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My lab:

The next speaker at this meeting here was Reinhard Merkel, professor of law at the university in Hamburg. He started with the distinction between different kinds of freedom. He cited Kant, but only as a reference to what he was not going to talk about. Instead, Merkel emphasized freedom as the absence of inevitability and referred to this concept as PAP: "principle of alternative possibilities", i.e., 'I could have done otherwise'.
Not unexpectedly, he then cited Neurobiology (Wolf Singer) as posing a problem for freedom of choice as in PAP. Especially the conscious access to the determinants of decisions, or rather the lack thereof is a problem for the kind of PAP Merkel refers to. He kept going on about determinism being the main issue, so nothing new there. At this point, it still wasn't very clear as to where he was trying to go with this.
Merkel then rattled off the three textbook positions in free will: Incompatibilism (libertarians) and the two compatibilistic positions: freedom despite of determinism and culpability despite the lack of freedom. He stated clearly that he belonged to the compatibilist camp and that he would present arguments in its favor.
He then still stayed on the textbook level with the example of a referee blowing his whistle. Why did this happen? Because air when blown into a whistle makes a sound. Or because the referee saw a foul. Merkel used this example to show how reasons are different from causes. So far so old. He states that reasons can never be causes. Already in the next section of his presentation Merkel poses exactly the relevant question: how do reasons get translated into neurobiology and then behavior? Consequently, he stated that the difference between reasons and causes is irrelevant. So far so cool. This insight, quite logically, poses the problems of mental causation and that of agency. He basically phrased the mind-body problem as the basis for culpability.
Merkel then dismissed libertarianism as unlikely and went on to describe the main problems of compatibilists. He also dismissed the idea that the brain is the organ that constitutes the mind with its functions with the totally weird statement that brain function is somehow simultaneous with consciousness (???). The very eloquent and well-prepared talk went on with few surprises: he casually mentioned qualia as a problem for the idea that the brain could be equated with the mind.
He clearly stated that he could not quite resolve his agnosticism in spiritual terms and his physicalism in scientific terms with his deeply felt intuition that there has to be more to the mind than the brain. He introduced the term of supervenience as an attempt to resolve his cognitive dissonance.
Then came the most interesting part of the presentation. Unfortunately, he was running out of time, so this became the shortest part at the very end: what does all this mean for the law? He started with the question of culpability according to German law and the biological/psychological evaluations required to determine it. The important points for the German version of the law were that the defendant had to be able to tell between good and evil and to be able to act accordingly. The problem quickly became clear: was the defendant generally culpable or was he culpable at the instance in question. Science can help in the first case, but the second question is near impossible to answer for science.
The speaker then suggested a new definition of culpability. According to his definition, if I understood it correctly, someone is culpable if the person is receptive for the normative order to behave according to the law and reactive to this order, i.e., capable of following the law. It was not immediately clear to me how this was not just a reformulation of what is already in the law. His further remarks seem to indicate that the decisive issue for him here is the general disposition of the defendant and not the singular situation during the crime. Thus in his opinion, 'free will' is not necessary for culpability in the law: the only thing that is required is the defendant to be cognizant of the law and in general capable to act according to the law.
In conclusion, this was a very interesting and very eloquently presented talk, albeit with very little actually novel (to me) content. It helped to better understand things I had already read about - the usual effect of someone actually explaining something in person, rather than with just written words. I thoroughly enjoyed this presentation and it definitely helped to consolidate what little I had previously learned about the topic of culpability and the law. I'm looking forward to the podium which will start right after the Q&A of this presentation.
Posted on Saturday 19 November 2011 - 16:40:01 comment: 0

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