At the conclusion of the opening part of this series, I posed a question. If you got the right answer I hope the elation derived from that fact alone will be sufficient, as no prizes were being offered.
If we are agreed, as I suggested in Part 1, that there are certain aspects of our lives, existence and bodies over which we can demonstrably be shown to have no control whatsoever, let me now go a little deeper and suggest –before we even get to the science of the matter- that you really have no control over another integral part of your make-up; something that may make you a little more uncomfortable and, probably, defensive. I am going to suggest that not only do you not have any control over things such as your DNA and genetic make-up, and your date, location and place of birth, for example, but more importantly –and possibly from your point of view, more worryingly- you do not have any control over your thoughts either. That’s right. Let me say it again. You have no control over your thoughts.
I would like to claim the credit for this seemingly radical proposition, but I cannot. In his recent book “Free Will” (2012, Free Press), Sam Harris explores some of these themes in far more depth and far more eloquently than I can hope to do. What I hope to do, however, is blow some of the intellectual froth from the surface and at least stimulate you in a direct way to consider something intimate to yourself: your own thoughts and thought process. What has this to do with the criminal justice system? Plenty, I will argue.
But first, another challenge. Think of a number……..any number. It can be any whole number you choose from 1 to, well, the highest number your mind can possibly envisage. That should give you essentially an infinite choice and, in that regard, I suggest I am giving you the freest choice you will ever get in your entire life. Look at it this way; in the coffee shop, my supposed choice was limited, not so much by the size of the display board as the stock the coffee shop had. If, for example, I had asked for ‘Deadly Nightshade and Guacamole’ flavoured tea, I suspect I would have presented the barista with a challenge she could not have risen to, at least for several days. Even my choice of exotic beverage, whatever it may be, would eventually be exhausted by the fact that all resources on the planet are limited. There are only so many possible choices of ‘tea’ I can have, thanks to nature’s limitations. So the choice I am offering to you, literally any number from an unlimited number of possibilities, must be as good as you will ever get in terms of a free choice.
So, have you chosen yet? Take your time; there really is no hurry. If you want to go and get a cup of coffee, or even have a holiday abroad specifically to consider this very matter, please go ahead. I will still be here waiting. I want to do nothing to limit your freedom to choose. However long you have taken –again a totally free choice for you- let me assume that you now have chosen a number. I say immediately that I am not a mind-reader, so I don’t know what number you have selected – and once again, no prizes are involved. It could have been any number.
Now try again, but this time focus on your thought process. Think about how, and what, is happening in your mind in the process of choosing any random number.
Now, I don’t know what number you are thinking of, and it really does not matter. For argument’s sake, let’s say you have selected 65. Now let me ask you: why did you alight on that particular number? Focus on your thought process. Perhaps you are sixty-five years old, or have sixty-five pounds in your bank account. Was the number you chose significant for any reason you can understand or make sense of?
But even if you had ‘65’, or whatever number you actually chose, lurking somewhere in your conscious mind, why choose it? I mean, you had infinity to choose from. While you were considering your selection the second time, did the number 346 ever feature in your conscious mind, for example? Or 34,987? Or 3? I could go on and on suggesting numbers which you could have selected, but didn’t; numbers which you obviously knew existed and could possibly have alighted on, but which never presented themselves consciously to you. The fact is that any number, from 1 to infinity and beyond were available for you; and almost all of them, I can guarantee, were ‘eliminated’ from your decision-making process with no thought of your own whatsoever, because your mind never brought them into your consciousness. If that is the case, and I suggest it is, how could you ever have been ‘free’ to select any of them? They just never materialised; for whatever reason, your brain, your mind just refused to offer it to you for consideration. And was the reason it failed to do so any fault of yours? And could you have done anything about it anyway?
Let me go further. What is the next thing you are going to think? You may answer ‘Well, I am reading this, and this is what I am thinking about’, which is a fair comment. However, have you ever noticed how things just ‘pop’ into your mind without you ever, literally, ‘thinking’ about them. Maybe for some reason you have just remembered as you were reading that you left the iron on in the kitchen, or that you forgot to post a letter to your sister, or you ask yourself ‘Why is he using that font?’, or any one of an infinite number of random ‘unthought’ thoughts. Where did those thoughts come from? And have you ever been talking to someone, listening to whatever they are saying, and then thought to yourself something along the lines ‘You look just like Bill Clinton’. Where did that thought come from? You weren’t inviting it, you weren’t expecting it; it just ‘happened’, out of the blue, from nowhere. It simply ‘pops’ into our consciousness, and we are powerless to prevent it. Now focus on exactly how many times a day this happens. And focus on the process by which it happens. Your thoughts, in terms of what you think (by being brought into your consciousness) are out of your control. They either happen by some process of ‘cause and effect’ or they are utterly random; but either way, you have no control over them. This was my reason for posing the question I did at the conclusion of the last part: I suggest that you had just as much chance of guessing what I was going to write next as you had of knowing what your next thought would be, and had as much control over it.
Before going further, let me make a concession at this point. You may say ‘You have a point about that, but once the ‘thought’ is brought into your consciousness, then you have a free choice about what to do with it.’ I will return to this in another Part. At this point, however, if you concede that what ‘pops’ into your consciousness, a ‘thought’ is something you are powerless to control because it is essentially given to you by your brain/mind, it is then ‘there’. It is a thought, and something you cannot either prevent or control. Try telling yourself not to think about something; in telling yourself, you are proving you are thinking about it, and if it remains in your mind (and for however long) it will not be down to anything you can consciously do. And if you forget it for a while, you will never stop it coming back in, when your brain/mind slides it back in to your consciousness.
Thoughts are personal. Thoughts are private. They are the essence of what makes us who we are. They, like numbers, appear to be infinite. We are told thoughts can be ‘positive’ or ‘negative’. They can be dominated by emotions, which can be affected by all manner of things from mechanical (misfiring synapses in the brain, for example) to personal experiences. They are the ‘holding pen’ of our essence; sometimes we express them to others and sometimes we do not.
I once knew someone who didn’t like ‘black people’. It didn’t matter where they came from or what their personality might be. I once asked him why he thought like that. He didn’t even give me time to finish the sentence before providing me with a seemingly endless list of reasons, none of which I really need to rehearse. However, in summary, he just thought ‘black people should go home’. That was his ‘thought’. As he spoke, whatever part of my being that responds to things I strongly disagree with was being activated, and the thoughts that began to appear within my ‘conscious mind’, from wherever they came, created the strongest sense of negativity within me towards him. Again, from somewhere, my conscious thoughts were primarily directed towards labels: racist, bigot, intolerant, and so on. I didn’t ask those particular labels to flood my conscious thoughts; they just ‘popped in’. I didn’t think of a list and choose them. It was only, much later, that I began to ask myself –again for no reason I can explain, and can therefore take no moral credit or responsibility for- whether if I myself could not control the responses that my mind was bringing into my consciousness at that moment, could he for the things that were ‘popping’ into his? My immediate feelings were being presented to me from, I would suggest, internal and organic workings of my brain, for which I am not responsible, and programming and conditioning throughout my entire life to that point – again something for which I was not responsible. I wasn’t actually ‘choosing’ to experience the feeling of despising his ‘thoughts’ for any better or more morally superior reasons than he was ‘choosing’ to have them brought into his consciousness. In fact, I realised that if I had been born when he was, with his DNA, his mother and father, his life experiences, and every atom and molecule of my body was switched for his, it would be me who was saying these things; and would I be in any way culpable for that?
I also realised that if, by dint of circumstance, I had been born with a different set of genes, whereby my skin was no longer a (hopefully) healthy shade of pink, but brown or black, and I had been sat opposite the man I have just described, what he said to me would almost inevitably have amounted to a ‘hate crime’ under the laws of this country; something for which he could be arrested, detained against his will, prosecuted and punished for. Of course, you may say that even if he couldn’t help his thoughts, for all the reasons I have suggested, he could have held his lips together and said nothing. I would contend, for reasons I will later outline in greater detail, that whether he would have done is something he was not free to choose; but even if he was, there is the issue of whether it is in any way justifiable to criminalise his ‘freedom’ to simply express thoughts which he cannot control, however unpleasant we may consider them to be.
In the next part I am going to suggest going out of our minds for a while and taking a closer look at how some of this connects with the criminal justice system.
Part 3: “The philosophy of the criminal justice system: ‘I think, therefore I am……..guilty?”