Who's in Charge?
California Lawyer

Who's in Charge?

Free Will and the Science of the Brain

December 2012

Do I have free will, or is what I do determined by heredity and circumstance? Did the chain of causation that began with the Big Bang and wound its way through the rise of self-replicating proteins, the emergence of land life, the fall of Rome, and my ancestors' migration to America, make it inevitable that I would be sitting right here right now, typing this paragraph? Don't I have the freedom to say, "The hell with it, I'm going to watch the Lakers"? Or is my free will an illusion? Is there even a "me" who sits and thinks about these questions?

Michael S. Gazzaniga, author of Who's in Charge?, writes that neuroscience has recently come down on the deterministic side of these questions. His credentials are impeccable: president of the Cognitive Neuroscience Institute, founding director of the MacArthur Foundation's Law and Neuroscience Project, director of the SAGE Center for the Study of the Mind at the UC Santa Barbara.

Gazzaniga is a classic materialist, what philosophers now call a physicalist. His thesis is as follows: The physical processes of the brain generate the mind. The brain is under genetic control, with refinements made by epigenetic factors (nongenetic factors that change the behavior of genes) and activity-dependent learning. "Consciousness" is not a single, generalized process, but instead a number of specialized systems and disunited processes, located in various parts of the brain.

These processes are integrated by the "interpreter," a left-hemisphere process that applies post-hoc explanations for various phenomena. The interpreter is the conscious process that infers.

Of course, what all this implies is that the feeling there must be a me in charge of the brain is an illusion. Gazzaniga calls this the "homuncular problem." Indeed, free will is an illusion. "Today," the author writes, "we know we are evolved entities that work like a Swiss clock."

The intersection of neuroscience and law is obvious. "As neuroscience comes to an increasingly physicalist understanding of brain processing," Gazzaniga writes, "it is beginning to challenge some people's notions about criminal behavior and what we should do about it." In other words: Whom do we blame in a crime, the person or the brain?

This is decidedly not a question likely to gain much traction in today's political climate. The current dominant mode in criminal justice is retribution. And though the notion that if one has no control over one's determinist brain, one doesn't deserve punishment is a retributivist argument, the retributivists aren't going to accept the "no control" premise. Philosophers have long reconciled free will and determinism by defining free acts as uncoerced (as opposed to uncaused) acts. If you could have done otherwise had you chosen to do so, then you acted out of free will and should be held responsible, never mind that your choice was determined. This position is known as "soft determinism," or compatibilism.

Gazzaniga's own position is a restatement of compatibilism. "My contention is that ultimately responsibility is a contract between two people rather than a property of a brain," he writes, "and determinism has no meaning in this context." He analyzes responsibility under the philosophical rubric of duty, that is, there must be one who owes, and one to whom it is owed, and we can chose to act accordingly - or not. "Criminals can follow the rules," he writes. "They don't commit crimes in front of policemen. They are able to inhibit their intentions when the cop walks by. They have made a choice based on their experience. This is what makes us responsible agents, or not."

Ben Pesta is a white-collar and criminal defense lawyer in Century City.

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