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Author Topic:   Biology is Destiny?
Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 91 of 129 (642379)
11-28-2011 3:36 AM
Reply to: Message 87 by Chuck77
11-28-2011 12:29 AM


Re: Biology does not dismiss free will
BTW, im recently getting over a cold and am not responsible for these posts. No one is, actually they don't even exist.

Ok, good - you're beginning to get the point. Now try reading this again. I've shortened it to a single sentence for the hard of reading.

"Nothing puts the brakes on their behavior. They are always in trouble," he said. "If their brain wants something, they take it."

I know you want this to be really black and white - knowing what's right and what's wrong is really simple isn't it? Here's another one of those inconvenient quotes from the original post.

"Studies suggest that when damage is done to the frontal lobe before 18 months, people never learn right from wrong," Swerdlow said.

So brain damage before 18 months disables free will, how can that be if you think we all have the ability to know right from wrong as - I'm guessing - a god given thing?

Two sentences now, try to concentrate.

"When damage is done after that time, people can learn right from wrong but they can't control their impulses. There is no longer regard for long-term consequences, only short-term gratification."

IF we accept your simple proposition that Fred's knowledge of right and wrong hadn't changed at all but his decisions to act on it had, where has his free will gone? He didn't choose to get the tumour, he didn't choose to have his brain state change so that he couldn't control his impulses and he didn't choose to have pedophilia.

In order to be culpable you have to fully know what's right and wrong and have the real ability to choose. If you steal from a shop because someone has a gun to your head, you're making a choice, but not an immoral one.


Life, don't talk to me about life.

This message is a reply to:
 Message 87 by Chuck77, posted 11-28-2011 12:29 AM Chuck77 has not yet responded

  
Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 92 of 129 (642380)
11-28-2011 4:40 AM
Reply to: Message 87 by Chuck77
11-28-2011 12:29 AM


Re: Biology does not dismiss free will
Im just glad you're not a Judge or a Governor. We'd all be in trouble.

This must be groundhog day. You can't be convicted of a criminal offence if you're found to be incapable of free moral choice. That's the law and judges apply it.

Here it is again:

Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged ....... As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault.

Fred would not have been convicted had he raped someone - but he would have had his liberty removed until such time as society deemed him safe. In other words he would be a patient not a criminal.


Life, don't talk to me about life.

This message is a reply to:
 Message 87 by Chuck77, posted 11-28-2011 12:29 AM Chuck77 has not yet responded

Replies to this message:
 Message 95 by NoNukes, posted 11-28-2011 5:29 PM Tangle has responded
 Message 97 by Dr Adequate, posted 11-28-2011 6:42 PM Tangle has responded

  
Straggler
Member
Posts: 10332
From: London England
Joined: 09-30-2006


Message 93 of 129 (642382)
11-28-2011 5:48 AM
Reply to: Message 85 by Chuck77
11-28-2011 12:11 AM


Re: Biology does not dismiss free will
Straggler writes:

What is this 'non physical thing' you speak of?

Chuck writes:

Free will.

Are you suggesting that it is possible to have freewill without a physical brain?

If we removed your brain would you still have freewill?


This message is a reply to:
 Message 85 by Chuck77, posted 11-28-2011 12:11 AM Chuck77 has not yet responded

  
Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 94 of 129 (642385)
11-28-2011 7:27 AM


Review Paper
For those interested, there's quite a readable review paper on the neurobiology of moral behaviour here:

http://psych.umb.edu/...kaldy/courses/psy641/pdfs/Mendez.pdf

It seems that the idea of morality as a sixth sense is growing with the identification of a neuromoral network within the brain:

• Humans have an innate moral sense based in a neuromoral network centered in the ventrome- dial prefrontal cortex and its connections.
• The neuromoral network works through moral emotions and moral drives, such as the avoidance of harm to others and the need for fairness and punishment of violators; it includes self-other conjoining processes, such as Theory of Mind and empathy, which also involve the ventrome- dial prefrontal cortex.
• Disorders of this region, such as focal lesions or frontotemporal dementia, disturb personal, intrinsic moral emotions and decision-making.
• Clinicians must recognize and manage “acquired sociopathy” and other dysmoral behaviors asso- ciated with disorders of the neuromoral network.
• Patients with these disorders pose a special problem for forensic neuropsychiatry.

Life, don't talk to me about life.

  
NoNukes
Inactive Member


Message 95 of 129 (642428)
11-28-2011 5:29 PM
Reply to: Message 92 by Tangle
11-28-2011 4:40 AM


Re: Biology does not dismiss free will
Amateurs make poor lawyers. You've completely misunderstood mens re.

All that is required for the mens re element of a crime to be satisfied is that the defendant intended to perform the act. Whether or not the defendant appreciated that the act was wrong, or understood all of the consequences of his action are generally not relevant (with some subtle exceptions that don't apply here) to meeting mens re.

Added by edit:

My post is somewhat simplistic because some offenses require a lesser mental state than intent, but the point remains that lacking moral choice does not mean that the mens re element for a crime is not met.

If a person does not have the mens re, then the person did not commit an offense. Of course a person cannot be liable or culpable for an offense that he did not commit.

Separate from the question of guilt is the question of culpability which can turn on the mental state of the defendant. The standard varies from state to state, and in some states a person incapable of making a moral choice might still be legally responsible for his actions.

It is possible that a particular mental derangement might make make a defendant incapable of possessing mens re but being incapable of free moral choice would not.

Edited by NoNukes, : No reason given.

Edited by NoNukes, : Clarification on intent


This message is a reply to:
 Message 92 by Tangle, posted 11-28-2011 4:40 AM Tangle has responded

Replies to this message:
 Message 96 by Tangle, posted 11-28-2011 6:20 PM NoNukes has responded

  
Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 96 of 129 (642431)
11-28-2011 6:20 PM
Reply to: Message 95 by NoNukes
11-28-2011 5:29 PM


Re: Biology does not dismiss free will
nonukes writes:


You've completely misunderstood mens re.

I think not, as you say yourself, mental derangement can make a defendent incapable of possessing mens re(a) - which is exactly my point. If a disease can be shown to have removed a person's ability to act in a moral way, he can not be culpable in law.

In the UK at least, Fred would have been fairly quickly judged incapable of even making a plea, let alone having to make a defense of diminished responsibility or higher, one glance at the size of the tumour in his head and medical report would be enough to have him sectioned and treated.


Life, don't talk to me about life.

This message is a reply to:
 Message 95 by NoNukes, posted 11-28-2011 5:29 PM NoNukes has responded

Replies to this message:
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 Message 99 by NoNukes, posted 11-28-2011 10:38 PM Tangle has responded

  
Dr Adequate
Member (Idle past 39 days)
Posts: 16112
Joined: 07-20-2006


Message 97 of 129 (642433)
11-28-2011 6:42 PM
Reply to: Message 92 by Tangle
11-28-2011 4:40 AM


Mens Rea
NoNukes is right, mens rea is a much narrower concept than you seem to think it is.

A good example of someone with no mens rea would be someone who drives while drunk because he is unaware that some malicious person has spiked his drink with alcohol. He could properly say that he had no mens rea.

On the other hand, consider someone who has a couple of pints and then drives under the false impression that the legal limit is higher than it actually is. This person possesses mens rea, because even though he had no intention to commit a crime, he possessed the intention to do the thing which is criminal, and this is all that is required for mens rea.


This message is a reply to:
 Message 92 by Tangle, posted 11-28-2011 4:40 AM Tangle has responded

Replies to this message:
 Message 100 by Tangle, posted 11-29-2011 3:10 AM Dr Adequate has responded

  
Dr Adequate
Member (Idle past 39 days)
Posts: 16112
Joined: 07-20-2006


Message 98 of 129 (642434)
11-28-2011 6:47 PM
Reply to: Message 96 by Tangle
11-28-2011 6:20 PM


Re: Biology does not dismiss free will
I think not, as you say yourself, mental derangement can make a defendent incapable of possessing mens re(a) - which is exactly my point. If a disease can be shown to have removed a person's ability to act in a moral way, he can not be culpable in law.

In the UK at least, Fred would have been fairly quickly judged incapable of even making a plea, let alone having to make a defense of diminished responsibility or higher, one glance at the size of the tumour in his head and medical report would be enough to have him sectioned and treated.

But having diminished responsibility is not the same as having no mens rea, which is a much more specific concept than you seem to think it is.


This message is a reply to:
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NoNukes
Inactive Member


Message 99 of 129 (642444)
11-28-2011 10:38 PM
Reply to: Message 96 by Tangle
11-28-2011 6:20 PM


Re: Biology does not dismiss free will
I think not, as you say yourself, mental derangement can make a defendent incapable of possessing mens re(a) - which is exactly my point. If a disease can be shown to have removed a person's ability to act in a moral way, he can not be culpable in law.

Not quite correct.

Some mental derangements can affect mens re. But in particular, a lack of a moral compass is does not have that effect. If your reasoning does not allow for this, then it is wrong. Further, I'm absolutely sure that US and UK law are identical on this point as we inherited this bit of common law from you guys.

If a disease can be shown to have removed a person's ability to act in a moral way, he can not be culpable in law.

In some jurisdictions, yes. But not because of a lack of mens re.

For example, a person who knows that a gun can make a hole in a man's head resulting in death, but does not appreciate that doing so is wrong can possess the mens re to commit murder.

On the other hand if a persons derangement makes him think that Bob is a reptile, then the person cannot have the requisite mens re to murder Bob.

In some jurisdictions, the lack of moral compass may allow the person to escape punishment despite having met the elements of a crime (including mens re).

In other jurisdictions lacking a moral compass would not be sufficient to escape punishment. In the US, every state picks its own standard, and the modern trend is to make if increasingly difficult to use insanity as a defense.

Which brings me to some reasons why the distinction between mens re and the insanity defense is significant. In the US and in the UK, mens re is an element of the crime that the state must prove beyond a reasonable doubt. On the other hand an insanity defense must be proven by the defendant. The defense has to warn the state sufficiently far in advance of trial that it intends to prove insanity. On the other hand, it is always in season to dispute the state's evidence regarding mens re.

In the UK at least, Fred would have been fairly quickly judged incapable of even making a plea

That doesn't address the issue at all. There are many possibilities for avoiding punishment for a crime and only a few of them deal with mens re.


This message is a reply to:
 Message 96 by Tangle, posted 11-28-2011 6:20 PM Tangle has responded

Replies to this message:
 Message 102 by Tangle, posted 11-29-2011 4:08 AM NoNukes has responded

  
Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 100 of 129 (642458)
11-29-2011 3:10 AM
Reply to: Message 97 by Dr Adequate
11-28-2011 6:42 PM


Re: Mens Rea
Dr Adequate writes:

A good example of someone with no mens rea would be someone who drives while drunk because he is unaware that some malicious person has spiked his drink with alcohol. He could properly say that he had no mens rea.

On the other hand, consider someone who has a couple of pints and then drives under the false impression that the legal limit is higher than it actually is. This person possesses mens rea, because even though he had no intention to commit a crime, he possessed the intention to do the thing which is criminal, and this is all that is required for mens rea.

this may send us of down a long and deep rabit hole, but never mind, it looks quite interesting down there.

You've picked a bad example. Drunk driving is a law derived from statute rather than common law and is a strict liability offence [in the UK at least]. This means that the prosecution only has to prove the act (actus rea) - in this case that the driver exceeded a blood or breath level and was in control of the vehicle at the time - for the case to be proven. The defense can then offer 'reasonable excuse' which may or may not reduce the punishment. A reasonable excuse would be drink spiking if accepted as mitigation.

The important point is that the excuse does not allow a not guilty plea, whereas a mens rea defence of most common law offenses would. In our example, Fred would be convicted of drunk driving but not of murder (or at least he would have a possible defense.)

In your second example, mens rea as you describe it is not applicable. The defendant Is merely ignorant of the law, which is no defense.


Life, don't talk to me about life.

This message is a reply to:
 Message 97 by Dr Adequate, posted 11-28-2011 6:42 PM Dr Adequate has responded

Replies to this message:
 Message 101 by Dr Adequate, posted 11-29-2011 3:38 AM Tangle has responded

  
Dr Adequate
Member (Idle past 39 days)
Posts: 16112
Joined: 07-20-2006


Message 101 of 129 (642459)
11-29-2011 3:38 AM
Reply to: Message 100 by Tangle
11-29-2011 3:10 AM


Re: Mens Rea
You've picked a bad example. Drunk driving is a law derived from statute rather than common law and is a strict liability offence [in the UK at least].

I'm not in the UK.

Anyway, it suffices as an example of the sort of thing that would constitute having no mens rea, even if in some jurisdictions that does not constitute a defense. In the UK it would still be true that he had no mens rea, it just wouldn't matter.

In your second example, mens rea as you describe it is not applicable. The defendant Is merely ignorant of the law, which is no defense.

That's what I said.


This message is a reply to:
 Message 100 by Tangle, posted 11-29-2011 3:10 AM Tangle has responded

Replies to this message:
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Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 102 of 129 (642462)
11-29-2011 4:08 AM
Reply to: Message 99 by NoNukes
11-28-2011 10:38 PM


Re: Biology does not dismiss free will
nonukes writes:


Some mental derangements can affect mens re. But in particular, a lack of a moral compass is does not have that effect. If your reasoning does not allow for this, then it is wrong.

Ok, as we've decided to have a hair splitting legal discussion instead of a science based one and because it's what Stephen Fry calls QI [Quite Interesting] I'll clarify.

If the lack of moral compass can be shown to be so severe that the defendant did not and could not have known what he was doing (this would normally be a result of demonstrable physical brain damage or disease), he can't be found guilty of (most) common law crimes. This is because of the common law requirement to prove the intent of the act as well as act itself, beyond reasonable doubt.

Strict liability crimes are an exception - see response to Dr Adequate above.

Further, I'm absolutely sure that US and UK law are identical on this point as we inherited this bit of common law from you guys.

I can't answer for whatever mess you guys made of our laws once you got your excessively punitive hands on them......


Life, don't talk to me about life.

This message is a reply to:
 Message 99 by NoNukes, posted 11-28-2011 10:38 PM NoNukes has responded

Replies to this message:
 Message 104 by NoNukes, posted 11-29-2011 8:56 AM Tangle has responded

  
Tangle
Member
Posts: 8200
From: UK
Joined: 10-07-2011
Member Rating: 4.6


Message 103 of 129 (642464)
11-29-2011 4:42 AM
Reply to: Message 101 by Dr Adequate
11-29-2011 3:38 AM


Re: Mens Rea
Dr Adequate writes:


I'm not in the UK.

That's no defence but I'm sorry for your loss ;-)


Anyway, it suffices as an example of the sort of thing that would constitute having no mens rea, even if in some jurisdictions that does not constitute a defense. In the UK it would still be true that he had no mens rea, it just wouldn't matter.

Well, in general, I agree.

All I've ever been saying is that state of mind is a possible defence in law and that the defence comes from the common law concept of mens rea with regards to the various forms of criminal intent - knowingness and premeditation, negligence, recklessness and so on.


Life, don't talk to me about life.

This message is a reply to:
 Message 101 by Dr Adequate, posted 11-29-2011 3:38 AM Dr Adequate has not yet responded

  
NoNukes
Inactive Member


Message 104 of 129 (642478)
11-29-2011 8:56 AM
Reply to: Message 102 by Tangle
11-29-2011 4:08 AM


Re: Biology does not dismiss free will
Ok, as we've decided to have a hair splitting legal discussion instead of a science based one and because it's what Stephen Fry calls QI [Quite Interesting] I'll clarify.

Didn't you deign to lecture someone on mens re? Yet correcting the errors in your legal pronouncements is somehow hair splitting? I don't accept that.

Lacking a moral compass and acting without knowing what he was doing are two separate ideas, and I've already provided examples to illustrate the difference. Lacking a moral compass does not, in and off itself negate mens re.

And again your statements about proving intent seem to map to all mental related things to mens re and thus are wrong.

I can't answer for whatever mess you guys made of our laws once you got your excessively punitive hands on them

You don't have to answer for that. I've done that for you.

If you don't know the answer to some legal point, why argue with someone who quite obviously knows more about the subject than you without doing some homework? US and UK common law use essentially the same approach to mens re.

The short answer is as Dr. Adequate explained it. Mens re does not encompass everything legally relevant about the defendant's mental state.


This message is a reply to:
 Message 102 by Tangle, posted 11-29-2011 4:08 AM Tangle has responded

Replies to this message:
 Message 106 by Tangle, posted 11-29-2011 12:52 PM NoNukes has responded

  
NoNukes
Inactive Member


Message 105 of 129 (642479)
11-29-2011 9:08 AM
Reply to: Message 101 by Dr Adequate
11-29-2011 3:38 AM


Re: Mens Rea
In the UK it would still be true that he had no mens rea, it just wouldn't matter.

This is probably not the correct analysis. Mens re is specifically addressed to one or more statutory elements of the crime. If the elements of the crime are different in the US and UK, then the mens re is going to be different and apply to a different actus reus. If a crime is strict liability, there is no mens re requirement.

I find it difficult to believe that drunk driving is completely a strict liability crime in the UK, although I may be wrong. But if your buddies were to pick up your passed out drunk body off the sofa, dump it into a car, and the push your car down the highway, surely you could not be said to have the mens re to operate a vehicle while drunk if all you did was step on the brake and steer the car to the curb.

But I don't know for sure and I'm not going to check.


This message is a reply to:
 Message 101 by Dr Adequate, posted 11-29-2011 3:38 AM Dr Adequate has not yet responded

Replies to this message:
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