The End of Atonement: Law Without Free Will

Dale DeBakcsy

There are three things that we humans seem to really want to believe in: the existence of God, the soul, and free will. The first two constructs are being steadily eroded, and it is conceivable that we shall soon see the day when soul-mongering theists are a minority. But the notion that we are meaningfully masters of our own actions is far more tenacious, and at least for now it is the rare atheist who is willing to proclaim without reservation that free will is dead. There is an entirely practical reason for this. Whereas belief in God or the soul doesn’t materially impact the structure of governance (the Electoral College is an awful idea whether or not God exists), the entire basis for human justice and law is at stake once the notion of free will starts to totter. For those of us who do not believe in free will, it is therefore of paramount importance to put forth an image of justice that is compatible with lack of agency in order to smooth the way toward the removal of this last pillar of humankind’s willful self-deception.

Before building a post–free will notion of justice, it is reasonable to ask if we’re really so sure that free will is doomed to fall. Let’s start with the facts that everybody can agree on. Our genetic code is not a matter of our choice. Though there is a considerable amount of variety in which sections of the code activate and for how long during our initial development, none of that is a matter of our conscious volition. This set of genetic and epigenetic factors forms the basis of the instincts and survival reactions with which we come into the world, and there’s nothing we can do about any of it.

Once born, we have a set of experiences foisted upon us in the form of native language, local community and cultural practices, and parental strategies. I was raised an English speaker in a Reagan-era small town by parents concerned with education above all else, and in none of this did I have a vote. That isn’t to say that I absorbed the set of ideas around me precisely as they were given. Rather, my un-chosen external experiences interacted with my un-chosen neuro­chemical and genetic makeup to form a set of synaptic associations that are the basis of my personality.

That far just about anybody is willing to go. It’s in the use of that basic personality that controversy arises. We have a choice of which actions we take and which we don’t, says the free-will camp. But do we really? Let’s take an example. Suppose that you are walking down a street at night when you look to your left and see a stranger leaning against a wall. Whether or not you feel fear in that moment is not up to you; it is a decision made without your consent when incoming sense data is processed by your sensory thalamus and cortex and shipped to your amygdala. If the incoming signals stimulate enough AMPA receptors in the neurons of the amygdala, the fear response fires and you feel the physical and mental symptoms of being afraid. If not, it doesn’t.

“Well, maybe,” you might say. “But whatever chemical state my body puts me in, I have a range of options for how to act and can choose one of those freely.” Let’s think about that—are you free in considering which options are consciously available to you? For instance, presented with a stranger, I might be aware of “Walk Tall and Look Tough,” “Run,” and “Jump Him Before He Jumps You” as actionable possibilities, but “Challenge Him to a Wizard Duel” doesn’t come up (though perhaps it will from now on). I am not free to choose from the infinitude of possible reactions that my brain is capable of imagining—only a few crystallize in my conscious mind. My option palette is chosen for me, as if my brain were being run by Henry Ford as he produced the early Model Ts. I can choose anything I want, as long as it’s one of the choices that has been presented to me.

Up to this point, the environment has forced a situation upon me, and my brain, a product of genetics, chemistry, and past experience, has given me an emotional response (fear or the lack thereof) and a set of action options, none of which I had a real conscious hand in. I might think: “I still have a real choice between the few action options I’ve been handed, though. I can freely choose to run, walk taller, or jump him.”

Here I must admit there is still a good deal to be figured out, and philosophers such as Catherine Malabou have used the gaps in our knowledge to revive a postmodern notion of identity and agency based on the concept of neural plasticity. But every year those gaps get smaller. Studies by Wolfram Schultz have shown how expected reward value is coded by dopamine neurons that then have a hand in our behavioral learning, while Read Montague’s work continues to demonstrate how unconscious neural efficiency pushes and determines even the most seemingly trivial of decisions. A constantly whirring chemical abacus lies within us, weighing and predicting and measuring, and in that deep calculus lies the mechanism of choice.

There is still work to be done, but—as with evolution a century ago—the data is piling up steadily on one side, reducing the possible domain of free will’s activity. In previous centuries, we spoke of a self acting within a set of external and internal confines. Now, we are coming to realize that the self is those confines. I am a grand chemical reaction tossed about on the back of the statistics of molecular combination to the day of my neuronal destruction, and that’s fine.

You might ask, “But if we accept that we cannot act other than we do, how can any system of justice be possible? How can we throw a man in jail for something he had no control over, for being the unfortunate ‘bag of chemical reactions’ that was compelled to do something that we as a society don’t like?” It’s a big question, and one so unsettling that it has driven at least one famous atheist into the arms of theism, buying back justice at the cost of accepting God. I would argue, though, that the disavowal of agency will remove from the discussion some of the most problematic and contradictory concepts in our legal system while still allowing everyday justice to effectively proceed as before.

Consider this scenario: you have committed a crime. You fell on hard times, tried to rob a convenience store, and got caught. Bad luck. You did not choose to be born in an area where crime is perhaps more prevalent than elsewhere, did not choose the schools you attended and the influences there, and did not choose the neurochemical makeup that found the theft option compelling enough to be turned into action. And yet, here you are, on trial.

Our current conception of justice says, “You could have chosen otherwise, and you didn’t. So, we shall isolate you from society so that you might be rehabilitated and serve as an example to others.” A post–free will conception of justice, while differing on the wording in many parts, would be entirely the same in effect. Our post-agency judge would say, “As you are now constituted, the extremity you found yourself in caused you to act in a way that is undesirable for the cohesion of society. You lacked an experiential basis strong enough to compel a desirable reaction, and so for the next year you will be placed in a new environment that will add new experiences to your neuronal arsenal of sufficient weight to push you toward better choices in future scenarios.”

What this judge recognizes is that the criminal’s internal abacus wasn’t weighted in a way advantageous to society—that either from a chemical or experiential perspective, there simply wasn’t enough there to push a constructive solution forward
into action. Choice, retribution, atonement, revenge, accountability—these terms, within this context, are without meaning and shouldn’t inform our approach toward you, the criminal. That you acted in a certain way in a certain situation tells us everything we need to know and tells us also what we need to do to prevent a recurrence.

Let me emphasize that this is not the “Please forgive him, judge, he’s just a poor child of circumstance” line of legal thinking that says that certain actions are forgivable when one takes into consideration the background of the perpetrator. That conception is both too narrow and too broad. It is too narrow because it assumes that only certain classes of actions from certain strata of society are forced, when in fact all action is forced. It presumes that everybody else has free choice in what they do, and we have seen that they manifestly don’t. It is too broad because it brings immense and ungainly concepts such as forgiveness to bear on a problem that is much simpler than that. Strictly speaking, no action is forgivable. I can’t forgive you for mugging me any more than I can forgive a rain shower for getting me wet or flowers for engaging in photosynthesis.

When we talk about forgiveness or redemption, what we are really talking about is a willingness to attempt to reprogram ourselves favorably toward a given object. “You hurt me, but I can promise to try to trust your ability to become someone who won’t hurt me in the future” is about all we can offer, and then only if we have the experiential background to select that statement in the face of our own grief. But forgiveness on the order of “It’s okay, that action doesn’t really count” makes no sense on the model of humanity I’ve been proposing. Everything counts.

You may respond, “Okay, but if we leave choice out of it, how are we to tell an intentional act from an accident? What does intent even mean because you’re saying that nobody can ever really choose to do anything?” True, we usually apportion judgment based on whether a subject intended harm or not. Did that saltshaker get filled with arsenic because we honestly made a mistake and filled it from the wrong bottle (because, apparently, we all keep bottles of arsenic around that look just like our bottles of salt) or did we maliciously place it there? How can a judge parse the gap between accident and intention if agency is removed from humans?

The answer is: much as a judge does now. Given an action, one must reflect on what the deep calculus involved most likely was. With the aid of evidence and testimony, the experiential background of the defendant can be built up. From that, a judge or jury member can use his or her own understanding of societal practice to assess whether the accused’s background and the given action are of a piece. “Can the set of chemicals, predispositions, and past experience that forms the basis of this human’s action palette be sensibly shown to lead to a malicious interpretation of the given action?” isn’t too far from the question that jury members ask themselves now. So again, I don’t see a radical departure from current legal practice in stripping humans of their claim to free will. It’s a difference of descriptive vocabulary, but that vocabulary set, in as far as it is prescriptive, is largely isomorphic to the one in current use, and so the deep structure of the system isn’t in any particular danger.

It’s time and past time to rise up and throw off the chimera of free will. We lose nothing by it except for words that we only ever used to inflict pain as a means of societal revenge, and we gain the ability to look on with honest wonder at the operating of ourselves in the world and to observe our actions of the day and say, along with that fine old Fiona Apple song, “Be kind to me, or treat me mean. I’ll make the most of it—I’m an extraord­inary machine.”


Dale DeBakcsy

Dale DeBakcsy is the author of The Cartoon History of Humanism, Volume One (The Humanist Press, 2016). He is a frequent contributor to FI’s Great Minds column and also writes the weekly Women in Science series at

There are three things that we humans seem to really want to believe in: the existence of God, the soul, and free will.

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