Reflections on Psychopathy, Free Will, and Morality (Column 493)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I again touched on the role of emotion in our lives. In this column I wish to address the matter from a slightly different angle—perhaps a more fundamental one. I intend to discuss the question of the moral and legal responsibility of a person who is impaired on the emotional plane, and in particular a psychopath.

Motivation

In a lecture I gave about a year ago, I dealt with the question of what morality is and what motivates moral behavior, and in passing I remarked that a psychopath is not an immoral person because he does not understand the difference between good and evil at all. This is a defect inherent in him (apparently organic). One of the listeners, who introduced himself as a psychiatrist (or a psychologist, I don’t remember), responded that this was not correct. He explained that a psychopath does in fact understand perfectly well the difference between good and evil, and therefore the courts consider him wicked and impose criminal responsibility upon him.

His comment raised questions in me about the nature of that “understanding” a psychopath allegedly has. A brief reflection on this question reveals that it has several facets, and from it one easily reaches discussions about the roots of our humanity and our free will, the question of what psychology is and the meaning of psychiatric diagnosis, distinctions concerning the validity of morality and the nature of normative moral behavior, and of course the way to judge such phenomena (morally and legally). In addition, one can see here a fine example of the complicated interface between philosophy (ethics, in this case) and psychology or psychiatry.

A preliminary methodological note

On Wikipedia there is a very long entry on psychopathy (not psychopathology, which is broader),[1] and you can see there that this is a complex subject about which opinions are divided. In my impression, as in many other cases, what is missing in the background of the discussion is conceptual analysis, even among professionals, and perhaps especially among them. The reason for this may be the fear of entangling worldviews and ideologies, and the attempt to separate scientific research and discussion from all that and distill out of the mess the objective facts—that is, the science of the matter.

But as in many other issues, such an analysis can greatly clarify the picture, sharpen certain distinctions and rule out others. After doing the analysis, it is both possible and desirable to insist on distinguishing between facts and views and values (this too is not always observed in professional fields such as these)[2], but it is very important to do so.

What is psychopathy?

I will begin with a pseudo-professional description of this term (it is not considered a professional term; there is no such diagnosis in standard psychiatry). I am of course forced to be concise, but I will touch on the main points relevant to our discussion. The Wikipedia entry opens with the following definition:

Psychopathy is… a personality disorder whose principal characteristics are a pervasive and persistent pattern of antisocial behavior, a lack of empathy, absence of guilt or remorse, personality traits of boldness, lack of inhibition, and self-centeredness.

Here we have behavioral characteristics, such as lack of inhibition, egoism and antisocial behavior (malice, arrogance, exploitation of others, lack of self-control, low threshold for stimulation, and more) in general, and also psychological characteristics, such as the absence of feelings of guilt or remorse, and a lack of empathy. Therefore in psychiatry it is customary to distinguish between antisocial personality disorder and psychopathy. The former term describes certain forms of behavior, while the latter is tied to mental pathologies (which may be the causes of those behaviors). It is no coincidence that there is a psychiatric diagnosis for antisocial disorder, but there is no such diagnosis for psychopathy. It is a pseudo-professional term that, on the behavioral level, is usually connected with criminality.

Many have noted that at first glance it is quite difficult to identify that the person before you is a psychopath. He behaves with people in a normative way, and commits his acts in secret. We are dealing with a person of average or higher intelligence who behaves in generally ordinary and reasonable ways in society. On the personal level the psychopath is indifferent to the feelings of others and in particular to their suffering. He does not “feel” the other, and therefore does not regret evil acts he commits and has no feelings of guilt regarding them. This can of course lead him to do terrible things that cause great suffering to others (such that the public will not know about it), because the inhibitions that usually prevent us from doing such deeds do not exist in him. Therefore psychopathy is generally linked with evil and dangerousness. There are many works in literature and cinema that revolve around psychopathy, and most of them deal with extreme evil (I think the best-known are Hannibal Lecter in “The Silence of the Lambs,” Alex and his friends in “A Clockwork Orange,” and of course there are others). There are also current cases associated with psychopathy, like the murder of taxi driver Derek Roth in cold blood and for no reason by two fourteen-year-old boys in 1994 in Herzliya (see there also the two’s subsequent exploits and judge for yourselves). See more real-life examples at the beginning of Column 23.

When assessing psychopathy, a list of measures is used (PCL-R) that are weighted in a certain way. Each country sets a threshold such that if the patient’s accumulated score exceeds it, he is defined as a psychopath. To give you a sense of it, I will bring here the description from Wikipedia:

A psychopathic personality is characterized by a set of personality traits, including hardness and lack of empathy, manipulativeness, superficial charm, egocentricity, grandiosity, flat affect and low self-control. Emotionally they are quick-tempered, lack the ability to form strong emotional bonds with others, and are deficient in guilt, remorse, or deep feelings. These interpersonal and emotional characteristics combine with a socially deviant style of behavior that includes impulsive and irresponsible behavior and a tendency to ignore or violate social and moral conventions. The psychopath often fails in his attempt to follow his life plan, and his motivational system is impaired. He may appear rational—an ordinary person to all appearances—but closer acquaintance reveals a level of backwardness similar to insanity. One could say that he is an isolated island—he lacks the ability to establish the vital connections that would tie him to other people and give meaning to his participation in society, to loyalty to it, and to refraining from crime. The feelings that make a person’s life meaningful are absent in the psychopath.

Since he is not preoccupied with his emotional experiences, he is free to notice others’ weak points and vulnerabilities, which he exploits for his personal needs or personal pleasure. Since the psychopath is not sensitive to stimuli, he requires constant, ongoing, exciting stimuli. Because of this emotional poverty, the psychopath is unable to feel satisfaction; he becomes bored easily, and therefore has difficulty completing tasks. He is unable to think carefully and clearly about his future, and tends to endanger himself in ways that seem illogical. His impulsive behavior is expressed in the variety of short and superficial relationships he maintains and in a marked inability to keep commitments and obligations. He is unable to resist temptations and urges, and his behavior is unpredictable and rash. The psychopath has difficulty learning from punishments imposed on him. Not only is he unable to imagine his future and his actions in the long term, he is also not afraid of punishment. By the same token the psychopath can behave in a very charming and captivating manner; lacking self-awareness, he lies without batting an eye; he is slick, and his speech style is light and fluent—yet it is a dubious, superficial, immediate and temporary charm whose sole purpose is the extraction of personal and immediate enjoyment.

You can see that it is quite difficult to define such figures (see, for example, a popular description here). It is no wonder, then, that there are many different shades of phenomena that fall under the heading “psychopathy,” and of course there is a continuum of levels of psychopathy. There are fierce debates about whether this is even a personality disorder (whether there is something “wrong” there that can be fixed), and whether it is possible to treat it or improve the condition of a person who suffers from it. But for our purposes here this description suffices. There are claims that psychopaths are usually endowed with intelligence above the average, but this is not agreed upon. In any case, it is clear that they do not suffer from an intellectual defect (though their emotional intelligence is probably not among the finest. Well, there are also advantages to psychopathy).

A look at moral and criminal responsibility

A normative person is considered responsible for his actions. If he does something problematic, morally or criminally, society regards him as a negative person and he must bear responsibility for it. If the psychopath is not mentally ill, and his intellect and understanding are good, then ostensibly there is no barrier to imposing criminal responsibility upon him. Indeed, in legal systems it is customary to see him as a rational and sane person, and consequently a person who bears responsibility for his actions. Psychopathy does not constitute an exculpatory or mitigating clause in the sentence of such a person. Therefore “psychopath” often serves as a pejorative, i.e., a label for someone who behaves wickedly even though he understands and is responsible for his actions. It is a synonym for a wicked person—only in a more extreme form. I did, however, now see a claim (Maya Mi-Tal, in this article) that this is unjustified; that is, a psychopath cannot be considered a person fully responsible for his actions. Below I will try to examine this a bit more systematically, at least on the conceptual level.

Understanding: on the source of good and evil

Criminal responsibility requires understanding the meaning of actions and their consequences, that they are forbidden, and of course a full intention in performing them. The psychopath does indeed understand that a certain act is evil, but this is an understanding in a very limited sense. One can distinguish several levels of such understanding. One can know that society considers the act evil. This is a very minimal understanding, since for that we need only read the statute book. This is a fact like any other fact, and it is hard to see knowledge of it in itself as a sufficient basis for imposing criminal responsibility. I think the naturalistic fallacy is the philosophical expression of this problem. The appearance of a “murder” clause in the statute book is a fact, but it is not enough to lead to the conclusion that it is forbidden in the full sense (that is, something that concerns me and obligates me). I may know intellectually that society does not like it, and even that it imposes a punishment, but is that all that is required to bear criminal responsibility? And is it not legitimate to disagree with what society says?

Knowing the difference between good and evil is not knowledge of a neutral fact, such as that a certain act appears as prohibited in the statute book or in society’s moral code. There is a feeling (not necessarily an emotion, but a perception) that accompanies this knowledge, and it is what turns it into a binding norm. Without it there is no real knowledge of good and evil. One often hears philosophical positions according to which morality obligates because it is a social convention, or because there is within us a feeling (compassion, etc.) that directs us what to do or not to do. In my understanding, such claims result from difficulty in understanding and defining the nature of morality. A moral norm is not a fact in the simple physical sense, so what is it? Why does it obligate? If it has no anchor in the physical world, why do we see it as an objective obligation and accuse those who do not act in accordance with it? The conclusion many draw from these difficulties is that it is a subjective feeling (a product of evolution) or a social convention. But such positions cannot truly ground a system of morality. May I not dispute society’s determinations? Am I obliged to obey feelings imprinted in me? For example, I also have a desire to speak slander; does the existence of such a feeling impose an obligation on me to do so? A subjective feeling and a social convention are not philosophically sufficient reasons to obligate moral behavior and judge those who do not behave so. One can of course offer psychological and evolutionary explanations for the development of the moral feeling and of moral behavior. This explains the emergence of psychological facts, but it does not justify philosophically the validity of morality (i.e., the claim that one must behave thus). In short, even if this is true, it is psychology, not philosophy (ethics is a branch of philosophy).

Therefore, to me such views testify first and foremost to a lack of philosophical skill. People do not know how to define for themselves that there are moral facts that obligate us all (see on this in Column 456. There I also argued that at the base of this difficulty in many cases stands atheism). These are facts for which the naturalistic fallacy does not exist (the existence of an ethical fact obligates us to act or refrain from acting, unlike an ordinary fact). Ethical realism is the view that there are such ethical facts, and this is the necessary basis for valid morality—there is no alternative.

If one takes seriously the subjectivist and conventionalist statements about the source of morality—i.e., accepts that these speakers truly and genuinely do not assume ethical realism even in their own hearts—then essentially we are dealing with psychopaths. Such a person does not understand what morality is, what good and evil are, but only knows factually that society forbids something or that there is within him some subjective feeling. On the philosophical level he is blind to good and evil, and develops alternative conceptions that look similar but are in fact invalid. It is quite surprising, but such widespread philosophical positions actually express psychopathy (therefore, as noted, I do not believe these speakers, and I assume this is a lack of philosophical skill). On the practical level, such a person does not behave as a psychopath, of course. He acts according to the dictates of his heart or according to social conventions, and therefore in practice he does not harm anyone. He is indeed philosophically mistaken if he thinks these are valid justifications, but in practice he behaves in a completely social manner. No one would define such a philosophical stance as psychopathy, but in the philosophical-essential sense it is full-blown psychopathy. He is, in my view, like a computer programmed to behave “properly,” that is, not to harm anyone. He has no antisocial behavior, but in terms of personality he is a psychopath. I think the only way not to regard such a person as a psychopath is not to believe him: to think that he is in fact committed to morality and understands that it has binding force, and only a philosophical difficulty leads him to his foolish conclusions.

We may invoke here Rabbi Nachman of Breslov’s parable of the “Turkey Prince.” The king’s son is inwardly convinced that he is a turkey, but for technical reasons he is persuaded to behave like a human being: to wear clothes, sit on a chair, speak, eat like people, and so on. Is such a person mentally and psychologically healthy? Clearly not. In Columns 22 and 175 I brought the example of John Nash, the famous mathematician who suffered from paranoid schizophrenia and was convinced he was being persecuted by various imaginary figures, but learned to live with those figures and not respond to them. After he learned this, can we regard him as a healthy person? He is sure such figures exist and that we are wrong, but he learned to function among us as if those figures were not real (he wrote on his arm “I am sane”). So too with our man. He essentially thinks there is no valid morality and no reason to act morally, but he learned to live among human beings and understood that externally this requires moral, social behavior. Such a person indeed does not suffer from an antisocial disorder, but in terms of personality he is entirely a psychopath.

In short, psychopathy exists not only on the behavioral-practical-psychological plane but also on the philosophical plane. The treatment of psychopathy is first and foremost on the ethical-philosophical plane. Try to persuade a psychopath to change his behavior through arguments about social conventions and subjective feelings, and good luck to you (it is by no means certain that philosophical treatment will succeed either, but his problem is first of all there).

Between understanding and knowledge: the place of emotion

We saw that the psychopath does not feel the suffering of others (he lacks empathy). If so, his knowledge of good and evil—even if he intellectually understands the meaning of the concepts of good and evil and not merely knows that something is written in the statute book—cannot be considered full understanding. It is a cold intellectual understanding, without an immediate experience of the evil of the matter. The feelings that accompany such an act (remorse) and the direct encounter with another’s suffering (empathy) are absent in him. If so, an intellectual knowledge of good and evil is not enough; the feeling that accompanies this knowledge is also required. But this feeling itself contains several components.

Take pain as an example. Pain is a mental and psychological phenomenon and not only a physical one, and therefore there are psychological effects on the suffering involved in pain. In principle, one can feel pain on the experiential level and yet not suffer. For example, it is well known that in certain situations (when there is fear or sensitivity to injections or anesthesia) surgery is performed under hypnosis instead of anesthesia.[3] I have now come across a claim (in a novel I read) that hypnosis does not change our physiology at all but only our psychology. From this it follows that in such a state a person experiences the sensation of pain fully and even responds to it in the same way, but manages to endure it because he has no awareness of the pain. If I understood correctly, the idea is that he does not “understand” that it should bother him. It was argued there that his responses to pain can be similar to those of a normal person who suffers, but these are mere instincts and not the results of real suffering. The claim is that there is an automatic response to the sensation of pain, and it does not pass through our cognition (the suffering we feel). I am not sure I understand this state precisely, but if it is correct there is here a fine nuance within the experience of pain or suffering. We are dealing with a person who experiences sensations of pain—not merely knows intellectually that he is in pain—but without self-awareness the pain does not disturb him in the same way and he can withstand it.[4]

Incidentally, this opens room to discuss inflicting pain on animals. On the assumption that they lack awareness, or that their awareness is very low, it may be that the pain we cause them is perceived by them differently from us. It is not certain that they suffer so much, even if their physical reactions look similar to ours. This can of course vary between types of animals (more or less low), but for our purposes here it illustrates the fine distinction between the sensation of pain and suffering. I will only note that despite this I do not recommend inflicting pain on animals, both because I am not sure this is the case and because it is not proper to cause even pain without awareness. But the gravity of the prohibition and the prices that must be paid because of it can certainly be influenced by this insight.

Four planes of understanding

We saw that to understand the concepts of good and evil for purposes of criminal responsibility, understanding is required on two different planes: 1) Factual—knowing that something is defined as evil. 2) Intellectual—understanding that this is not a neutral definition but has binding normative meaning (not only in society’s expectations but essentially). Beyond that, in the previous paragraph we saw that an immediate experiential understanding of the concept of suffering is also required: 3) To impose responsibility on a person who causes suffering to others, he must also have an experiential understanding of suffering and evil. If there is a person who, when he is harmed, does not suffer, then he lacks understanding on plane 3. By this I mean, of course, the two layers I described in the previous section (the experience as such and the awareness of it).

If a person lacks any of these three components of understanding, he is exempt from criminal and moral responsibility. Even if he knows that a certain act is evil and understands that one must not do it, as long as he does not experience its meaning and consequences (the suffering it causes), it is difficult to reproach him.

However, I assume that at least some psychopaths do personally experience suffering caused by such an act when it is done to them, and I also assume that such a psychopath very much dislikes it. That is, it is reasonable that he has an experiential understanding of the concept of suffering (with both of its components above), in addition to the factual and intellectual understanding. So what exactly is he missing? Why is he still a psychopath and not just an ordinary wicked person? (I assume not every wicked person is a psychopath.) Here the next plane enters: 4) empathy.

There is a claim that because of the absence of empathy, the psychopath does not experience the suffering of others. Intellectually he likely understands that the other suffers (indeed, that is precisely what he enjoys), and as I noted he also understands the meaning of suffering (since he has experienced such suffering himself, including the two components above), but he apparently does not experience the suffering of the other as his own inner pain. He does not feel the other’s suffering, he only understands that it exists. In some cases the claim is that something in the psychopath’s amygdala is defective—that is, there is an organic impairment. But this is not necessary for my argument.

The relation between the planes

At first glance the last two requirements, 3 and 4, are not related to understanding on the intellectual plane, and they shift the discussion from understanding to the emotional plane. But I do not think this is correct. As I wrote at the start of the previous column, here too emotion serves as a kind of sense for perceiving states of suffering and evil. The decision to do the act or not is a decision of the intellect (and not merely an instinctive recoil), but it requires data supplied by emotion. A person who does not experience suffering might perhaps understand the concepts of evil and suffering, but this is a cold intellectual understanding, and it is doubtful to what extent his decision to cause someone suffering can be judged in full severity. I have repeatedly brought here the example of “Mary’s room” (see Column 446 regarding halachic ruling, and Column 452 regarding study): a physicist who masters all the arcana of optical physics but has never seen color. She lives in a black-and-white room. Is what she lacks only emotion, or is there something lacking in her understanding? Cold knowledge receives meaning when feelings accompany it. The feelings here express something objective and are thus an epistemic tool, not merely something subjective and personal. Our conscience colors the neutral concepts of good and evil with hues without which we do not truly understand what is at stake. This is similar to C. S. Lewis’s analysis mentioned in the previous column concerning the relationship between the aesthetic value of a work and the feelings it arouses in us.

This is a very subtle distinction. We are dealing with an expert ethicist (like Mary the physicist), yet he lacks the connotation. He even knows that these deeds are defined as evil and that society forbids and punishes them, and still something very fundamental is lacking in his understanding of them and their meaning. Emotion on plane 3 functions here as a kind of sense through which you encounter evil, injustice, and suffering. If you lack this, you lack something in the understanding of good and evil. This is an intellectual lack, not only an emotional one. I very much doubt that an understanding of the concepts of good and evil is possible without feeling these sensations immediately. This is not merely a reduced understanding; it is doubtful whether it is understanding at all. A cold understanding that a certain action is good or evil—beyond understanding that so it appears in the statute book or social code—still cannot be considered real understanding of good and evil. Try explaining to Mary the aesthetics of colors and the feelings they arouse in us. Even if she specializes in neuroscience in addition to optics and now understands all the neuronal processes that occur in us when we experience different colors, she still does not understand anything about what color is and what it does to us. For such a person, the understanding of good and evil is tantamount to understanding a physical fact—that there is a wall before me. But this is a cold, neutral fact, and for him it does not entail motivation to act (a prohibition or obligation to do something). Such a fact is still subject to the naturalistic fallacy, and therefore he still does not really understand what an ethical fact is—and consequently neither what ethics is. He will picture the ideal of the good as some physical structure, and will not manage to understand what it means for him and why it obligates him to anything. In this structure there are bulletin boards stating that murder and theft are evil and helping others is good. He will know the material perfectly and get 100 on the exam, but it will not tell him what it is truly supposed to tell a normative person.

In Column 457 I argued that even God is subject to the laws of morality, as to the laws of logic. That is, He did not create them; they are such by definition. I asked there how this squares with my claim that without God they have no binding force. I explained that the very existence of ethical facts is a fact, but facts are subject to the naturalistic fallacy. Without God they lack the binding “color,” that which moves us to action. Without belief in God we are dealing with a psychopathic conception of those ethical facts as neutral, non-binding facts.[5]

Thus there is a big difference between planes 3 and 4. Plane 3 is tied to our understanding of the concepts of evil and suffering, and in this it completes the requirements of planes 1 and 2. These are all requirements for understanding good and evil, and only all three planes together create such understanding. By contrast, plane 4 is not related to understanding the situation but to the decisions I make on the basis of that understanding. This brings me to the next section.

Control

There is another problematic aspect in a person’s criminal responsibility, and it seems to me this is essential to the definition of a psychopath. Take a person who acts under an irresistible momentary impulse. Such a person knows that his act is prohibited by the statute book, and he also knows that the law imposes punishment for it. He even understands that it causes suffering and is aware of the duty not to cause others suffering. Nevertheless, in such a situation his judgment is impaired and therefore he does it. He is not defective in the sense described above—that is, in understanding that the act is prohibited (for him this is not merely a neutral fact)—but he is defective in terms of his control over his actions.

A person who does not experience others’ suffering (lacks empathy—plane 4) naturally has low inhibitions regarding the performance of acts that will cause them suffering. His understanding of good and evil can be complete (planes 1–3), but whereas an ordinary person has something beyond understanding that stops us from committing these acts—the pangs of conscience before and after the deed (the feelings we felt after the previous times we did this)—in the psychopath this does not exist. When a person lacks this, his inhibitions are low. To my understanding, this does not reduce the psychopath’s criminal responsibility, for he understands well the evil and the prohibition of doing it and even personally experiences the suffering such acts cause; but there is here an argument for mitigation of punishment. The circumstances in which he acts are harder to control. We have something that helps us and stops us from committing such acts toward others, and he does not. He acts under circumstances where his trial is more difficult, and this is an argument for diminished culpability.

We saw that a psychopath does not learn or draw conclusions from punishments he receives. He does not make long-term calculations. Therefore, even if a punishment appears in the statute book, when it is not even imposed on him in practice, it is hard to assume that he takes the meaning of his actions into account. Again, here too this is not about lack of criminal responsibility but about arguments for diminished culpability, or leniency in punishment. This joins plane 4 of control over actions.

It is important to understand that these restraints are not supposed to be the reason an ordinary person acts. A moral act is done out of an autonomous decision of the person and not because of some impulse or nature (in the terms of Column 456, an act done because of a nature instilled in us is the act of a sheep: it does good because its instincts are so imprinted). But they of course help us act rightly. When we have restraints, it is easier for us to decide not to act, and for one who lacks restraints it is harder to act according to his understandings. Therefore, arguments of control—plane 4 above—are arguments for leniency in punishment but not arguments that exempt a person entirely from responsibility. By contrast, arguments related to plane 3 attest to a lack of understanding and an inability to make a decision and choose; therefore these are indeed arguments for lack of culpability.

Does a psychopath have choice?

The conclusion that emerges from the discussion so far is that at least some psychopaths have the first three planes of understanding (to one degree or another) and therefore, in principle, they are indeed responsible for their actions. But the fourth plane is deficient in them, and therefore it is appropriate to regard such a person as an offender with diminished culpability.

If there is a person endowed with an unusually strong sadistic urge—that is, he enjoys harming others—is he a psychopath? I am not sure. Everyone has such urges from time to time in varying intensities, but we overcome them. If the psychopath is driven by urges, this is not even a consideration for leniency in punishment (except in cases of extreme intensities). If he has no counter-urges to balance the urge to harm, that is a consideration for leniency. Such a person I would not define as a psychopath at all.

We can widen the scope further and ask whether such a person truly has choice. Many people claim that if a person does not have two opposing urges, then he has no real choice. A person who has an urge to harm and has no restraints that try to stop him is, ostensibly, not in a dilemma and therefore has no choice. But in my view this is a conceptual mistake. In my recent books there appears more than once the statement that angels have no choice. Some have tied this to the absence of drives, and when there are no drives there is no choice. But this is not precise conceptually. It is possible that a certain being can choose between two options even though he has no drive that pushes him one way or the other. Their assumption is that in the absence of a drive the angel will obviously do good, because he has no reason to act otherwise. But this is not necessarily a state of absence of choice; it is a state of unbiased choice.[6] They have the ability to act in both ways and therefore they have choice. True, in the absence of drives one might say they have no reason to use it.[7] This too is not precise, for they are supposed to use it by virtue of their free decision and not by virtue of drives (these at most can help). Our responsibility is based on the choices we make and not on the drives imprinted in us.

The psychopath of the type I described here is in a very similar situation. Two paths lie before him, and he has the basic ability to choose between them. Therefore it is clear that he has free will. In a certain sense the problem is that this is too free a will. He lacks drives that limit it. For such a person, it may be that the two ways are equivalent, and it may be that he has a drive to harm without a balancing drive that sublimates the first. Therefore, on the principled level he has full choice, but in the question of culpability and arguments for punishment, the emotional and instinctive plane should certainly be taken into account.

Difficulties with psychiatric expert opinions in court

In my article “Neuroscience and the Law,” I discussed the difficulty of treating a psychiatrist’s testimony as expert testimony. It is not clear to me how a psychiatrist can point to a state in which the defendant lost control completely. How can he assess where his urges lie on the spectrum—how strong or weak—and where the line of responsibility passes? How can he distinguish between the urges and his control over them (did he do the act because of strong urges or because of weak restraints)? I explained there that even brain scans cannot truly circumvent this essential difficulty, for they do not reflect the person’s feelings and mental state but his brain state. What determines a person’s responsibility are his feelings, insights, and decisions—not his brain state. As far as I know, translating the latter into the former is far beyond current scientific knowledge. It is no wonder that judges ultimately act according to their impressions. This is not the most excellent tool, but I do not know a better one. For the same reason, in many cases a judge tends to shift the difficulty onto the expert, since this relieves him of the impossible decision; but in my opinion this has no real justification. I think the expert cannot truly determine a person’s responsibility for his actions.

I also discussed there how the practical questions depend on philosophical and meta-scientific worldviews. To what extent is a human being a dualistic creature (body and soul), and what is the relationship between the two components? The question of determinism is of course in the background here, and as I explained there, it is precisely within a deterministic picture that grave difficulties arise in legal decisions of this sort. In a deterministic picture there is no difference between a psychopath, or a person with some brain injury, and a normative person. Each acts on the basis of his brain structure (there is no element of free decision), and therefore all alike are exempt from criminal responsibility (it is my brain, not me). Within such a picture there is no way to distinguish between an impaired person and a normative person in regard to criminal responsibility, and in fact no way to define criminal responsibility. I explained there that in a deterministic conceptual world one must speak in the language of utility and outcomes—not in the language of justice, guilt, and responsibility. Punishment is not deserved by a person; it is only useful to reform him and society. Therefore the imposition of punishment must take into account considerations of outcomes and utility, not considerations of guilt and justice.

The very status of psychology and psychiatry in this discussion, and their relation to philosophical questions, is very unclear. The experts brought to court themselves are not always aware of the conceptual difficulties underlying their determinations (I have read quite a few foolish things by such folks), but the court sees them as experts and professionals in every respect—like physicists, biologists, or physicians. A professional’s domain must be the facts, and he must know how to detach them from the philosophical and ideological substrate in which he himself believes. The problem is that in the fields of psychology and psychiatry it is very difficult to make such a separation—though in my opinion it is indeed possible (as Yoram Yovell conceded in his debate with me; see at the beginning of his response quoted within Column 26). See also Column 146, which deals with the essential difficulty of defining “disease” and the built-in subjectivity of these definitions.

Summary

In this column I tried to touch on the conceptual plane of moral and legal responsibility and its implications for a psychopath’s responsibility. One can see here that several preliminary decisions must be made before forming a position on the status of the psychopath and his criminal and moral responsibility—and indeed even before gathering the relevant facts that form the basis for such positions. Returning to the psychologist’s comment at the beginning of the column, the conclusion from the conceptual analysis is that I agree in principle. A person impaired in brain or mind who does not understand the difference between good and evil (that is, one who is impaired in any of the first three planes) is indeed not responsible for his actions. But at least some psychopaths are impaired only in the fourth plane, and this does not remove their principled responsibility, though it can be an argument for mitigating their punishment. Of course, there is a continuum of levels of psychopathy, and conceptual analysis can only lay out the broad lines and basic definitions, but not deal with the complex reality itself. Conceptual analysis is a necessary condition that is far from sufficient for the discussion.

[1] A shorter description can be found here.

[2] See Yoram Yovell’s admission against interest in his debate with me on homosexuality, quoted in Column 26.

[3] See, for example, a popular article here. It is also worth reading critical cautions here.

[4] What I read was in a novel, and therefore I have no certainty that this is a scientifically correct description. In places I checked now it seemed that hypnosis is not about freezing the subject’s awareness but quite the opposite: increasing his awareness, attention, and concentration and directing them inward. This appears to be a wholly different mechanism for treating pain (or at least alleviating it). But for our purposes here it suffices as an illustration of a distinction via a claim that could be true (for example with animals, whose self-awareness is certainly less than ours, if it exists at all).

[5] In the third part of the fourth dialogue in my book The Prime Existent (see ch. 11 there), I explained this way also a contradiction in Kant’s doctrine: on the one hand he holds that morality is basically humanist-autonomous and does not require belief in God, and on the other hand he offers a proof of God’s existence from morality. It is the same distinction I made here.

[6] This may be how one should understand the sin of Adam and Eve. According to certain interpretations (R. Chaim of Volozhin and Maimonides in the Guide of the Perplexed), they had no drives (these entered them only after the sin), yet they still sinned.

[7] See on this the analysis of Libet’s experiments in chapter 14 of my book The Sciences of Freedom, and briefly in my article “Neuroscience and the Law.”