Free Will and Choice – Lesson 17 (Attached File Inside)

Table of Contents

• Moving to the summary stage and the next direction
• The article on neuroscience and the law, and the danger of the lack of discussion in Israel
• Multidisciplinarity, failures at the interface, and the deterministic-materialist consensus
• Pro-science bias and the concern about bringing brain scans into the courtroom
• Scientific aura, using the name of science for philosophical views, and Libet experiments
• The role of brain scans in law and the special danger in criminal responsibility
• Pathology, veto, and the distinction between tendency and determination
• Justifications for punishment in a deterministic world and the concept of deterrence as a corrective mechanism
• Reverse implications: the effectiveness of punishment, rejection of retribution, and a vision of brain correction instead of law
• The collapse of the legal distinction between the responsible and the non-responsible in a deterministic view
• A debate about persuasion, reasons, and facade in a deterministic world
• The need for a social-legal position rather than having doctrine determined by brain institutes
• Presenting determinism as scientific fact in articles for jurists
• Determinism as a methodological assumption versus a claim about reality, and the topographical-outline model

Summary

General Overview

The speaker moves into a summary stage of a long track on determinism from a scientific-philosophical perspective, and then intends to move on to Jewish aspects and argue that determinism is not compatible with Judaism, though that topic requires separate treatment. He presents an article he wrote on neuroscience and the law as a framework that summarizes the arguments, the failures, and the picture he is proposing in the legal context, and he emphasizes the danger of a “scientific” deterministic doctrine taking shape and being absorbed by the courts as fact. He argues that neuroscience is saturated with philosophical assumptions and that there is a need for public discourse and criticism so that the legal system does not adopt worldviews as though they were findings, and at the same time he sharpens the distinction between determinism as a methodological assumption in research and determinism as a claim about reality, while defending the libertarian possibility through the “topographical outline” model and the idea of veto in the style of Libet.

Moving to the Summary Stage and the Next Direction

The speaker says that he is entering the summary stage in order to check where things stand and give an overall view of the path they have gone through. He says that afterward he will move into Jewish aspects, including the question whether it is possible to be a believing, committed Jew and also a determinist, and he notes that some claim it is, but he will want to argue that it is not. He distinguishes between the discussion up to this point as a general scientific-philosophical topic and the religious-Jewish discussion that will come later.

The Article on Neuroscience and the Law, and the Danger of the Lack of Discussion in Israel

The speaker says that he wrote an article in a book honoring Menachem Finkelstein, who had been the Military Advocate General and retired from the Central District Court, as part of an article on neuroscience and the law. He describes how in the United States there is already extensive literature and a considerable number of cases in which neuroscience appears in court, whereas in Israel the issue is barely felt in the courts and in academic discussion, and he sees that as a danger. He argues that the issue will arrive, and if it arrives after a doctrine has already taken shape, judges and jurists may accept the conclusions of brain researchers as expert determinations and as scientific data, even though the doctrine is saturated with philosophical assumptions that go beyond the findings.

Multidisciplinarity, Failures at the Interface, and the Deterministic-Materialist Consensus

The speaker writes and emphasizes that discussion in neuroscience requires very broad multidisciplinarity, including philosophy, physics, neuroscience, biology, computer science, logic, mathematics, psychology and psychiatry, neurophysiology, and medical instrumentation. He argues that this combination creates dangers at the interface between languages and fields and leads to errors, such as brain researchers making mistakes in philosophy and philosophers making mistakes in neuroscience. He warns that a deterministic-materialist consensus is developing in brain research institutes and is gradually being presented as a scientific finding, to the point where a brain researcher may appear in court and declare that a person is a “deterministic machine” and present a brain image as establishing that.

Pro-Science Bias and the Concern About Bringing Brain Scans into the Courtroom

The speaker brings up Nita Farahany, a law professor at Duke University, as someone who opposes bringing brain images into the courtroom because jurors believe anything scientific when graphs, images, and researchers in white coats are presented. He emphasizes that the danger is not that science is unreliable, but that science is not absolute, and that in such situations people lose their critical sense, and he adds that this is true of judges as well, not only jurors. He gives the example of the “monkey trials” in the United States around evolution, where a judge is required to decide based on expert testimony and tends to rely on counting articles and experts, and he illustrates how a scientific aura becomes decisive even when the arguments being made are not good ones.

Scientific Aura, Using the Name of Science for Philosophical Views, and Libet Experiments

The speaker argues that people use the name of science in order to gain trust for philosophical views, and he identifies this especially in neuroscience. He goes back to Libet experiments and notes that in 2015 an experiment in the style of Libet was presented on phenomena of choosing rather than picking, and therefore “all the results change,” yet people still say, “there are Libet experiments, therefore…” as though this were a scientific decision of the matter. He argues that the claim is saturated with philosophy and not just science, and that in court this is dangerous because the judge is used to receiving scientific findings from experts and cannot go into the depth of the many fields of knowledge involved.

The Role of Brain Scans in Law and the Special Danger in Criminal Responsibility

The speaker describes how brain scans are used in court to prove psychological harm, to test truthfulness, and to present a pathological brain in the context of criminal responsibility. He says that cautious experts mainly warn against the incompleteness of the information, and sometimes also against the illusion that a scan is a simple “photograph,” even though at times it is the product of processing, averaging, and statistics, and he compares this to presenting RP in Libet experiments as an average of very many cases. He says that he is willing to accept a contribution from neuroscience in contexts such as measuring suffering or testing truthfulness, but he focuses on criminal responsibility and argues that the fundamental problem is that the brain does not necessarily determine behavior if you are a libertarian, because a scan can indicate tendencies only and not rape, and according to the veto view one can refrain from acting even when there is RP.

Pathology, Veto, and the Distinction Between Tendency and Determination

The speaker acknowledges that there are pathological situations in which a scan can support the claim that a person is not responsible for his actions, such as significant brain damage or a condition in which “he does not have the ability to impose a veto,” and he mentions examples like a sociopath or psychosis. He argues that in many cases a brain state points only to a tendency and not to a necessity, and therefore presenting it in court as though “the brain picture” allows one to infer criminal responsibility directly is mistaken and dangerous. He emphasizes that the dispute cannot be decided scientifically and that it is a philosophical question.

Justifications for Punishment in a Deterministic World and the Concept of Deterrence as a Corrective Mechanism

The speaker says that the intuition is that in a deterministic view there is no point in punishment, but he presents answers from determinists who argue that punishment does have meaning and even justification. He describes one claim according to which the judges too are “under the rule of determinism,” and therefore they are compelled to punish just as the criminal is compelled to commit the offense, in which case the whole system of responsibility is a facade. He adds a more “sophisticated” deterministic claim according to which punishment is justified because it prevents future events by changing “the structure in the brain” and activating deterrent mechanisms as mechanical conditioning, so that punishment functions as a deterministic corrective effect on the “mechanical calculation” of potential offenders.

Reverse Implications: the Effectiveness of Punishment, Rejection of Retribution, and a Vision of Brain Correction Instead of Law

The speaker argues that if the justification for punishment is deterrence and correction alone, then punishment should be judged only by its effectiveness, and he cites claims and studies according to which prison does not improve things and sometimes worsens criminality, and the death penalty does not deter. He explains that a libertarian can justify punishment even if it is not effective because there is also an element of retribution or “institutionalized revenge,” whereas for a determinist there is no place for retribution, only for correction. He formulates a principled conclusion according to which, if it is possible to correct a criminal’s brain with a neurosurgeon, there is no need for prisons, courts, or rules of evidence, but only for medical diagnosis and correction. He even argues that according to this picture there is no need for the person actually to commit an offense in order to take action, because discovering a “pathological brain” can justify treatment to prevent future criminality.

The Collapse of the Legal Distinction Between the Responsible and the Non-Responsible in a Deterministic View

The speaker returns to a common legal distinction between a person responsible for an act and one who is not responsible or acted מתוך “an impulse that could not be overcome” or a momentary lapse of sanity, and he notes that in such situations there is criminal exemption even though dangerousness is still addressed. He argues that according to determinism the distinction is absurd because “from the determinist’s perspective, all of us are like that,” and anyone who committed an offense was compelled to do so and therefore acted under an impulse that could not be overcome. He cites a passage by Alexandrovich, an Israeli psychiatrist, who argues that “according to our scientific deterministic approach,” the way to test whether an impulse was controllable is that if the person was dragged after the impulse, then the impulse was stronger than the restraint mechanisms, and that any attempt to determine that he could have controlled himself denies the deterministic outlook and amounts to speculation without scientific basis.

A Debate About Persuasion, Reasons, and Facade in a Deterministic World

The speaker reconstructs an exchange with participants who argue that in a deterministic world the judge too is “unable to overcome it,” and all judgment is just physics, so the discussion is pointless. He replies that determinists nevertheless do present justifications for punishment, and in doing so they appeal to the human mechanism of justification and persuasion, even if from their perspective persuasion is just mechanical change. He insists that there is a process that changes positions even in a deterministic picture, whereas his opponents argue that everything is an illusion and that discourse itself collapses under determinism.

The Need for a Social-Legal Position Rather Than Having Doctrine Determined by Brain Institutes

The speaker agrees with the claim that a judge may say that he remains in doubt between two sides and therefore will not be able to act, and from this he concludes that there must be a public and intellectual discourse that shapes what stands at the foundation of the legal system. He argues that this is a legal doctrine and not a scientific finding, and therefore the decision must not be left to “dark rooms inside brain research institutes” so that the philosophical worldview of scientists becomes the basis of the law. He adds that not all brain researchers are determinists and mentions examples of religious researchers, including Sompolinsky as a physicist and a religious brain researcher who is a determinist, and he says he will return later to the relation between determinism and religion.

Presenting Determinism as Scientific Fact in Articles for Jurists

The speaker argues that the warnings of cautious experts focus on the incompleteness of the information and not on the fact that determinism is an assumption without scientific basis, and he defines it as a methodological assumption useful for research but not as a proven claim about reality. He cites an article by five well-known brain researchers, including Michael Gazzaniga, who present “postulates” for jurists such as “all behavior is a function of genes, environment, developmental history, and evolutionary processes,” and “all behavior is biological.” He quotes wording that sounds qualified, according to which understanding behavior as biological does not mean that it is biologically determined in a reductionist way or that it can be reliably predicted, but he argues that the qualification deals only with the difficulty of prediction and not with the question whether the future is fixed, similar to the confusion between chaos and freedom. He emphasizes that even a sentence like “there is no specific brain structure for crime or for obedience to the law” is attached to an explanation that the categories are “social,” so determinism remains intact, and he concludes that a deterministic philosophical view is being presented as a scientific finding without argument, which is dangerous when it is absorbed as expert testimony.

Determinism as a Methodological Assumption Versus a Claim About Reality, and the Topographical-Outline Model

The speaker clarifies that a brain researcher “must assume” determinism as a methodological assumption in order to look for causes, causal factors, and mechanisms, but does not have to be a determinist with respect to reality itself. He gives the example of a soldier who goes out on patrol and assumes there is an enemy “behind every bush” as an operational assumption even though he does not actually believe that. He compares this to the discussion of vitalism, and argues that science did not “show that it is false,” but rather that sometimes methodological assumptions are made in order to enable research, and then an unjustified leap is made turning them into claims about the world. He concludes that if the world is libertarian, there is a qualified place for neuroscience that maps the “topographical outline” of tendencies and forces, but the decision whether “to go down into the valley or climb the mountain” remains the person’s and is not dictated by the map alone, and about that neuroscience and psychiatry can say nothing.

Okay, I’m now moving on to two more stages in the process. One stage is the stage of summaries—where we stand, and to look a bit more generally at this whole path we’ve gone through, which is already quite a long path. After that I want to get a bit into Jewish aspects. Up to this point I’ve talked about this as a kind of general scientific-philosophical issue; I haven’t dealt with the question of whether determinism contradicts Judaism in some sense, right? Can you be a believing Jew, a committed Jew, and also a determinist? There are those who claim yes. I want to argue that no—but that’s a subject that requires separate treatment. So first of all I’m going into the summary stage. I’ll do the summaries in two forms. First, I’ll go into an article I wrote that just came out about a month ago, something like that, in which I deal with neuroscience and the law. What’s the implication for the law? Because what’s there, basically, are summary conclusions and conclusions from the path we’ve gone through, as applied to the legal context. And you can see in the discussion there—it’ll make for a good summary—because in that discussion we can show: first, what claims come up; second, what common failures appear in that discussion; and third, what the picture I’m proposing says about what’s going on there. After that I’ll do a summary—here I’ll use a legal discussion, but it basically serves as a kind of summary of what we’ve done—and afterward I’ll really do an organized summary, to give everyone the possibility of forming a position for himself in light of everything we’ve gone through. And then after that I’ll get to the Torah side of things, let’s call it that. So I’m starting with the legal discussion.

This article was written for a book in honor of Menachem Finkelstein; it came out about a month ago or something like that. He was the Military Advocate General, and now he’s retired from the Central District Court. We’re good friends. They put out a book in his honor, and I wrote an article there on neuroscience and the law. And during the research or preparation for writing, I started going through some of the literature being written in the legal context on these topics. Now it turns out that in the U.S. there’s already quite a lot of literature. Neuroscience is also already reaching the courts in increasing ways; it’s no longer a negligible number of cases. True, the United States is huge, so I have no idea what the proportion is relative to the general legal material, but you can definitely already find quite a few cases there in which neuroscience appeared in court. In Israel, very little. Both in the courts and in the academic and theoretical discussion in Israel, somehow the issue is not very noticeable, it doesn’t appear much—and in my opinion that’s very dangerous. It’s dangerous because in the end this issue will arrive. And when it arrives, it may be after a doctrine has already crystallized, right? An overall principled approach in the framework of neuroscience will already have formed, and then the jurists and judges will have to accept it as though it were an expert determination. That is, brain researchers have already reached such-and-such a conclusion, and now the court can only accept those things as scientific data. But as we’ve seen quite a bit along the way, the formation of this doctrine, the formation of this neuroscience outlook, is saturated with philosophical assumptions, saturated with many, many things beyond purely scientific findings. And so in my view it’s very important that public and legal discussion accompany the formation of the doctrine—not just accept the doctrine as already existing and now ask what to do with it. Rather, the development or crystallization of this doctrine itself needs to be accompanied by criticism and public discourse, which very often doesn’t really happen, at least not in Israel. We live in a troubling split which in the end can blow up in our faces in court, and that really was my motivation for writing this article.

And I wrote there in the introduction that today’s discussion in neuroscience requires extremely broad and varied multidisciplinarity. You need philosophy, physics, neuroscience, biology, computer science, logic, mathematics, psychology and psychiatry, neurophysiology, medical instrumentation, mathematics—did I say mathematics? I already don’t remember—anyway, lots and lots of disciplines. And precisely because of that, you have to be very, very careful when accepting the conclusion, because anyone who says something in this field has to take responsibility for many aspects, some of which he is not an expert in and probably also doesn’t understand. And therefore the combination between disciplines can lead to a problem at the seam. That is, these people speak one language, those people speak another language, they form a conclusion together when in fact it isn’t correct to combine those two things together. And you can see many examples of this among brain researchers who make mistakes in philosophy, and philosophers who make mistakes in neuroscience, and mathematicians who don’t understand physics, and physicists who don’t understand philosophy, and all sorts of things of that kind. So I think that precisely because of this multidisciplinarity, one has to be very, very suspicious of what’s going on there.

At the same time, as I’ve already noted more than once, in brain research institutes a kind of deterministic-materialist consensus is developing, and slowly they’re beginning to express it as though it were some scientific conclusion or scientific finding. That is, a brain researcher can stand in court and inform the judge that a human being is no more than a deterministic machine—here is a scan of his brain and these are the conclusions. There’s nothing more the judge can do with that; assuming he accepts it as expert testimony, what can he do with such a thing? In the end, the brain researcher will determine the defendant’s fate, not the judge. Now, if the brain researcher is right, then fair enough—then maybe we really can fire the judges and put computers in their place—but the question is whether he’s right. And very often a judge won’t get into—and maybe also can’t get into—the question whether these statements are actually well-founded scientifically, or whether, without even realizing it, the expert who is testifying is mixing worldview assumptions into the presentation of the scientific picture.

There’s a very interesting passage by someone named Nita Farahany, a law professor at Duke University. She opposes the introduction of brain scans into court because jurors believe anything scientific. You show them graphs, images, scientific results, people in white coats and with those honorary-doctor hats, and you’ve lost them. In the end they accept whatever you say, because there’s a pro-science bias in our culture, and that’s dangerous. It’s dangerous not because science isn’t reliable, but because science isn’t absolute. And you tend to lose your critical sense when the picture is presented to you in that way. When someone presents terms from neuroscience, images from brain scans, and uses scientific terminology, jurors aren’t going to start arguing with him. In other words, these are the facts, and from this point on we’ll begin conducting ourselves or making decisions. By the way, she talks about jurors; I would say the same thing about judges. That is, I don’t think judges have any greater ability, motivation, or tools to deal with findings like these when they’re presented to them.

An example of this—maybe I mentioned it once, I don’t remember anymore—is what are called the monkey trials in the United States, all kinds of trials around evolution, where expert testimony is presented to the judge. The creationists bring their evolution researchers, and the neo-Darwinians bring their evolution researchers, and the judge is supposed to decide. There was Judge Jones in Pennsylvania, I think in ’75 or something like that—that was the last trial of that kind that I know of at least; there have been several of them in history—and he had to decide whether evolution is a scientific theory or not. Okay? Now how exactly is a judge supposed to decide such a thing in the framework of a trial? He’s not going to go study a bachelor’s, master’s, and PhD in philosophy and philosophy of science. He’s also handling other cases at the same time; he doesn’t have too much time to get into the scientific and philosophical material. So he asks for expert testimony. So they bring him expert testimony—what did he do there? He says, look, I see here something like fifty articles by experts saying that evolution is a scientific theory. And you, the creationists, brought only, I don’t know, three. Okay, so it’s clear to me that this is well founded; this is a scientific theory, and therefore everything is fine—and he threw them down the stairs, so to speak.

It reminds me a bit of Rabbi Ovadia’s rulings in his responsa, where he counts a hundred later authorities (Acharonim) who say one thing and another three who say something else, and therefore that is the Jewish law. By the way, he doesn’t really do that—it’s only a kind of image or a tool he uses. Rabbi Ovadia is far from merely counting heads the way his public image suggests. In any case, there it really was like that. Now, I as someone who actually disagrees with the creationists on many things—still, in that context I very much agreed with the arguments they raised. And you feel helpless, because these guys are talking nonsense, but they present it in white coats and with scientific terms and present the whole thing as some kind of scientific picture. And no judge will be able to come out clearly against fifty experts renowned in their field and say that they’re wrong. That’s just not going to happen. It’s not reasonable that a judge would do such a thing. Even if he felt that way, I’m not sure he would be willing to stand behind it and write it. It looks irresponsible, it looks unserious—what, are you smarter than all the experts in the field? And the answer is yes, he is the one who has to decide. Just as whenever there’s some dispute and the dispute is saturated with philosophy, not just a scientific dispute, there’s no avoiding it: the judge is the one who has to decide.

It reminds me that at the end of the 1990s, I think it was, a report came out called the Harari Report on science education. Harari was president of the Weizmann Institute. And all kinds of important people sat there—scientists, there was also some general there and I don’t know how many other important people sat on the committee—and they issued some report. One of the professors at Bar-Ilan—I was then… no, that was probably the 1980s already. I was then a doctoral student at Bar-Ilan. No, early 1990s. I was a doctoral student at Bar-Ilan, and one of the professors came to me; he was also actually a member of some forum that was supposed to decide, on behalf of the Ministry of Education, what to do with that report. He brought me a booklet with preliminary data, sort of an outline of the report, before writing the final report. He told me—he knew I was a bit interested in these things—that he’d be happy to get my opinion on what was written there.

Now, I flipped through what was written there, and it was a scandal. It was a scandal because they summarized there a collection of recommendations without any reasoning whatsoever. That is, there were tables there of how much the State of Israel should invest in laboratories, how much it should invest in physics, how much it should invest in mathematics, in what format, how many hours, how much of this—but what was all this based on? Nothing. There were no reasons. More than that, no one even asked himself how important science education really is. After all, whoever has to coordinate this and say, wait a second, there is science education, but we also have other goals in education—so you have to look at it not from the perspective of scientists but from a broader perspective, to see what portion of the whole should be taken by science. If you give the mandate to decide to scientists, then of course you’ll get that the entire education system should deal only with that. And I told him, listen, this report is a scandal. It’s a scandal because there is no basis there; the Minister of Education has no chance—or the people on his behalf have no chance—of dealing with such a thing when Professor Harari arrives, right? A well-known physicist, president of the Weizmann Institute, together with all kinds of other smart and important people, and they recommend recommendations—what is the Minister of Education supposed to say? I don’t accept this, you’re talking nonsense? He can’t say such a thing. But they are talking nonsense, and he shouldn’t accept it. And this scientific aura is one of the things that greatly magnifies the problem I’m talking about. Because people are speaking here in the name of the scientific aura, using that aura, and in the end creating trust in things that are not science. That is, they use the name of science in vain in order to get the trust that science deserves for philosophical conceptions. And that’s what happens in neuroscience.

When we talked about the Libet experiments, for example, I showed you that in the 2015 experiment—we heard a segment from a lecture by Liad Mudrik, if you remember—and we saw there that suddenly they did a kind of Libet-like experiment on phenomena that are choosing, not phenomena of picking, and all the results changed. Now to this day you can hear scientists standing in court or writing in articles or whatever saying that there are Libet experiments and therefore… Or maybe there were some problems with it, I don’t know, maybe someone could find all sorts of problems there. The point is that there is a statement here that is saturated with philosophy; it isn’t just science. And when something like this is presented in court, it’s very dangerous. It’s dangerous because a judge is used to receiving scientific findings from experts—and rightly so. That’s what he’s supposed to do. He isn’t supposed to get into physics, mathematics, computer science, psychology and psychiatry. And when such findings are presented to him as scientific findings, he will accept them. And that’s very problematic.

So in the article there, in order to explain the matter, I briefly explained what determinism and libertarianism are, I explained the topographical outline model, I tried to show what failures there are in deterministic arguments that basically rely on there being correlations between our psychological structure and what we do. But as I said with the model of the topographical outline, these are only correlations. In other words, the topographical outline causes us to have tendencies to act this way or not to act another way. But in the end the decision is our decision, and we can veto it, in Libet’s terms. We can basically impose a veto even though we have an RP, a readiness potential, that wants to cause us to do something; we can always impose a veto—or at least there is a conception that one can impose a veto, and it cannot be scientifically ruled out, and therefore the question is a philosophical one and not a scientific one.

Now I’ll bring you a few examples that I brought there in this article, so you can get an impression of what is presented to jurists—mainly to jurists, because that’s what I dealt with there, but this is true generally, though to my mind with jurists it’s more dangerous. So look at a passage from an article by someone named Avery. Yes: “Neuroscience has led to confusion concerning the Supreme Court’s dualist distinction between bodily and mental harms, a doctrine that is quickly becoming a vestige of more scientifically naive time.” In other words, he’s saying, basically, neuroscience is leading to confusion in the Supreme Court—but of course in all the courts—whose discourse is dualistic. There’s a dualistic distinction between bodily and mental harms, and this doctrine is already an outdated doctrine that belongs to naive times. Because today, in other words, we already know that there’s no such thing as mental harm; it’s all organic harm. It’s all in the brain. There’s no other thing. You understand? He doesn’t even bother to substantiate this. He just says, yes, there was such an approach, it was a naive approach from the past, today we already know otherwise. And now he presents that as a claim before the Supreme Court. What is the Supreme Court, the Supreme Court justice, supposed to do when he reads such a thing? What, he wants to use scientific approaches that are long outdated? Naive scientific approaches?

All legal language is basically language that uses dualistic and libertarian discourse in a very clear and unequivocal way. There is no such thing as a jurist or a judge who speaks in deterministic language. There is no such thing; it doesn’t happen. The legal system is so saturated with dualism and libertarianism, saturated with it. And suddenly in neuroscience some completely opposite consensus is crystallizing. Now when they meet—and they are already beginning to meet now, more in the United States but also a bit here—when they meet there will be some conflict here. Because all the dualistic discourse—that’s what he mentions here, that the discourse in court is dualistic. Is the person responsible for his actions or not responsible for his actions? Did he have an irresistible impulse or didn’t he have an irresistible impulse? The neuroscientists say that all this is nonsense. There’s no such thing… Neuroscience—not neuroscience, neuroscientists say that all this is nonsense. Neuroscience doesn’t say it. And they say it is some outdated discourse from the past that somehow took root in the courts and in legal thought, but this whole story is really stuff that has passed its expiration date.

By the way, these things have already come up among psychiatrists. Many psychiatrists also write and say things like this. Maybe I’ll bring later some passage from a psychiatrist. But in neuroscience it looks more well-founded, with graphs. Graphs, with physicists, yes, something with mathematics. In other words, it sounds far more crushing, far stronger, and in the end it really gets treated much more seriously. Psychiatrists usually speak more cautiously in court. They write less cautiously, but in court they speak more cautiously, as far as I’ve seen. Neuroscientists don’t—they’re not cautious to the same degree, because they’re sure they have a scientific discipline and they know what’s going on there.

The basic point—yes, in court neuroscientists, when they do appear, appear in several contexts. They appear, for example, to prove mental harm. If someone caused me harm as a result of something, you can bring a brain scan to show that I really am suffering. That’s one kind of testimony you can use brain scans for. Another thing: you can try to check whether the person is telling the truth as a witness. Bring a brain scan and see maybe he’s actually a sociopath and a pathological liar, I don’t know. Or that he’s lying right now, because I can see in all sorts of indicators that the man is lying, like polygraphs for example or something like that. You can use brain scans to show a pathological brain in relation to criminal responsibility. Is a person responsible for his actions or not responsible for his actions? So you can present a brain scan and show that he has a defective brain, and such a person is not responsible for his actions. In other words, brain scans are entering the courtroom in several different areas.

The attitude of experts—even the cautious experts, and I’ll show you examples later—even the cautious experts, when they refer to these findings, warn jurists because the information in our hands is incomplete, and sometimes the scan doesn’t tell the whole story because there are other areas in the brain that may also influence things. We don’t always know which brain area affects what, and so on. In short, the basic point is that the information in our hands is incomplete. Beyond that, here and there you can also hear this, though it’s rarer: one also needs to present to jurists the fact that when a brain scan is shown to you, you think it’s a photograph, like taking a picture with a camera. But it really isn’t. In other words, scans of this kind, at least some of them, are scans that have gone through many processes of processing and averaging, and a lot of statistics and data-processing stages were done to them. This is not raw information photographed by a camera and displayed to you. These averaging processes can be critical. An example of this we saw in the context of Libet. In the Libet experiments, when they show the RP, that readiness potential, nobody ever saw such a readiness potential in the simple way it is shown in graphs in articles. It is an average over many, many, many cases, and then you see some correlation between the person’s action and the readiness potential that appears in him. But as long as that correlation, as I said there, as long as that correlation is not one—that is, not one-to-one—you cannot prove determinism from it. Now if you do not present to people that the graph they are seeing is in fact a graph that has been averaged and not a raw picture of a single individual, then you’ve prevented them from having very important information. I’m not sure the judge even understands what averaging means and what averaging does to the results, and to what extent he is supposed to take that result into account if it has gone through such complex processing.

But here I want to focus not on the question of brain scans as a measure of suffering or as a measure of truth-telling. In that context, I’m even willing to accept the contribution of neuroscience. I want to speak in the context of criminal responsibility. In the context of criminal responsibility, the problem is not only imprecision, which they do indeed talk about, as I said before. There is a much more fundamental problem. In the context of criminal responsibility, there is a problem because the brain does not necessarily determine the person’s behavior—if you’re a libertarian. The determinist says: the moment you see the brain, you know what a person does or will do or is doing. The libertarian says: what are you talking about? When you see the state of the brain, you know what tendency the person has. What he wants to do, or what he… has some tendency toward, what he inclines to do. But in the end it may be that he imposes a veto on it and doesn’t do it. Therefore, to look at a brain scan and infer from it conclusions about criminal responsibility is very dangerous, because the brain scan only tells me the person’s tendencies, but it doesn’t say that he was compelled to follow them. That’s a completely different statement.

Now there are pathological situations in which one can show through a brain scan that a person really is not responsible for his actions. Say when he has some very significant damage in the brain, he doesn’t have the ability to impose a veto. He’s a sociopath, okay? He has no responsibility-capacity to impose a veto. In such a case—or if you see, I don’t know, that he has some psychosis, that’s more a psychiatrist’s question—but also some psychosis that says he is not controlling his actions. In such a case I understand. But very often the brain state only shows the tendency, what you tend to do, and it cannot say what you actually do, at least according to the libertarian. And when this is presented in court, it is presented as though this is the picture of the brain and from here you can directly infer the conclusion what that person will do and how responsible he is for his actions.

The point is that according to this view, ostensibly there is no justification at all for punishing people, punishing criminals, because where the brain dictates what you will do, then everything you do you are basically compelled to do, so you are responsible for nothing that you do in the materialist-determinist conception. But on this—I think I mentioned this already in one of the earlier classes—on this the determinists have answers. They claim that criminal punishment has meaning even if you hold a deterministic picture. Why? They see the… First of all, the answer is—that is, first we punish because we too, the judges, are under the rule of determinism. That is, we too are compelled to punish, just as the criminal was compelled to commit the crime. So what are you telling judges—not to punish because he isn’t responsible for his actions? The judge also isn’t responsible for his actions. The judge is also a human being, so he punishes because he is compelled to punish just as the criminal commits the offense because he is compelled to commit offenses. In other words, this whole business runs on some fictions—responsibility for an act, lack of responsibility for an act. Nobody is really responsible for any act, and nobody judges anyone based on responsibility for an act, because the judge too is not responsible for his judgments about the criminal’s responsibility. In short, the whole business is a facade. There is really nothing behind it, just illusory feelings that don’t exist.

So why then is there still some justification? That’s the reason why they punish. The reason why they punish is because I am compelled to punish, because the judge is a human being and he is compelled to punish. But the determinists claim more than that. They claim not only that there is a reason for punishment, but that there is also a justification for punishment. Even within a deterministic worldview there is a justification for punishment. What is the justification? The justification is that punishment can prevent future events. And again—not prevent in the humanistic-libertarian way, that if you are punished then you’ll think it over and perhaps decide not to commit the offense in the future. You don’t think anything over. You didn’t think it over in the past and you won’t think it over in the future. You may weigh kilograms, but you won’t weigh courses of action. What they claim is that deterrence itself changes the structure in the brain, making us less likely to sin. In other words, punishment has a deterministic corrective effect. After all, when a person knows that something will hurt him, he won’t do it. According to the determinist he won’t do it not because he exercises judgment and reaches the conclusion that he doesn’t want to do it, but because he has some inherent conditioning not to do things that will hurt him. Now, if I punish him, then that too will be taken into account in his future considerations when he comes to sin—or in the considerations of other people. When they know that that criminal was punished, then I now consider whether to steal or not to steal; I’ll think twice because I know people are punished for such a thing and I don’t want to go to prison. So the argument is that there is justification for punishment even in a deterministic worldview, because punishment in the end, even in a deterministic world, causes correction. After all, in the end a person really does make calculations; it’s just that those calculations are forced on him in the deterministic worldview. But still, a person won’t do something that hurts him and will do something that is pleasant for him, that benefits him. On that too they agree. They just claim that it isn’t judgment but mechanical computation. Fine—then let’s change the mechanical computation of the potential criminal. Once we punish criminals, that will change the mechanical calculation both for them and for other people, and in that way we will prevent future criminality.

Now, what happens as a result of that—there are several implications to this. And ostensibly the point that comes out of here is that the more sophisticated determinists are actually claiming that there is no practical implication to determinism. And therefore there’s no problem: this is a position one can accept, nothing really happens, it has no impact on our lives. Maybe a less pleasant feeling, maybe a different feeling, but in practice our practice will continue to behave as usual. We will judge, and we will punish, and we will make law, and we will determine—everything will be exactly as in the libertarian, dualistic worldview. In the deterministic worldview too everything is done as usual, continues to be done as usual. Now I want to show that it’s not exactly like that.

Rabbi, excuse me, would the determinists say that there can’t be a change in the brain’s processes? That whoever is a certain way is born that way until he dies? Or is it really that if he gets punished, then his brain also changes a bit and then he’ll have a different tendency?

Determinists…? I’m repeating what I just said. That’s what I said. Therefore the determinists say there is reason to punish, because punishment will change the brain structure, and then the person won’t sin. Okay, exactly—there is reason to punish even in a deterministic worldview. That is exactly what they claim.

Now I want to show several implications, but these implications are the opposite of the initial intuition. The initial intuition says that in the deterministic worldview there is no point in punishing. So here, they explained to you that there is a point in punishing. But if so, now the opposite picture emerges, because now we have to check the effectiveness of punishment. Notice: punishment is no longer retribution to someone who behaved badly. There is such a conception of punishment too—that someone who behaved badly deserves retribution. Yes, revenge, institutionalized revenge—not the revenge of a private individual, but society, through the courts, takes revenge on him. Yes, institutionalized, controlled revenge—that is part of the purpose of punishment. Someone who does something wrong deserves a sanction, not only because of future deterrence so that he won’t do it again, but, so to speak, to play the role of the Holy One, blessed be He. Yes, he deserves punishment because he was not okay. Besides that, of course, there are also conceptions of deterrence and conceptions of protecting society and all sorts of other considerations that underlie different theories of punishment. Okay?

Now the determinist basically grounds punishment in deterrence. In his world there is no punishment of retribution. Retribution is irrelevant. Retribution—what’s retribution? It’s not that he was not okay. There is no “okay” and “not okay” here. There is someone with a damaged brain; you need to take him to someone who can fix his brain. Punishment is a way of fixing his brain. Someone else doesn’t have a damaged brain, so there’s no need to fix him. In other words, there is no question here of a person who was okay and a person who was not okay. There is no room for judgment here, no room for moral and legal responsibility. What there is here is merely a means of correction. It’s a little reminiscent of the gulags, yes, in the Soviet Union or in China and in North Korea today, where people are sent for re-education. But that is basically the determinist’s conception of punishment. Prison is a re-education camp—incidentally, a camp that usually fails. And that’s the big question, because in the determinist’s world punishment should be judged solely by its effectiveness. That is, if punishment achieves its purpose, then indeed there is reason to punish, if it prevents criminality. But there are many arguments, supported also by data, that punishment does not achieve its purpose. Punishment does not achieve its purpose. That is, people enter prison and come out bigger criminals than when they went in. The death penalty—on that there are studies and surveys and many articles showing that the death penalty does not deter. With serious crimes, a person does not weigh before doing them whether there will be a death penalty or not; he does it. A person who murders murders whether there is a death penalty or whether there is not. That is the claim of many studies, many people. In such a situation there is no reason in the world to continue punishment.

That is, understand: the libertarian can still punish even though it is not effective—why? And this is the failure in the opposite direction. Many times people say to us: it’s not effective, and therefore obviously there’s no point in punishing. Not true. Who said effectiveness is the only criterion? If I think punishment is also supposed to serve as revenge, not only as a means of deterrence or preventing future crime, but revenge—a person did something wrong, he deserves to get hit for it—then even if that does not prevent future criminality, there is still justification for imposing punishment.

Maybe punishment prevents some criminality that never reaches the point of actual crime?

Yes, that’s why I said earlier—that’s exactly what I meant when I said there is much to discuss here. Because when people go into prison and come out bigger criminals, that still doesn’t mean it isn’t effective. It could be that the threat of going to prison influences normative people not to get into that situation in the first place, and that is hard to measure. Therefore the fact that the people themselves do not undergo a process of improvement in prison does not mean there are no positive results. I don’t know—it’s a much more complicated question. But I’m discussing this now at the principled level, so I’m not going to enter this topic here.

And what I basically want to claim is this. A first claim is that according to the determinist there is no justification for punishment that does not achieve results. Since punishment is a function of results, and only results. Therefore—or I’ll formulate it even more strongly—in principle, if I could take this criminal, send him to a neurosurgeon who would fix his brain and he would stop being a criminal, there would be no need for prisons and no need for courts and no need for anything. All we would need to do is make sure we all go to a neurosurgeon, he arranges our brains, gives us normative brains, and everything is fine. There is no reason to punish, no reason to judge, nothing. Once again, the re-education camps, yes, that’s…

Wait. Is the result at the personal level or at the social level? It could be that personally it doesn’t help, but you know that the result could also be at the social level, that others won’t do it.

That’s what I said earlier. So I said, fine, fair enough—but even so, then send everyone to a brain surgeon. Require all people, after the COVID vaccine, to go also to a brain surgeon. He’ll do a brain scan, check whether their brains are normative, fix them, and everything will be fine. There’s no problem. After all, in the end that is what punishment does. More than that, according to this conception you don’t even need the crime in order to punish. If I happened to do a brain scan on someone because he came with some illness, I did a brain scan and suddenly discovered that he has a pathological brain. Now in the meantime he hasn’t murdered anyone, hasn’t stolen from anyone, nothing. The moment I discovered he has a pathological brain, the judge should send him to a neurosurgeon. It has nothing at all to do with whether he committed a crime or not. All you need to do, just the same, is fix him in order to prevent future crime. So what do I care if he committed a crime now or not? What you need is to fix him so that he won’t commit a crime in the future. So in principle this is not about retribution for a crime that you committed at all. What you need is only to make sure we’ll have a rosy future. That’s all. And that’s basically a bit of what the deterministic world asks for.

The forecast is that everyone will commit the same offense?

What? I can’t hear.

If you scan all brains, or his brain, then you’d have to come and say that all those who have the same thing will commit the same offense.

Of course—that is exactly what the determinist says. Exactly. That is what the determinist claims. The determinist claims that the structure of the brain dictates all our behavior. If so, then you simply need to fix people’s brains and everything is fine. Regardless of whether they are criminals or not criminals, whether they committed an actual offense or did not commit an actual offense. You don’t need evidence of a crime. All the laws of evidence would be abolished, all criminal procedure would be abolished. All you need is a diagnosis from a doctor. That’s all. Now I’ll say again: we still don’t have complete information, so this is a hypothetical statement. But at the principled level there are determinists who will tell you this seriously. Once our information is complete, indeed that is what should happen. Absolutely. By the way, psychiatrists already say things like this too, even before neuroscience.

I’ll give you another implication. It is accepted in the legal world to distinguish, as I mentioned before, between a person who was responsible for his act and a person who either generally is not responsible for his actions or who had a momentary episode, yes, some irresistible impulse, and he was not responsible for that act that he committed. In such situations the legal system sees the person as not responsible for his actions. I’m not going into details; there are details and qualifications here, but in principle the legal system sees the person as not responsible for his actions and therefore he is exempt from criminal liability. Of course you still have to send him to a psychiatrist to see whether he is dangerous and to assess dangerousness or neutralize dangerousness, but in terms of retribution, the punishment he deserves—he does not deserve punishment because he is not guilty and was not responsible for the act; all is fine.

Now according to the determinist, this statement is absurd. From the determinist’s point of view, all of us are like that. Once you committed an offense, obviously you had an irresistible impulse, because if you did it, you were compelled to do it. That is the whole essence of determinism. Therefore everyone who committed an offense obviously was compelled to commit it. We all acted under impulses that were irresistible. We are all basically the product of our brain structure. Our actions are the product of our brain structure and nothing else. There is nothing besides that. Therefore this whole distinction between someone who has criminal responsibility and someone who does not have criminal responsibility—or between an insane person and someone who isn’t insane, for example—is absurd. It has no meaning, no relevance to the discussion.

Suppose some insane person comes to court, and not even just a momentary impulse but a fully insane person, a person not responsible for his actions at all. Okay? Completely. Fine? Now we discover that this person is prone to murder. So of course we’ll send him to that same neurosurgeon just as we send the criminal who is responsible for his actions.

Actually I want to say that I don’t understand the whole discussion from the beginning. Yes. According to determinism, the judge also has an irresistible impulse. Everything he judges, and the police officer who brings him to the judge—that’s all physics. So what difference does it make whether this one is this way or that way? The judge judges because he must judge, and he must send him to prison. All his decisions are deterministic. So what’s the whole story?

So I’ll answer in two ways. First, I already noted this earlier. I said that the whole discussion of the justification of punishment made by the determinist—that is, when he says not only that I am compelled to judge, but that it is also justified to judge—is self-contradictory, because you are not supposed to be looking for justifications. But second, that’s exactly the point. Because when we think about punishment, we do think in terms of justifications. Now true, from the determinist’s point of view that is a fiction, but it doesn’t matter. We think in terms of justification. So now the determinist says to you: come, I will appeal to the part of your brain that deals with justification, and I’ll give you the arguments for why, in terms of justification, one can punish or cannot punish.

But why do I need arguments? Again. According to the determinist I don’t need any arguments. No, the word “arguments” isn’t relevant at all to the determinist.

But I’ll explain, Shmuel, that’s not correct. Because in the end, when the determinist comes and gives me certain arguments, and suppose I too am a determinist—or actually everyone is a determinist—those arguments will convince me. After all, it’s not true that in a deterministic world people are not convinced. The claim is only that their being convinced happens deterministically.

So it’s an illusion that they’re convinced. The word “convinced” is not relevant. It’s an illusion.

No, again. The illusion is the connotation. There is a process of persuasion. It’s just that the determinist says persuasion is only a mechanical change that happens in the head. That’s all. It’s the laws of physics. It would have been possible before, I don’t know, at the beginning of creation, at the Big Bang, to calculate with a supercomputer that on such-and-such date and time you would “be convinced,” in quotation marks.

I completely agree, Shmuel, but still there is a process of persuasion, however you relate to it. A person raises arguments and can change my position, and that is true also according to the determinist.

I’m saying that for the determinist the concept of persuasion is meaningless.

I’ll explain again: it is not meaningless, but it does not have the same meaning it has for the libertarian. For the determinist, persuasion means a mechanical operation for changing the head. That’s all. But I’m saying that these operations do exist. Now, understand that from the determinist’s point of view your question too is superfluous, because when I say what I say, I am compelled to say it.

Right. There’s no point in saying all these things.

Very true, that’s what I’m claiming.

No, so I’m saying—but what you’re claiming is sawing off the branch you yourself are sitting on. Since in the end, okay, so I am compelled to raise this argument even though it isn’t logical, and I continue to raise it, and it doesn’t matter what you say. Therefore the determinist too will not be influenced by your arguments. Even what I said just now I was compelled to do.

Okay, therefore I say that in the Big Bang it would have been possible to calculate that I would now say this. Therefore I say that the whole thing is an illusion, but we continue to conduct ourselves as usual. From the determinist’s point of view he conducts himself like me and like you. I am trying to show in what places the determinist will also conduct himself differently, not only give a different interpretation to the same things that he does like me. And I claim that the consistent determinist who talks about justifications—justifications in his sense, not justification in the full sense—should actually understand that where there is no correction, he will not impose punishment. And once he understands that, that is indeed what he will do. Therefore there is point in saying this argument to him. This argument will convince him. It will convince him, of course, deterministically—but it will convince him.

I claim there is point in saying it—it is meaningless to the determinist. There’s no point in saying it. You say it because you must say it.

What you just said to me you also had to say.

Right. And what you said too, right. Therefore I say: we continue to conduct this discourse, and from the determinist’s point of view this whole discourse is nothing but a facade and an illusion behind which there are basically electrical currents. That’s all.

Right, right, indeed. But still, since this discourse is being conducted, and within this discourse arguments come up and those arguments persuade, then we join this discourse even though the whole meaning of the discourse is really some completely different meaning in the deterministic world—if one can speak at all about meaning. I completely agree with the comment; I noted it earlier; it’s true.

Now the point is that basically, when I meet the determinist and he tells me he is a determinist, I say to him, wait a second—you exempt people… with irresistible impulses or people who are insane? He says, of course, yes. And then I ask him why? There is no justification for that in your doctrine. In principle he should accept that and really change his position. You have to understand. Accept it, of course again because it’s mechanical, but it doesn’t matter—he should accept it, and therefore this discussion can be conducted within the deterministic world.

Look, for example, at what Alexandrovich writes—he’s an Israeli psychiatrist, already rather old, but that’s what I found. Today they would of course say this even more strongly. Here: “According to our scientific deterministic approach, we have only one way to examine whether the impulse was controlled or not. If the person was dragged after the impulse, this means that the impulse was stronger than the restraining mechanisms.” That’s it. If he committed the sin, then he was compelled to commit the sin. In other words, if he committed the sin, that means the impulse in him was stronger than the restraining mechanisms. What is that if not an irresistible impulse? In other words, every person who sins is basically acting from an irresistible impulse. That is his claim. He says: “Clearly, a conclusion of this type will not help the law, but any attempt to determine that the person could have controlled himself if…” in quotation marks, “denies the deterministic view and constitutes a mere hypothesis without scientific basis.” He just forgets that his hypothesis too is without scientific basis. In other words, his assumption that everything is impulses and only impulses and restraints is equally lacking scientific basis. And for some reason psychiatrists and brain researchers always ignore that point, and accuse only the others of lacking scientific basis. “Jurists expect help from us on the basis of our science and not contrary to it.” But that’s also not true: on the basis of your science too you cannot say what you are saying. What you are saying is a personal position. Science cannot say either this or that. And there is such a point, as we have seen up to now, that science cannot decide for or against determinism.

And in this matter you see, first, what really does emerge from a deterministic worldview, and second, the determinists’ lack of awareness—which is very characteristic—of the fact that their own position too is not scientifically grounded. From their perspective they are sure that this is science; whoever says otherwise is saying something scientifically unfounded. But that is of course nonsense.

I don’t understand something. Yes. Maybe one can say that assumption regarding a machine, when you apply some electrical factor to it then it performs a very specific action. But a person has eyes, he has—he looks in a certain direction, he sees X. Someone draws his attention to the fact that he can look in the other direction, and suddenly he really discovers something he didn’t see before. Okay. So persuasion does exist. You can’t say one can’t persuade, because a person is a machine.

No, the person was persuaded by the fact that his attention was drawn to it—that earlier you looked in one direction and didn’t see something, and here’s another point to which I’m drawing your attention.

That’s not true. Why? Because according to that you can persuade a computer too. What’s the problem? Draw the computer’s attention to additional data and the software will also change.

Could be. It could be. But up to now we assumed this is electricity—you touch one point, one result only.

Of course, because the computer is also electricity. The computer is only electricity; there is nothing else in it.

Fine, but in a computer you can do what you’re describing. But the person—not so, because the assumption is that he will not always respond to the same presentation. If suddenly they show him that he missed something, didn’t see this side—

And I’ll repeat what I answered: according to the determinist, a person is entirely a computer. There is nothing in him besides a computer. Just as a computer that receives new data will produce different results, so too a person who receives new data will behave differently. Exactly like a computer. There is nothing beyond that.

Wait, so you can persuade a computer too; that doesn’t contradict anything.

No, it means that what you are describing is not persuasion but influence. There is a difference between persuasion and influence. That is the argument I had earlier with Shmuel. Right, there are processes that we call persuasion, but in fact they are nothing but feeding additional data into the computer. It’s not that you are exercising judgment and arriving at another conclusion. So it’s influence—deterministic influence, like correction of the brain. That’s exactly what I’m describing here. There is nothing here beyond a computer, metal and electrons. That’s all. Not metal—in this case organic matter. But there’s another question here. I don’t understand—with all these arguments, in the end the judge will say: I’m doubtful, there are two sides here, I can’t send a person to prison on the basis of doubt. You have a claim, the other side has a claim, and therefore at the end of the story I can’t do anything.

That’s really true. Therefore I really think it is very, very important to conduct some kind of public intellectual discourse so that society can formulate a position on what underlies its legal system. Now, society will formulate that position, and you’re right, it may make a mistake. But we are always exposed to error. At least let us be aware that there is a question here that we need to address and formulate a position on, and not let brain researchers determine it, because this is a legal doctrine and not a scientific finding. And therefore my claim is that when you let things crystallize inside brain research institutes and receive only the final result from them, we have a problem, because our legal doctrine becomes the result of a philosophical conception of scientists—not of science, but of a philosophical conception of scientists. But in the philosophical context scientists have no added value; on the contrary, they make quite a few mistakes in the philosophical context. Therefore I think this should be handled in some kind of public discussion. And yes, society can accept mistaken assumptions or formulate mistaken positions, but we have to decide what we are willing to assume for the sake of our legal system and what we are not. It’s not a simple decision, but we have to do it. There’s no choice. And therefore I say that we must not leave this to dark rooms inside brain research institutes.

Look, the second point is that there are scientists at Bar-Ilan who are religious and they are not determinists—not all brain researchers.

I don’t know the people at Bar-Ilan well enough. Some of the people at Bar-Ilan whom I know are completely determinists. I don’t know anyone who is a researcher—I do actually know one. I know—Ari, do you know Ari Zivotofsky?

No. I’ve seen the name but don’t know him.

Okay, he’s a researcher at Bar-Ilan. There’s also someone from Shoham, one professor whose name I forgot, with whom I once spoke, and he is not a determinist, a brain researcher. But okay, that doesn’t mean much. There are also religious people who are like that. Sompolinsky—I brought him up in the book, I already mentioned him—he’s a physicist and brain researcher, very, very well known in the world, and he’s a determinist, a fully religious person, a determinist. So about that—the relation between determinism and religion—I’ll still get there. I can already see I’m not getting to it today, but we’ll get there.

What I basically want to claim is the following—I just want to finish this point; it took me more time than I thought. I want to claim the following. Basically, when brain researchers present the findings to jurists in order to help them find their way through the material and make informed decisions—which is a welcome step—what happens is that always, always, the warnings, even from the cautious ones among them, not like Alexandrovich whom I brought earlier—the cautious ones draw attention to the fact that our information is still incomplete, and one needs to be aware of the limitations of the information being presented. They do not warn that what is involved here is a deterministic assumption that has no scientific basis. It is a methodological assumption—we talked about the fact that there are assumptions that are very useful methodologically—but that does not mean they are true assumptions about reality itself. Methodologically it is very correct and very useful to assume determinism in brain research; that is obvious. If you assume the business is not deterministic, brain research has a very hard time progressing. Since brain research always looks for causes and effects, looks for mechanisms. And if you assume it’s not a mechanism, then what exactly are you going to investigate? So for the sake of discussion you assume it’s mechanistic and then you investigate the mechanisms. But from time to time you discover deviations from the mechanisms, and then you need to know that this is a methodological working assumption—but in reality itself it is by no means certain that reality is deterministic. There is a very important difference between methodological assumptions and claims about the world; those are two different things. As a methodological assumption, I am entirely with the brain researchers that this is what one should assume in order to do brain research. One should assume the brain is deterministic. I completely agree—as a methodological assumption for research. But when they turn that into a claim about reality, that this is actually the case, with that I absolutely do not agree.

Look, I’ll bring you an article—perhaps the central article I found—in which brain researchers present the findings of brain research to jurists. We are talking about five very well-known neuroscientists; I also brought in Gazzaniga, Michael Gazzaniga, who won all kinds of prizes, also a very well-known researcher. And he says—look, I’ll begin—I’ll share these passages here.

I’m going back to Avery whom I mentioned earlier before I enter the article by this group of five. He says: “The trouble with the jurisprudence in this area is that neuroscience still suffers from a group-to-individual problem.” In other words, you know information that is statistically true about a group, and when you apply it to an individual within the group, you go wrong. Now this itself can be understood in two ways, and when you look at Avery’s article it seems to me that he understood it in the wrong way. And one interpretation of this sentence is that there are statistical problems: you know something statistically, but you don’t know something about a specific individual. Correct—you know that on average with a die there is a one-in-six chance it will fall on one, or two, or three up to six. Okay, but you can’t tell me that if you throw the die six times it will land once on each face. That won’t happen. On average that’s what will happen, but in six specific throws that’s not what will happen. If he is warning against that, then that’s just statistics.

I’m claiming something stronger. I’m saying that even if you take the statistics seriously, even regarding a group it is not certain you have statistical information—not only regarding the individual. Because always, always, beyond that, statistics speaks about the topographical outline. After that there is still the veto. The person has to decide whether he goes with the biases his soul is pulling him toward or whether he does not go with them, and about that you cannot make statistics. That is a choice. Therefore there is a much deeper problem here than problems in drawing statistical conclusions. It may be that statistics is not relevant here, because what I decide about I decide in my free choice. Statistics only tells me what forces are acting on me in each direction. Then they tell me: look, the force acting toward the right is 50% stronger than the force acting toward the left. So therefore there is a 50% greater chance that you’ll go right than left. And I say: the force acting right is 50% stronger, correct. It is not correct that as a result there is a 50% greater chance that I will go right than left, because that depends on my choice. If the right, for example, is a negative action, then I will overcome it, and even though there is 50% more force acting on me to the right, I will overcome it and go left. And it could be that 100% of the people will go left if you took a group of righteous people, even though the force acting on them is toward the right. Therefore the problem here is not only a problem in drawing statistical conclusions. There is also a problem in ignoring the fact that statistics is not everything. On top of the statistics there is still our choice. And you simply will not find that among brain researchers. I’m telling you, I went through a lot of articles and literature and so on, quite a lot—not sure about a lot, but I went through quite a bit of material—and there is nowhere… Here, I’ll give you an example from the article by this group of five.

Look, they summarize things as a collection of postulates. They say this: “All behavior results from the interaction of genes, environment (including social contexts),” yes, both the internal and external environment, “developmental history, and the evolutionary processes that built the brain to function in the ways it does.” In other words, that’s the first postulate. That is how they begin the summary of their article directed at jurists. First point: all behavior is a function of genes and brain and your biography. Now ostensibly, when you bring in your biography and so on, suddenly they tell you, ah, it’s not completely deterministic, there’s biography here too. That’s a big mistake. We talked about this. This is a completely deterministic worldview. It just says that our biography and external environment also shape how my brain is built—but in the end what I do is genes and brain. That’s all.

And therefore their statements look very moderate and very cautious and very qualified about the significance of brain research—but these are qualifications only because our information is incomplete. What is presented there is a completely deterministic worldview. Here: “All behavior is thus biological.” Yes, in the end all our behavior is biological. Notice: this is a summary for jurists of findings from neuroscience, understand. This is not research, not an expression of a personal position. It is a disciplinary summary. I want to bring to judges what scientific findings of brain research have shown. That’s it. Those are the first two postulates.

Now look at statements that seemingly sound more—wait, ah, here: “Understanding behavior as biological in nature does not mean that behavior is biologically determined, in the reductionist or reliably predictive way.” He says: the fact that all behavior is biological doesn’t mean it can be predicted in advance. Now that sounds like a proper warning from neuroscientists. Again, that’s a mistake. It’s not that it cannot be predicted in advance—it is not fixed in advance. We talked about the fact that in both chaos and quantum theory one cannot predict the results in advance. That is still within physics. The libertarian claim says: true, it cannot be predicted in advance—not because the calculation is difficult, as in chaos. It cannot be predicted in advance because it is not dictated. The future is not dictated by the present results; therefore it cannot be predicted in advance. When they talk about the fact that it cannot be predicted—and this keeps coming up all the time among physicists and among brain researchers—this confusion, I already spoke about it. I talked about that person from the Veracruz group, the ones who found chaos, yes? So he said the same thing. The claim that chaos can somehow explain free choice—that’s nonsense. Chaos is merely a computational difficulty. I don’t know how to predict the future result because it is very hard to calculate. But in principle, the future result is fixed based on the present state; it’s just hard for me to calculate it, that’s all. And that’s what he said: I can’t predict the future in a reductionist or reliable way, yes? I don’t have a good prediction of the future. But why? Because of computational difficulty. That means it is still a deterministic worldview.

Moving on: “Like the rest of behavior, both criminal and law-abiding behavior originates in the brain.” Yes, both criminal behavior and normative behavior, everything basically originates in the brain. Okay, again. “There is no brain structure or set of brain structures that is specifically for criminal or law-abiding behavior.” Now look at the parentheses. Ostensibly, again, a noteworthy qualification: from brain structure alone, you can’t infer criminal or non-criminal behavior. Pure libertarianism, right? Look at the parentheses. It’s very easy to miss. “Since those categorizations of behavior are socially determined.” The only reason you can’t determine from brain structure whether it is criminal or normative is that the definitions of criminal and normative are social definitions. In a society in which it would be normative to steal, then it’s true that your brain structure causes you to steal, but you can’t say you are non-normative because society determines what is normative and what is not. You understand that here too there is no statement that is non-deterministic. This is a completely deterministic statement. The brain determines that you will steal. Period. You have no choice. True, society determines whether stealing is normative or not. But there is no qualification here on determinism. This is a completely deterministic worldview.

Okay, in short, I’m not going to read the rest because we’ve run over, but the principle is clear. And I’m talking to you about an article that takes five major neuroscience experts who summarize the findings for the benefit of jurists so that jurists will know the facts and can now start working. And determinism appears here without even giving an account of itself. They don’t even justify it—it’s obvious. In other words, unlike what we saw with Alexandrovich above. There is no basis whatever for the statement that our brain, that our behavior, is deterministic. There is no scientific basis for that. It is a legitimate philosophical conception. I don’t agree with it, but someone is allowed to hold it. But present it to me as a philosophical conception. You present it as a scientific finding. And what are judges who are not experts supposed to think? The experts say so, so those are the findings—what can you do?

Okay, I’ll stop here. I took a lot of time, but I hope it helped summarize—not only to see the legal matters. Why… yes.

So basically, must every neuroscientist be a determinist?

No. He must, I think, assume a methodological assumption of determinism. He doesn’t have to be a determinist in his view of reality. Those are two different things.

I didn’t understand.

As a methodological assumption, brain research needs to assume determinism. Without that, it’s hard to investigate. But the question whether you are a determinist is a question of how you view reality itself, not what you do in the laboratory. And regarding reality itself, you do not have to be a determinist. You can understand that the deterministic assumption is important for methodology. As I gave an example of this in one of the classes—here I said this whole move basically summarizes almost everything we’ve done—I gave an example in one of the classes regarding vitalism, yes? The conception that biologists today treat with such contempt. It’s a conception that says there is something more in a living body besides biology and chemistry—or that there is something in biology beyond chemistry and physics. Vital material, yes, something in it beyond the material itself. So today people disparage it because biology has already shown that it’s not true. Biology did not show that it’s not true; that’s nonsense. Biology assumes a non-vitalist methodological assumption, which is perfectly fine. Because if you assume vitalism, it becomes very hard to be a biological researcher. A biological researcher has to assume the processes are biological. If other processes are involved, you can’t investigate. So you assume that the processes are entirely biological. That is a methodological assumption necessary for biological research. But again, to move from here to a claim about the world—that in the world itself there is nothing besides biology—that is absurd. Or at least not absurd, but it is an unnecessary leap. The same thing here. Many times people engaged in research in a certain field assume a methodological assumption that is indeed necessary in that field. But when they turn the methodological assumption into a claim about the world, there is an unjustified logical leap there.

If you assume determinism methodologically, then how can you say you think the world is not deterministic?

I can discover in my research that it doesn’t always work, and still continue to assume it. I’ll give you an example. When a soldier goes out on patrol, he has to assume there is an enemy behind every bush, right? Now ask him, tell me, what percentage do you actually bet that there really is an enemy behind every bush? Obviously not. But as a methodological assumption for the sake of his activity, he has to assume that assumption. There is a difference between assumptions that help me in what I’m doing and assumptions that say what is true. Those are two different things. Okay?

Now if the world is not deterministic, if it is libertarian, then is there no place for neuroscience?

I didn’t say there’s no place, but rather that there is a qualified place. Neuroscience can give me the framework part, the topographical outline. But on top of the topographical outline I still go and decide whether to go into the valley or climb the mountain. Neuroscience will only map out for me the topographical outline in full. That is what I explained when I spoke about the topographical outline model—that the role of psychology, psychiatry, and neuroscience is to expose, as much as possible, the topographical outline within which I operate. But once you have the topographical outline, that does not mean it dictates what I will do. Because I am not a little ball and I am not a stream of water—I am a human being. And a human being can decide to climb the mountain even though it will cost him potential energy. It’ll cost me, and I still decide to climb. About that neuroscience cannot say anything, and neither can psychiatry.

More power to you. Sabbath peace.

Sabbath peace, goodbye.