Carel Smith is right to strike at neuroscientists' claims that the human will does not exist (blog of January 10). If the will would be an illusion, as they claim, law would be groundless indeed.
But how does Smith prove them wrong? The will may not be of the realm of hard facts of nature, he argues, it is of the realm of 'institutional facts'. These institutional facts are a matter of belief, but they are nevertheless objective.
I am not convinced. Smith seeks an escape from the mental determinism of neuroscience's 'fact' into a more sophisticated view of fact. But why into 'institutional fact'? This notion, coined by John Searle (Berkeley) takes us out of the frying pan into the fire.
The frying pan is that of neuroscientists who deny Will, Freedom, Morality etcetera. Their theories are guaranteed to raise small talk at parties. We lawyers may get cornered in such chatter, for the neuroscientists love to call the bluff of law, especially criminal law. Will? Guilt? Responsibility? Illusions!
But if you come to the law's defence, beware of Searle’s ideas! Searle (and Smith) hold that 'institutional facts', such as money or words, or rules, or will, draw their objective status not from nature but from the social context. These institutional facts, just like 'facts of nature', have no time and place. Unlike facts of nature they are fictitious, but nevertheless they are real between people 'because we believe them to be real'.
Is that a help, really? Let us now focus on the free will. Is the will a legal fact? No, it isn't. It is a legal notion, invented by the Romans and in many (mostly implicit) ways crucial to our modern systems of law. Indeed, throw out the will and there goes much of the law, too.
But that doesn't turn the will into a fact, in the eyes of the law. Free will has no status of fact in law, unless joined to a legally relevant fact such as a contract, a judgment, or a crime.
'Institutional facts', says Smith, have no time or place. But that is precisely why they can hardly be facts of law.
Law is essentially a form of history. Most legal facts are historic facts in the first place. That is why a contract has a time and place of conclusion, and has parties acting out their wills. That is why no one should be convicted of a crime that has no time and/or place. Everywhere in law, history is key.
The (free) will, as a legal notion, is an abstraction from its utterance or appearance at a defined place & moment in a (legal) act. Without that historic fact and its time and place, the will goes up into the thin air of belief indeed. But no belief should find its way into the law without a firm check of real fact. Where it does, injustice is sure to follow.
Nor should 'will as belief' find its way into legal thinking. So in jumping out of the frying pan of 'natural fact' (will as an illusion), be sure not to land in the fire of 'institutional fact' (will as belief). For salvation, jump to fact of history, where free will appears as real, as part of an objective and possibly legally articulated act or fact, and beyond the reach of 'neuroscience'.