The “ought implies can” principle of ethics suggests that it is only if people are morally autonomous that they should be required to act ethically. So what if neurology or genes program people to behave in a way that society condemns? Is a pedophile an evil monster or simply a human with predetermined, unusual tastes? The Marquis de DeSade, in fact, simply describes such people as “preferring their fruit green”. While this seems monstrous it is in fact a version of an old argument about free will and determinism. If I tell you that should jump over the Sydney Harbour Bridge I can hardly find fault with you if you tell me you cannot. It is a tricky issue and although I have never entirely been happy with positions that assert high degrees of individual moral responsibility, regardless of personal characteristics, I’ve uneasily stuck with the view that to not assign such responsibility in many practical situations would be too socially disastrous to contemplate.
It is interesting to me too that economic theory offers no help at all on such issues. While tastes and preferences condition much of economic theory we assume they are God-given or, at best, conditioned by advertising or social emulation. Economists don’t make judgments at all about the desirability of tastes although we do dislike externalities and violent crime is an externality.
This Age article by Allan McCay takes up the issue of free will in relation to criminal law – hardly a new topic – but asks whether defendants in criminal cases might reasonably pose a genetic defence – “I was born with the wrong genes so don’t hold me responsible” your Honor! It follows an earlier piece by Julia Smith that looked at the behavioural genetics of mass murders. Is there an “evil gene” or do psychopaths have distinctive brain structures? Following this logic will the concept of “evil” itself eventually become extinct. Conversely, of course. the virtuous among us deserve no special acclaim – they just did “well” in the genetic/neurological lottery.
Such issues are being investigated in courses on “neurolaw”and “neuroethics” although political correctness has made such fields of study controversial. The possible eugenic implications of high crime rates among racial minorities, where crime tends to be concentrated, are hypotheses many people would not even want to think about. They revive memories of Nazism and racism. Outrage from the victims of horrific crime is also an understandable limiting factor. Non-victims too despise pedophilia and rape because most of us can understand the terrible consequences of such actions.
The evidence seems to be that criminals are not born but that certain people have enhanced odds of becoming a criminal. Most psychopaths have been subject to environmental factors such as parental or sexual abuse. Moreover, the law does recognise diminished responsibility for a crime because of the personal characteristics of the criminal. A mentally-impaired individual who was sexually or physically abused is generally seen as deserving less punishment. They have regarded as having greater difficulty controlling their behaviour.
So where does one draw the line? One might argue that locking people up who have defective genes protects society and that it is this protection rather than any idea of “punishment” that is important. Certainly the idea of “punishment” has an uneasy basis in logic. Obviously we should not seek to prosecute those whose tastes do not create victims – John Stuart Mill saw this – but what do we do with pre-programmed monsters who do create real victims? I have meandered about and have not offered much insight beyond perhaps the suggestion that incarceration be regarded as hospitalisation or the insulation of society from those who would otherwise create damage. I am interested in the views of readers.