Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of human will. Jean-Dominique Bauby authored the original memoir after suffering a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, Bauby blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that the transcriber had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides in gripping detail the separability of one’s intention to act and their ability to effectuate their intended actions. That Bauby could convey his thoughts through such extraordinary means is at once remarkable and tragic that anyone should suffer such a fate. Through the use of his one working eye, Bauby overcame, at least in a limited way, constraints on his freedom to act—choosing to act, effectuating action, and identifying with the action achieved.
Today, Bauby might have instead have used a revolutionary new technology from neuroscience to communicate his memoir. A technology known as brain-machine interface enables a computer to “read” brain activity and to decode it through pattern-recognition algorithms. Cyberkinetics Neurotechnology Systems, Inc. has developed a brain-machine interface technology that connects the motor cortex of the brain to a computer, where the subject is able to move a cursor on the computer screen, check email, change the volume, and select or move anything on the screen that would be possible with cursor movements by simply thinking about hand movements. So by connecting Bauby to this brain-machine interface, he might have typed out his memoir himself by thinking about the letters of the words he wished to communicate.
Brain-machine interface has already extended beyond the two-dimensional world to the control of three-dimensional objects. Researchers at Duke University pioneered a study in which they connected electrodes to the motor cortex of a monkey’s brain to interpret the electrical impulses arising from the firing of the neurons that signaled movement to the monkey’s limbs. The researchers studied those electrical impulses to learn the neural process involved in moving the monkey’s limbs. They then used this knowledge to build a brain-machine interface device to allow the monkey to manipulate a robotic arm through its thoughts. After training, the monkeys could manipulate a robotic arm that was connected directly to its brain such that the monkey ceased moving its own arm and instead moved the robotic arm to achieve its intended movement through intentional thought.
The next step—human control of robotic arms by thought alone—has become reality. Tim Hemmes, a paraplegic by car accident, moved a robotic arm through brain-machine interface technology that decoded his intention to move the arm and translated it into three-dimensional action. With the help of a new type of chip that was implanted on his brain, Hemmes focused his deliberate intention on moving the three-dimensional arm and succeeded in doing so. To accomplish this feat, Hemmes had to undergo brain surgery whereby electrodes were implanted in his brain to record the electrical signals in his motor cortex brain region. Those electrical signals were connected to the robotic arm and after training for several weeks Hemmes could mentally achieve its movement.
Despite these extraordinary advances that enable individuals to move three-dimensional objects through consciously willing those actions and the ability to now isolate the deliberate intentions in the brain, scholars continue to debate the existence of free will. Whether Bauby had used brain-machine interface to transcribe his memoir or communicated via eye-blinks, a stronghold of scholars would challenge whether he acted freely. Not because Bauby suffered from the tragic and rare neurological condition called locked-in syndrome, characterized by the paralysis of all voluntary muscles except for those that control eye movement while leaving one conscious and able to think and reason. Rather, because such scholars question whether human actors have free will, or merely an illusion of freedom. Scholars who deem free will merely illusory claim that all events are determined by past events, including every event in the mind one would call choice.
This essay illustrates why neuroscience supports a robust theory of human freedom. Rather than condemning humanity to a reductionist view of human actions, neuroscience provides a lens through which a long-standing debate about freedom of choice versus freedom of action can be renewed and resolved. Research investigations into the neural processes involved in preferences, desires, and human actions offer new insights into the flexibility and control that human actors exercise over voluntary actions.
Distinguishing between choice with respect to preferences and desires, and freedom to act in particular ways is consistent with a legal system that punishes for wrongful actions but not wrongful desires that are not acted upon. Yet legal scholars argue that the criminal justice system relies on a much thinner and consequential justification for individual responsibility than freedom of action. The prevailing concept of free will advanced by legal scholars is one that I call “legal free will.” Scholars of legal free will argue that the law does not need a metaphysical account of freedom, nor does it rely upon one for its legitimacy. This essay argues that rather instead of eschewing theoretical free for criminal responsibility, legal scholars could embrace advances in neuroscience to support a theory of freedom that focuses on voluntary actions.
Part I begins with a discussion of legal free will, a concept that appears most controversially in criminal law but also pervades most areas of law. Underpinning the attribution of responsibility in criminal law is a presumption that humans are free to act and to refrain from acting (“legal free will”). But legal free will is in fact a misnomer since the freedom it describes is a vacuous one. Scholars claim that the law holds individuals responsible for their actions not because they are free, but because it is expedient to treat them as if they are free. This leaves the legal system open to persistent attacks on its legitimacy for failing to comport with ordinary intuitions about moral responsibility. In criminal law in particular, legal free will creates a problem because its proponents disclaim any need to grapple with questions about moral responsibility. Because the power of the state and the threat to liberty is at its highest in the control of conduct deemed criminal, the refusal to grapple with questions of theoretical free will leaves the criminal justice system open to a never-ending slew of attacks. Part II illustrates the newest incarnation of these attacks, which have been rooted in neuroscience. Scholars are coalescing around the belief that neuroscience supports determinism and substantiates the claim that at the very least some individuals—if not all individuals—lack moral responsibility. Proponents of this view argue that the legal sanctions of the criminal justice system, such as blame, stigma, and shame, should therefore not follow. Part III then uses emerging studies in neuroscience to support a distinction between freedom of action and freedom with respect to our preferences and desires. This distinction matters, as Part IV argues that freedom of action offers a robust theory of freedom for attributions of responsibility.