The purpose of writing this essay is to point out how an ancient faulty framing of the question of free will versus determinism has had far-reaching, detrimental consequences for the American justice system. By faulty framing I mean framing the question so that it supports the concept of De Jure free will. De Jure free will is necessary to underpin and justify the way our justice system works. It was an underlying assumption of the Constitution of the United States of America. De Jure free will shall be placed in contrast to De Facto free will. When we address De Facto free will, we enter the philosophical debate and its age old conundrums. We also enter into the contemporary psychological debate regarding free will which has been subjected to psychologically testable hypotheses that favor deterministic explanations for human behavior, particularly ostensive choice behavior. The nature of these debates will be addressed first, next the consequences for holding the De Jure view in the modern world; followed by a proposed alternative view or way of framing the question of free will; and finally a consideration of what viable alternatives there may be to the structure of the current justice system.

The Free Will versus Determinism debate is stuck in the Zeitgeist of Western Nations’ cult of the individual. What I mean by this is that our understanding of and explanations of human behavior can only be found by studying the individual person, separate from the levels of external structures and systems within which the person exists. Some schools of thought consider the person’s life history as an external factor in explanations of current behavior. Life histories are not and cannot be used to excuse persons from responsibility for their illegal behavior and its consequences. Some schools of psychological thought will only consider currently observed behavior or recorded patterns of observed behavior in their research. These schools of thought are focused on De Facto free will. Neither of these schools of thought will oppose and by default sanction using the concept of choice in a court of law in the form of De Jure free will. Choice, being a mental phenomenon, is quite unobservable. De Facto free choice (an alternative way of saying free will) is highly disputed in philosophy. Outside of philosophy, Facto free choice is the crux of the matter when considering the commission of harmful or criminal acts before a court of law. The point of all of this is that De Jure free will, and not De Facto free will, is necessary in order to hold individuals responsible and accountable for their behavior so that the justice system can convict an individual of guilt for an act that is judged to be criminal and to legitimize punishment for the act. If all of this seems confusing, it is because it is, in fact, a confused state of affairs.

The Free Will versus Determinism debate has gone on for thousands of years and continues a tradition of going nowhere. It is a philosophical conundrum. A major issue in American jury trials is that the defense pleads De Facto free will and offers exculpatory explanations for the commission of a criminal act. On the other hand, the prosecution offers a De Jure perspective on free will that says, regardless of the role of conditions in person’s past or destabilizing or uncontrollable predisposing conditions of their genetic code or brain chemistry in determining the accused behavior, they, nevertheless, had the freedom to choose not to commit the act. The positions or assumptions of the defense and prosecution are irreconcilably, philosophically incompatible. The two are operating in completely different semantic universes. Perhaps, for thousands of years, at least as far back as Plato, debaters have framed the question wrongly and thus perpetuated this fatefully fruitless conceptual and semantic combat.

I am proposing an alternative to this conundrum. This alternative is to switch to the perspective of ‘structuralism’ which looks at external structures integrally coupled with the unobservable inner processes of the mind. These internal processes of the mind, which have been ‘erroneously discarded or neglected’ for the last century, I rename the processes of Intentionality. From the structuralism perspective, it becomes clear that Free Will has held its ground as a debated issue and in court because it has been an indispensable foundation of the American Judicial system since the writing of the Constitution. I have referred to this outdated, dysfunctional, obsolete conception of Free Will as De Jure Free Will. This analysis will show that De Jure Free Will can be seen as a primary causal factor that has given rise to a vast complex of institutions perpetrating and accelerating needless enormous costs and harm to our citizenry. These developments in the justice system and related institutions have been disastrously counterproductive for the espoused mission of justice held by our forefathers and everyone involved in the justice system since that time. The mission has always been that we promote and maintain the rights of the individual to a fair trial and a safe, secure, and crime free society. On the other hand, the traditional view of De Facto Free Will had been the exclusive territory of ontological philosophy. De Jure free will has been the prerogative of the philosophy of law and justice. For the last century, psychology has, for the most part, avoided experimentally studying free will since it was deemed an unobservable, inner mental process. The philosophy of science and particularly the science of psychology has held that only what can be observed can be experimentally tested.

This state of the argument is a serious dilemma for the justice system. If philosophers cannot agree and resolve the question of freewill and if psychologists cannot test to determine its existence, the justice system is left in eternal suspense with respect to the rationale for its pronouncements of responsibility and guilt.

Here are examples of what the justice system is faced with. If there is no free will, if persons do not have the capacity to freely choose, how can a person be held responsible and liable? Is there responsibility without free will? Is there liability without free will? The answer is: logically speaking, no. A person could be made to pay for their ‘accidents’ but they could not be judged guilty. Without a belief that responsibility or liability is legitimate, how can persons be judged, in court, to be responsible and guilty or liable for their acts? How can a person be punished for a criminal act if they could not have freely chosen an alternative? If a person cannot freely choose, are they not a mere automaton, a mechanical, soulless machine? If persons cannot freely choose and are not responsible for their acts, how can they be reformed, or corrected, so as to not choose a criminal act in the future? What point would there be to punishment or correction? Would not a judge’s enjoining the guilty to behave better or forbidding them to behave badly in the future be futile? Would this not simply be empty, rhetorical raving on the part of the judge? Without free will, would there not be little or no hope of compliance with the judge’s mandates by the convicted? In fact, when looked at objectively, this is exactly the way the justice system’s efforts to influence, reform, or control appear to be. The courts routinely reenact this hollow, dramatic sham. The behavior of the convicted seldom seems the least bit affected, despite their oft times dramatic pretensions to reform.

So, what does the justice system do in the face of its impotence? It simply repeats its rhetorical command with greater emphasis or threats of more dire consequences! Do they not exact increasingly more harsh punishments only to repeatedly see that it is of no avail? Yes, in fact that is the way the system works, or rather, does not work! Politicians, our esteemed law makers, nevertheless, collaborate with the courts in this farce as, during election seasons, they inanely bray to their ignorant constituents and supporters, ‘I am for Law and Order’ and ‘I will be the toughest on crime’ and so forth. Justice needs no help in becoming its own travesty.

But what of the individual citizen’s reaction to the dilemma? It could seem odd, to some erudite philosophers who espouse a deterministic view of mankind, that people insist that they have free will. Of course, people are not ordinarily entering the arena with philosophy or psychology. They are not aware or the distinction between De Jure and De Facto free will. People insist that they have free will because they ‘know’, in the sense that they have an implicit belief, that they make free choices. They ‘know’ that their choices are not made as a result of controlling external, or physiological, forces of which they are unaware. They ‘know’ that they are not moved to choose by unknown motivations. They ‘know’ that they choose and they want to feel that they themselves alone were the authors or agents of these choices.

Typically, even offenders, when, without the influence or presence of their attorney, they are told that their criminal act was the result of forces in the situation causing them to so act, they will protest that that is not true and that they made the decision, they were the sole determiner of their act. On the other hand, in court and in front of the judge and prosecutor and with their attorney present, they answer the charge of freely choosing to commit the criminal act with denial. They resort to insisting that it was forces in the situation, forces beyond their conscious control, causing them to so act. The job of the prosecutor is to prove that it was a voluntary act. The job of the defense is to prove that it was an involuntary act or an act without malicious intent. The point is, with the exception being in a court room, or similar type of setting, the assertion of situational (deterministic) explanations of one’s behavior is offensive to individuals. This primitive, revered belief in one’s own free will plays into the hand of the justice system, particularly prosecutors. The public will almost universally denounce the accused claims of situational determinants of their behavior as explanations as disgraceful excuses and mere attempts to avoid responsibility. Almost everyone seems to insist that people should accept responsibility for their behavior. In other words, the public unequivocally affirms the existence of the common notion of freewill, and therefore De Jure free will.

As was suggested earlier, a trial is an adversarial system. In this sense, trials are like football games only they use words instead of body contact. Prosecutors and defense attorneys square off with each trying to win. They both have to present evidence for their side, defense presents absolving evidence and prosecution presents incriminating evidence as to whether or not the accused committed the offense. Typically they oppose each other on the issues of opportunity and motive to commit the crime. Motive, of course entails the free will issue with the defense trying to prove that if the accused clearly seems to have committed the offense, they did involuntarily of at least without malicious intent. The prosecution must try to prove without reasonable doubt that the act was voluntary and at the worst with malice of forethought. In the course of their battle, they will typically invoke conclusions from reputable research that support or undermine theories of determinism, forces beyond their control, extenuating circumstances, and the like.

During the trial, one strategy the defense may use is to claim the accused has or was under the influence of some form of mental or emotional illnesses. If they invoke a diagnostic label from the psychiatric DSM Classification system, the judge will not accept the label as an explanation of the cause of the offense. The defense may bring in experts in psychiatry or psychology to describe the symptoms and explain their causative influence. The prosecution objects. The prosecution will insist that the defense prove mental incompetence and lack of knowledge of right and wrong. This is called the McNaughton rule. This is a stringent test and is seldom accepted. The prosecution insists that regardless of the psychiatric label, the accused still not only knew right from wrong but (this is where De Jure free will enters) could have acted differently and had the choice to not commit the criminal act. The defense cannot prove the contrary. Unless the jury is sympathetic to the defendant, the arguments of the defense that the accused could not have acted differently will not be heeded by the jury as contributing to a verdict that is beyond reasonable doubt. The best that the defense can hope for is that mitigating circumstances in the commission of the crime will be taken into consideration in the assignment of the degree of guilt in their verdict and especially in the considering severity of punishment in sentencing phase of the trial. Therefore, trials remain stuck with the age old concept of De Jure free will and its affect on the process and outcome of trials.

The ancient philosophical debate over Free Will versus Determinism will now be shown to be a philosophically bogus, dead-end issue. An alternative way of framing the question must be set forth. Since it seems apparent that no one can determine whether a person made a choice exercising their free will yet so much hangs in the balance based on this assumption we must attempt a new approach to this question. Instead of just looking at a person and asking the question as to whether they can exercise free will in a million different ways, why not frame the question differently?

Psychology and the philosophy of science have held that there is no way to know or experimentally test what is going on inside a person’s head. Yet, in the second half of the twentieth century, the linguist Noam Chomsky and the psychologists coming after him developed methods to test hypotheses about these mental processes that are not directly observable. Chomsky did this with an approach called structuralism. He set up propositions stating that language was produced by young children by grasping elementary rules of language and subsequently built upon these rules until they were eventually as proficient in speaking their native language as the adults around them. They did this through a process of continuous communicative interaction with the adults. Adults utter simple sentences according to the rules of the language and the children quickly grasp the underlying rule and reproduce new sentences based upon the rule. The experiment hypothesized that children would recognize sentences that were incorrect or did not obey the elementary rule and could even rephrase the sentence correctly in accord with the rule. Since these initial experiments were successful, a whole new field of psycholinguistics developed based on Chomsky’s structuralism theory.

The Gordian-Knot locking inner mental processes out from experimentation had been cut. Extending this breakthrough from linguistics to experimental studies of inner intentional processes or intentionality, the way was paved for redefining free will and recasting the free will versus determinism debate. Instead of studies the way rules of language were learned and operated inside the mind, the focus shifted to delineating what the processes of intentionality were and the sequential paths they followed during an intentional act. Casting out obsolete philosophical terms like ‘free will’, this new structuralism applied to intentionality developed propositions stating what the intentional processes might be, how each distinct process was arrayed in a sequence and how they related to and influenced each other and ultimately observable behavior, physiological processes in the brain and regions of the brain observable on sophisticated new electronic instruments like PET scans, CAT scan, Electro-encephalograms, and a whole host of instruments newly invented by engineers and physicists and others. That being said, discoveries using these methods would have little relevance to the justice system’s De Jure concept of free will. What needed to be added was the interrelation between these processes of intentionality and the person’s external world. The question that demanded to be asked was how intentionality interacts with specific aspects of the external world, particularly the specific structures and systems with which specific intentional processes interact.

The reason we do not methodically conceive of the structures of our society in a systematic way may lie in the fact that we can only see physically present structures and we cannot ‘see’ their impact on personalities. We especially do not have conceptions of structures as forces shaping behavior. Despite the fact that cultural anthropology and psychological cross cultural research have a long history and personality and customs have been compared in limited ways cross culturally, we do not have studies that precisely plot the effects of specific elements of structures and systems on shaping personalities. To develop perspectives of structures and systems beyond what we can see, even if we have standard operating procedures describing them, we must rely upon our memories and/or our imaginations. Such structures as we create in our minds are mere perspectives since each person can choose which elements they think should be included and can developed their own taxonomy of the elements or units of structures or patterns of systems. It is notorious that standard operating procedure manuals can have little to do with what is happening in actual practice.

Philosophical arguments addressing the question of free will versus determinism have not dealt with complex systems of interactions among humans within external structures. Such information has been considered too mundane and has been left to business and management or their academic counterparts. Traditionally, there has been a disconnection between academic disciplines such as these. Industrial psychologists are usually pressed into serving productivity and cost cutting objectives. What I am proposing here is that corporations and agencies, while seemingly remote from factors shaping personality and behavior, are actually, invisible prime movers and shapers of personality and behavior and therefore highly relevant to the question of free will.

How one ‘frames’ the question of free will is critical to gaining a clear understanding of the nature of will as well as understanding the mistaken path its history has taken. Descriptions of the way such questions are ‘framed’ were not formulated until the second half of the twentieth century. (http://people.brandeis.edu/~teuber/goffmanbio.html#Writings ) After learning how to study the way questions are framed, such knowledge and methods never made their way into philosophical arguments about free will versus determinism. Stuck in the ancient frame, we keeping spinning and unraveling, getting nowhere, and feeling frustrated and confounded with the enigmatic puzzle. If we do not shift out of this obsolete perspective and adopt the new perspective of structuralism we are faced with the effect of perpetuating a multitude of social and personal problems that beset our entire justice system and everything affected by it. The basis of this misfortune can be found in the fact the constitution of the US has De Jure free will as one of its most important underlying assumptions.

One popular contemporary position on free will that attempts to exposit its varieties and describe the conditions constraining or enabling its existence and the persistence of its use is contained in an article at this web site: Citation: http://plato.stanford.edu/entries/freewill/ . Once again, the focus in this article is on understanding and explaining the conscious act of free will of a single individual person operating in a vacuum. We cannot argue for determinism from this perspective because one does not jump from a vacuum to the effects of a field of forces or natural causes. On the other hand, trying to understand the nature and significance of free will from within a vacuum is also futile. Understanding the nature of man from the perspective of any philosophy requires a man/world Gestalt. Yet one cannot do much even with this perspective unless it is expanded to include the external structures and systems within which we exist and simultaneously introduce an explication of the internal structures and processes of the mind, particularly detailing, in so far as is possible at this time, of the processes of intentionality. A man/world Gestalt perspective implies an inextricable integration of the two aspects, a holism if you will. Asserting this and even attempting to prove it assertori or logically apriori does not make it true empirically or a posteriori. Much less does the assertion and its philosophical history up to the present explicate exactly what this is like or how it operates. It like arguments about the nature of unseen spirits in which one may place absolute confidence. No one knows if the spirits exist and, given one’s belief in them, there is no way to know what they might be like. Man/world Gestalt and/or a philosophy of free will within that context is like a belief in magical unicorns or ghosts. The concept of Duplex Pyramids is not just another variety of the monistic man/world Gestalt. Rather it is founded on observations that are public and repeatable, measurable records of temporal, longitudinal processes of interaction, and point for point (that is structural external points of reference related to observed behaviors and related to or relatable to specific points in sequential internal processes) correlations.

Science and free will versus the justice system’s emphasis on responsibility: Can science experimentally test and validate free will? No. By its very nature scientific experiments in psychology are designed to demonstrate associations between a limited number of causal variables and hypothesized outcomes or effects. Even in physics, I think absolutely definitive cause and effect relations cannot be claimed because of infinite nature of the universe and the infinite number of unknown possibilities while experiments are confined to the finite. On the other hand, psychological science can demonstrate that humans often think they have made conscious choices when the evidence suggests, overwhelmingly, the opposite. In fact, most psychological theorists would, I think, postulate that humans rarely understand their motives. Humans’ belief in reason and the fact that they make rational decisions seems unequivocally unfounded in the vast majority, if not all cases. If this is the case, then what could the meaning of free will be? Humans usually, in my experience, tend to recoil from this proposition. Does this mean that humans are hopelessly doomed to be driven by blind motives while being certain of the contrary?

There is an alternative to hopelessness. I have suggested, above, that it is possible to delineate internal processes of intentionality. I have also suggested that we can construct paradigms of relevant structures and systems that have observable influences on behavior. Now, the resolution to the conundrum implicit in the old question of free will versus determinism lies in assisting people to be able to identify what structures are influencing them; how they are influencing them; specifically which internal intentional process or processes are being influenced in what way; and finally, what to do about it. People can be taught through methods similar in many respects to psychotherapy along with training targeted to identifying ‘a critical process’ at ‘a critical time’ in relation to ‘a critical’ factor or factors in the external structure. Of course, there are levels of structure. This makes such training a bit more complicated. Furthermore, as we move to increasingly higher, more encompassing, more global structures, they become increasingly less visible and less measurable. A perspective on structure is being constructed. The units or factors in the levels of structure and entails systems must be laid out using a replicable method of analysis. At this point, the researcher, or trainer as the case may be, has to rely his or her ability to construct from memory such a perspective and do so in a way that hopefully will be the most advantageous possible for those being trained. The next step is to provide others with a comprehensible description of as many aspects of the constructed structure derived from his or her perspective as possible. Whenever possible, the method of analysis should not only have descriptions that others conceive but also be specific enough to make observations of aspects within levels and even replicable methods of measurement.

If we tentatively accept this "Duplex Pyramid" perspective on levels of external structures and systems in relation to internal structures and processes, we can begin to speculate about how it can be of practical value, how we can use it.

How does this approach affect the justice system? How does it supplant the anachronistic reliance on the belief in free will and particularly De Jure free will?

Are there more effective and less costly ways of insuring safe, crime free communities?

Insuring safety with Security systems in buildings and homes?

Insuring safety with Surveillance and crime detection technology?

Insuring safety by following up on complaints and incidents; investigation; arrest rates versus clearance rates?

Are juvenile and/or pre-trial investigations and social histories plus pre-trial psychological assessments of necessary and what is their role and effectiveness in appearance before the judge?

Is there justice in court appointed legal representation of low socio-economic status? Who gets off the best in court?

Is plea bargaining circumventing trials a sign of an ailing and failing justice system?

Trials and the court system’s prosecution and defense behavior within an adversarial structure: is it really getting at the truth and is there a better way to get at the truth?

Does the law apply to courtroom behavior of lawyers? How does their behavior and questionable tactics affect trials and conviction rates? Is the need to win productive for fair trials?

In an age of paralleled expertise in forensic science, do poorly educated jurors deciding guilt or innocence seem absurd?

With respect to sentencing procedures and guidelines in convictions, what is their goal, what need do they serve, and whom do they serve?

In an age of advanced experimental science, is the a priori and deductive nature of the justice system and trials an anomaly and incongruous and an example of a loss of perspective with respect to goals of effectiveness and the economics of cost versus benefits? Are each and all stages within the justice system sustaining and unsupportable and unjustifiable reason for being?

What exactly are the economic and safety costs of a failed justice system and can we continue to afford them just because they provide an excessive livelihood for the legal profession? If other industries can be scrapped in one fell swoop, why not the justice industry?

Management theory and parts of and departments within the justice system

The absence of interlocking objectives

The genius of modern forensic science as an unwitting roadblock to developing successful prevention approaches.

The law and the role of precedence in conflict with technological and scientific progress

The imperiousness of the legal system and converting US into a litigious society – which professions have the greatest leverage, i.e. power.

Misplaced legislative emphases and their role in misallocation of funding and manpower and their tendency to preempt citizens’ rights of self determination, extra-legal ethics, and the judgment of professionals

Television crime dramas and incessant news reports of the most heinous crimes have a powerful role of in maintaining the population’s belief in our justice system. Real world crime and justice are not even remotely similar. Hortatory and laudatory portrayal of revenge scenarios. The way reporters frame reports on court room proceedings and outcomes and the way interviews with victims and family and friends are couched with selectivity of content, placement of emotional emphasis, and exclusion of structural causal factors elicits prejudice and revenge motives and promotes a sense of universal danger to and vulnerability of the population, plus the selectivity of criminal populations based on social status and melodrama rather than actual damage to victims and the community frames the purpose of criminal justice as being to control the ‘riff-raff’. Crime movies tend to do the same thing. High profile, brilliant criminals are portrayed as somehow superhuman beings, above the hoi-polloi and somewhat like sports heroes.

Incarceration for punishment and its failure to reduce the crime rate – criteria for what works: if crime rates and incarceration rates keep going up, is that a sign that the system works.

Rehabilitation, psychological treatment, education, job training, community volunteer organizations, furloughs, Parole, Safe Houses, Half-way houses, pre-release programs, community organizations, registering sex offenders are all designed to protect the public and prevent recidivism.

Police neighbor beats and participation in neighborhood community organizations.

Com-stats and the distribution of police outlying offices and allocation of the number of police according to high crime rate areas versus upscale shopping districts.

The structure of Institutions of incarceration and how they function as highly effective training centers that produce criminals that are far more bitter and expert than when they came in

Psychiatry is the retarded stepchild of science and its exposure as a bogus defense in criminal trials and its fiasco in treating the mentally ill, criminals, and addicts clearly reveals this.

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P111 Lectures test 1
http://lilt.ilstu.edu/vfdouga/P111%20P110%20%20stuff/P111lectures.htm
... mind had innate processes ... Free will versus determinism. 1. determinism: science. a. there are rules and predictable patterns of behavior ... system. 1. emotion center. 2. bunch of structures ...

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