Category Archives: crime

Free will and punishment

On several occasions we have published posts about criminal law on this blog. In general our position is that only acts which cause harm on non-consenting others should be prohibited, and should be punishable by law. What constitutes harm is subject to debate. However in this post we want to discuss another topic: whether the existence or non-existence of a free will is relevant in matters of criminal law.

Some authors have argued that if humans do not posses a free will, they cannot be held responsible for their actions and therefore society has no right to punish them. Some people have used the reverse reasoning to defend the existence of a free will: if people have to be held accountable for their actions, they should posses a free will; therefore a free will must exist. This latter argument is a fallacy, the so-called moralistic fallacy or the idea that the existence of A can be established from the moral desirability of A.

The most important argument raised against the existence of a free will is determinism. This is the ontological position that the order of events in the universe has been predetermined and consequently cannot be changed. There are many different types of determinism, but currently the most important one is the determinism of Laplace or Laplacian determinism. French scientist Laplace deduced from Newtonian physics that the universe should be deterministic at the end of the 18th century.

Central to Newtonian physics is the concept of force: a particle on which no forces are acting will either remain in rest or move in a straight line at a constant speed. In order to accelerate or decelerate, or to change its direction, you need to apply a force on it. The change in velocity and direction of the particle, is dependent on the magnitude and direction of the force acting on the particle. Laplace made the conclusion that if you would know the location of all particles in the universe and all forces acting on them at a given moment in time, and you know all laws of physics, you would be able to calculate the configuration of particles and forces at any other point in time.

Laplace’s determinism is based on the idea of a causal chain: cause and effect. Though Newtonian physics has been replaced by relativistic physics, determinism was still strongly established. After all, Einstein’s theory of relativity is no less deterministic than Newton’s theory. Even though many, if not most, physicists believe that quantum mechanics is probabilistic rather than deterministic, there are still many scientists who support deterministic versions of quantum theory.

Even if we, for the sake of the argument, assume that quantum mechanics is probabilistic and that random quantum fluctuations are capable of steering the human mind; the existence of a free will is still not proven. After all, we have no influence on the occurrence of these fluctuations and consequently we do not control their effects. Suppose that the human brain depends on a single quantum event: the spin of a particular hydrogen atom somewhere in our nerve system. The spin is either “up” or “down”, each with equal probability. If the spin is “up” the brain will choose action A, but if the spin is “down” it will choose action B. Since the spin of a hydrogen cannot be controlled by the brain, we cannot strictly speak of “a free will”.

We can conclude that a strong case can be made against the existence of a free will. So the question is now whether the non-existence of a free will matters in case of moral issues such as crime and punishment. I will argue it does not matter at all. Let we consider the following analogy: a game of pool. If a ball lies on a pool table, while no forces are acting on it, the ball will remain where it is. If a player pushes another ball with his cue stick. the second ball will follow a trajectory which is determined by the initial force (from the player) and friction. However when the second ball collides with the first one, the trajectory of the ball will be changed and also the first ball will move. But if the payer had not pushed the second ball, the first ball would have remained in rest.

Determinism is often misunderstood as that outcomes cannot be changed. But in fact, at least in Laplacian determinism, determinism only says that if you know the input, you also know the output: if you know that x+y=z, once you know both x and y, you automatically know z. However if don’t x, y or both, you cannot know z.

We can model the human mind as a function f of y and y: f(x,y)=z. Here are x and y what we can call external variables, and z is the internal state of the human mind. Now for every pair of x and y, there is one value of z; which makes this model a deterministic model of the mind. By changing x and/or y, we can control the state of the mind.

Even we do not have a free will, we can still suffer. Regardless of the (non)-existence of a free will, the reduction or elimination of harm is a good thing to do. By prohibiting harmful action and imposing penalties on such actions, we might reduce harm. How can this work?

First, punishment might act as a deterrent: the imposing of penalties might act as external variable which changes the state of mind z such that the person affected will not commit a crime. Even if the deterrence function of penalties only reduces the amount of crimes committed, it would be a good result. Secondly, punishment might change the way the criminal thinks: either the experience of punishment is such an unpleasant one, that he does not want to experience it again, or as result of punishment the criminal’s “mind function” is transformed from f(x,y) into g(x,y). Also in this case it would a good result, if crime is only reduced by some amount. Thirdly, punishment might remove a criminal from society (either by imprisonment or death), so he cannot commit any further crime.

None of these functions of punishment do require the existence of a free will. In fact the contrary is true, to some degree. In order for these function to work there should be some determinacy in the relation between punishments and criminal behaviour.

Space colonies and drug policy

If there is one thing we do not need in any future Space settlement, it is organized crime. One of the leading factors in organized is the prohibition of drugs. So if we want to reduce organised crime, we have to deal with drugs.

We have first to consider why the war on drugs has been a failure. American professor in criminology, Peter Moskos, has explained this as follows:

A child victim doesn’t go out searching for another criminal abuser. But that’s exactly what a drug addict does.

An arrest in the war on drugs usually creates a job opening. Arrest thousands of drugs dealers […], and other needy or greed will take their place. (Moskos p. 19, 2011).

The problem is that drug crimes are economic-demand motivated crimes. As long as there is a demand for illicit drugs there will be people who will sell drugs. And this trade in drugs is mainly controlled by criminal organizations.

Some people belief that using drugs is a victimless crime. They argue that since no third party is harmed if one chooses to do drugs. Therefore under harm principle drugs ought not to be prohibited. Although the principal “victim” of drug consumption is indeed the user, there are, however, serious issue related with drugs.

One is that drugs are addictive, if one uses drugs once they have a physical or mental need to continue using drugs. If a pregnant woman uses drugs, her child might be born already with a drug addiction. This certainly violates the harm principle and could therefore be prohibited or regulated. And being born with a drug addiction is not the only risk resulting from using drugs while pregnant. Children of addicted mothers suffer from several mental and physical development disorders.

Many (heavy) drug users are unable to function at their work, and hence get fired. Subsequently, they turn to crime to support themselves and finance their drugs. In this way drugs also causes significant harm to society. Heavy drug users also do harm by their behaviour. When people are under influence of drugs, they will behave in a different manner then they would otherwise. This is often asocial or violent behaviour.

Until very recently I was a fervent supporter of the global war on drugs, for the reasons mentioned above. I really believed that space settlement should prohibit drugs and should impose harsh punishment to enforce this prohibition. But I had a change of heart when I learned about the truth of the war on drugs in Mexico. Since 2006 tens of thousands of people have been killed in Mexico by rivalling drug cartels.

The Mexican Drug War is the direct result of the American war on drugs, since Mexican gangs are the main suppliers of drugs on the American market. In fact the war on drugs are causing much harm than the problem it ought to solve. Is this really what we want in a space colony?

Unlike some other proponents of drug reform, Republic of Lagrangia believes that drugs should be legalized in combination with regulation. How would our drug policy look like? First, we should treat drugs as a public health issue rather than as a matter of criminal justice. Drugs users who want to come clean should be helped by the government.

In order to prevent in influx of drug users, we should modify our immigration policy: terrestrial drug addicts should not be allowed to immigrate to outer space. If they can overcome their addiction, and stay clean for some years, we might welcome them as new settlers.

Although the use of drugs causes several social problems, violent drugs dealers are probably an even worse problem. The problem of drugs dealers is easily to solve: in order to have supervision on drug users, the state should consider to monopolize the trade in drugs. Since the state has no profit motive, it could offer drugs at cost price. The production of drugs is quite cheap, it’s prohibition which increase their market value. Because of this huge margin of profit, people become drugs dealers. If the state should offer drugs at low prices, then dealing drugs will lose its attractiveness.

Another benefit of state controlled supply of drugs, is that drugs users can be sure that the stuff they purchase is actually safe. It is not uncommon for ruthless drug dealers to sell instead of drugs, dangerous substances as wash powder. Because of the illicit nature of this trade, no fooled drug users will report those bastards to the police. Therefore these criminals get away with their fraud.

Also we believe that selling drugs to persons below 18 years of age should remain illegal.

References

Moskos, Peter 2011. In defense of flogging. Basic Books, New York.

Incest and Bestiality are NOT victimless crimes

Introduction

Republic of Lagrangia endorses the version of classical liberalism as have been described in On Liberty by John Stuart Mill.

The most important concept in this work is the so-called harm principle. What is this principle? The harm principle basically states that individual liberty should only be limited in order to prevent harming of others. In other words: a certain behaviour can only be prohibited by the government is such behaviour is harmful to others. This also means that the law should not make acts of self harm illegal. If some one chooses to harm himself without harming others, then we should not consider such person as a criminal.

Related to the harm principle is the concept of victimless crimes. These are crimes which do not have a victim. However, what is a victim? Some crimes such as murder, rape and theft, have clearly identifiable victims. But there are crimes in which the victims are less clear. An example is environmental pollution, which does harm person by destroying our environment. Only in case of environmental pollution it is often not clear who exactly has been harmed. Some wingnuts claim for these reason environmental pollution is a victimless crime, of course this is pure bullshit.

However, the harm principle does not state that some one has to be harmed intentionally by some act. If it is known that a certain act is harmful for some one, then this would be sufficient reason for prohibiting such act (or at least to regulate such behaviour).

Some people would argue that incest between mutually consenting adults is not a victimless crime. And people such as David Brink, suggest that bestiality is a victimless crime. In both cases, people argue that no one is harmed by such acts. In this post I will explain why neither incest nor bestiality is a victimless crime.

Incest

With incest we mean here: sexual intercourse between two consenting adults who are close relatives of each other. This definition excludes sexual relations between adults and minors and rape of a relative. These latter two act consist two separate crimes, since they are generally not considered as victimless.

One might argue that if two (or more) person consent to have sexual intercourse with each other, then there is no harm. In most cases, this would indeed be true. However, if two closely related persons have sex we have to take into account the children who might result from this act. And in case of two close relative having intercourse we have to deal with the risks of inbreeding.

It is a widely known fact that children of parent who are close relatives, have a greater change of having genetic disorders. Many governments are persuading pregnant women not to smoke or drink alcohol, because of the potential harm for their unborn children. Following this logic, we should also discourage close relatives to have sex with each other, in order to prevent harm to the children who might be conceived during an incestuous affair.

Inbreeding becomes even more serious when the children of closely related parents would have in their turn children with their relatives. For each generation that a family practices incest the incidence of genetic disorders will increase. And these disorders include very serious illnesses. There is incest certainly not a victimless crime.

Bestiality

Bestiality is when a human has sexual intercourse with a non-human animal. This behaviour is harmful in several ways.

First, we have to consider the harm done to the animal. According to Mill’s teacher Jeremy Bentham animals should have moral relevance because they can suffer, just as humans. Therefore animals are also covered by the harm principle. Although harming an animal might be justified in certain extraordinary circumstances, we absolute do not consider trying satisfying some (perverse) sexual urges as one of those.

Whether an animal will suffer of sexual intercourse with a human, depends on the physiology of the particular animal. However, even if an animal is not physically injured, an animal might suffer psychological damage from a unconsensual act.

A second reason why bestiality should be illegal is the problem of diseases which can be transferred from one species to another. By having intercourse with animal a human being might be infected by some disease. If such person subsequently has intercourse with a human, (s)he might infect other people. A new, potentially epidemic, infectious disease has been born. Or the zoosexual might infect other animals.

Scientists believe that HIV has been transmitted from apes to humans at some point in last century. We do not want just another of such disease. Therefore bestiality is not a victimless crime.

See also:

Space colonization and vegetarianism