiculous! That would mean that something happens in your brain has no physical cause. Being caused by the signal sent from something non-physical – your soul – it would not be physically determined.
TOM: Exactly.
CAROL: But everyphysical event has a physical cause. That’s a law of nature.
TOM: Yes, generally speaking, physical events have physical causes. But there’s an exception to the rule: the human brain. Some things happen in the brain that don’thave a physical cause. Some of what goes on in the brain is caused by the soul – something non-physical.
CAROL: So the laws of nature apply throughout the entire universe, with one exception: the human brain?
TOM: Yes.
CAROL: What a load of unscientific tosh!
Tom’s explanation of how the soul and the body interact is certainly a lot to swallow. The suggestion that the laws of nature apply throughout the entire universe except for one place, the human brain, is pretty implausible. Why suppose that the laws of nature make an exception of the human brain?
“Acting freely means that if you had chosen to act differently, then you would have acted differently”
Still, even if determinism is true, Tom may yet be right that we are able to act freely. Let’s now turn to one of the most famous and interesting suggestions about how to defeat the we-never-deserve-punishment argument: compatibilism.
Compatibilism is simply the view that determinism and free will are compatible. It’s true that everything that happens physically is physically determined. But it’s alsotrue that we are able to act freely.
But why think that free will and determinism are compatible?
Well, asks the compatibilist, what do we ordinarily mean when we say someone “acted freely”? We mean this: that they would have done otherwise if they had chosen to.
Take Murderous Mick, for example. He acted freely. Why? Because he could and would have done otherwise had he chosen to. Suppose, for example, that instead of choosing to live a life of despicable cruelty, Mick had chosen to live a noble and generous sort of existence.
28.ILLUSTRATE: MICK IN SAINTLY POSE AND GARB (“ALL YOU NEED IS LOVE” BADGE?), SMILING SWEETLY AND HANDING OUT FLOWERS TO PASSERS-BY.
Had he chosen to live such a life, then he would have. Nothing would have prevented him. But he chose not to. He chose to lead a wicked life instead. It was his choice. So Mick’s wicked acts are his responsibility.
Mr Black, on the other hand, cannot be blamed for landing on Mr Brown. For Mr Black was forced out the window against his will. He couldn’t have avoided landing on Mr Brown, even if he had chosen to. He would land on Mr Brown anyway, whatever he might choose. So he didn’t act freely.
So that’s what we man by “acting freely”, according to the compatibilist. And now we come to the clever bit – notice that “acting freely” in this sense is compatible with determinism.
True, all our choices are determined. In principle, everything we do could have been predicted way in advance by scientists who knew all there was to know about what’s going on physically. But that doesn’t matter. We still act freely if we would have done otherwise had we chosen to.
Yes, I know we can’t choose otherwise. Given the laws of nature it’s impossible that Murderous Mick would choose anything other than what he did. But still, it’s still true that he would have done otherwise if he had chosen to. If had chosen to be good, then he would have been.
So, says the compatibilist, if that’s what we mean by acting freely”, then we can still “act freely” even if we are determined. And if we can “act freely”, then we dodeserve blame and punishment for what we do! Problem solved!
That, at least, is how compatibilists argue. But are they right?
What do you think?
The case of the hypnotist and the pineapple juice
I don’t think the compatibilist is right. To see why, let’s take a look at the strange case of the hypnotist and the pineapple juice.
This is Guy.
29.ILLUSTRATE: GOOGLY-EYED HYPNOTIZED GUY SITTING IN A CHAIR. HE IS HOLDING GLASS OF JUICE.
He’s been hypnotized.
30.ILLUSTRATE: CLOSE UP OF HIS EYES: WHICH ARE DOING THE HYPNOTIZED THING. HE’S SAYING “ANOTHER GLASS OF PINEAPPLE JUICE PLEASE!”
Guy is at hypnotist’s stage show. The hypnotist just got Guy and his girlfriend up on stage. Guy’s girlfriend revealed that one of the things Guy detests most is pineapple juice. He can’t stand the stuff. So, as a joke, the hypnotist hypnotized Guy into wanting to drink glass after glass of pineapple juice.
Guy is now back at his table, but the stage lights are still on him. He keeps on ordering more and more pineapple juice. The audience, who are watching Guy, think it’s hysterically funny.
31.BIG ILLUSTRATION: NIGHTCLUB, HYPNOTIST ON STAGE. PEOPLE SAT AROUND TABLES. TABLE AT FRONT IN SPOTLIGHT WITH GUY AND HIS (NASTY-LOOKING) GIRFRIEND. GUY IS CALLING OUT TO WAITRESS “AND ANOTHER PINEAPPLE JUICE PLEASE!”. LOTS OF EMPTY JUICE GLASSSES ALREADY ON HIS TABLE. AUDIENCE LAUGHING AT HIM.
Now ask yourself, when Guy continues to drink glass after glass of pineapple juice, does he act freely?
It’s pretty obvious, isn’t it, that Guy doesn’t act freely? Guy is helplessly in the grip of the hypnotist’s mesmeric powers. Guy might think he is making free choices. But he isn’t. It’s as if Guy is the hypnotist’s puppet.
32.ILLUSTRATE: PUPPET GUY (PINEAPPLE JUICE IN HAND) HANGING FROM BIG EVIL-LOOKING HYPNOTIST’S STRINGS.
We would say the same of a person that had been thoroughly brainwashed into wanting to do some bad thing. They might think they’re act freely. But someone else is pulling their strings.
33.ILLUSTRATE: BOND-LIKE SCENARIO IN WHICH BLOWFELD CHARACTER IS BRAINWASHING SOMEONE WITH SWIRLING WHEEL THINGY, SAYING “AND WHEN YOU NEXT HEAR THIS SONG, YOU WILL FEEL AN OVERWHELMING DESIRE TO SHOOT THE PRESIDENT!” “AGADO, DO, DO, PUSH PINEAPPLE….…..” COMING FROM LOUD SPEAKERS.
But here’s the problem for compatibilism. According to the compatibilist, someone acts freely if they would do otherwise if they chose to. Now it’s true that Guy would do otherwise if he chose to. If he were to choose to stop drinking pineapple juice, he would stop.
So, according to the compatibilist, Guy acts freely! But then he can be fairly blamed for making himself sick!
34.GUY OVER TOILET BOWL, PUKING: GIRLFRIEND IS SAYING “IT’S YOUR OWN FAULT – YOU SHOULDN’T HAVE DRUNK ALL THAT PINEAPPLE JUICE!”
Yet it’s clear, isn’t it, that poor old Guy is not acting freely. It would be quite wrong to blame Guy for making himself ill.
But then the compatibilist’s definition of “acting freely” must be mistaken.
So why isn’t Guy acting freely?
The problem is that while it’s true that Guy would do otherwise if he chose to, he can’t choose otherwise. True, he chose to keep on drinking pineapple juice. But he was forced to make that choice by the hypnotist.
But of course, if determinism is correct, the same is true of all of us, all the time. None of us ever makes a free choice. Our choices are determined, just as Guy’s was.
But then it does seem to follow that we can’t act freely. So we never deserve punishment.
Why it may still be right to punish Mick
Up to now, we haven’t spotted anything wrong with the we-never-deserve-to-be-punished argument.
So let’s suppose, for the sake of argument, that it’s true that we can’t act freely and so never deserve punishment. Does it then follow that it is a mistake to punish murderous Mick for what he did?
Should we release him?
35.ILLUSTRATE: MICK IN PRISON, SAYING “I’M BLAMELESS! SO YES, YOU SHOULD RELEASE ME!”
Actually, it doesn’t follow. Even if Murderous Mick doesn’t deserve punishment, there are still be good reasons why we should send him to prison.
Here are three.
First, punishment may have a deterrent effect. If we punish people for committing crimes, then people may be less likely to commit those crimes. If so, then here is a good reason for punishing criminals anyway, whether or not they deserve it.
Second, by sending a criminal to prison we may be able to help them. Some prisons aim to rehabilitateprisoners, so that they are less likely to offend again.
Third, by locking murders like Mick up, we can prevent them from murdering again.
So there are still good reasons why we should lock Murderous Mick up: deterrence, rehabilitation and prevention.
36.ILLUSTRATE: MICK IN PRISON, VOICE FROM SIDE “SEE – THERE ARE STILL GOOD REASONS WHY WE SHOULD LOCK YOU UP”. MICK: “OH DEAR”
Of course, none of this is to say that Mick does deserve to be locked up. It’s just that it seems to be a good idea to lock him up anyway, whether or not he deserves it.
The puzzle
In this chapter, we have looked at a famous philosophical puzzle: the puzzle is raised by the we-never-deserve-to-be-punished argument. Philosophers call it the puzzle of free will.
Philosophers have been struggling with the puzzle for hundreds of years. Even today, at universities across the world, philosophers and scientists are still trying to solve it.
37.THREE ACADEMICS WALKING IN OXBRIDGE QUADRANGLE: ONE SAYS: “CAN WE ACT FREELY?” OTHER SAYS “OF COURSE WE CAN!” THIRD REPLIES “BUT HOW, IF DETERMINISM IS TRUE?”
The puzzle is this: it seems that, if determinism is true, then we can’t act freely. But then it appears that none of us ever deserves punishment for what we do.
Yet this is absurd, isn’t it? Of course we can act freely. Of course we sometimes deserve to be punished for what we have done. Don’t we?
What do you think?
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