What makes people storm a university out of the blue and shoot dozens of their classmates? Why can a spouse, after thirty years of happy marriage, without apparent provocation, suddenly murder his partner? How come inconspicuous, nice men are identified as brutal sexual offenders by their neighbours? In order to answer these questions, we must be empirically knowledgeable. We need information about how the delinquents have grown up, what kind of education they have had, whether they were mentally fit, and so on. Equipped with this kind of knowledge, we can try to prevent similar future crimes and find out whether or not offenders can learn to honour the laws of our society.
The more we find out about what made an offender strike, the less plausible it is to demand what theologically and philosophically oriented politicians and scientists of certain persuasions require. They say that, apart from the known and unknown empirical facts which can be scientifically proven to cause a certain deed, there has to be an additional non-empirical, non-measurable, but necessary and essential factor: the free determination.
If this is so, then the crime prevention people and jurists will have to find out how to successfully influence offenders’ determination process in order to prevent future crimes and offer the delinquents therapeutic assistance. While trying to do this, they will constantly make the experience of not knowing what to look for in order to influence it. They will be able to see all other factors that determine an action, but this one, most important, most essential, the one which alone makes an action an action – they have no idea where even to start looking for it.
Those few naïve crime prevention people and criminal jurists who ask professors of philosophy for advice will get a strange reply: The reason why nobody can study free determination in order to modify it towards a law-abiding attitude is that free determination cannot be empirically measured. It is, so they say, an error of categories to try and regard free determination as an empirical fact. After all, Kant proved that free determination belongs to the transcendental, not to the physical, empirical subject. The transcendental subject exists in the intelligible (mental) world where freedom is a necessary requirement for any ethically valuable action. Even if this freedom cannot be seen anywhere in the empirical world, that does not mean it is invalid for the transcendental subject.
With this idea of a good joke, crime prevention specialists have allowed themselves to be made fun of for almost a whole century by ethics specialists. A judge is not interested in the transcendental aspect of a person, but in the empirical aspect. If a judge sends a man behind prison bars, then he cannot send his transcendental subject there. He has to send the actual person. While the transcendental subject may well be necessary for mental consideration, the empirical is the one roaming the streets or sitting in prison
It does therefore not come as a surprise that the crime prevention people have ceased to consult professors of transcendental philosophy. Instead, they are now turning to neurologists. For the first time in history, a criminal scientist at Rostock University has written a dissertational thesis on the importance of neurological findings for our definition of freedom and applied it to formulate guilt in its judicial meaning. In his thesis Grenzen der Freiheit/Limits to Freedom, Grischa Detlefsen has shown that our criminal law as practiced is “unconstitutional” if preventing a crime requires that the potential offender does not refrain from committing the crime self-determinedly. This, however, is exactly what our criminal law requires, because it is based on an ancient definition of guilt which has been strongly influenced by theological tradition. During a public debate with Michel Friedman and Gerhard Roth at Frankfurt University on April, 27th, the author of this article tried to arouse a public consciousness for the problem of the “limits of freedom”. Not a single professor of philosophy or criminal law was prepared to contribute in Frankfurt unbiased. In view of how tolerant other universities have treated those scientists who introduce non-conformist aspects, I wonder when the Keepers of the Wholy Grale of free determination in Frankfurt/Main will finally stop putting pressure on their young scientists and journalists in order to smother the tiniest flame that threatens to break the spell of the neurobiological theory of the transcendental subject!
Translation by Evelyn Gemkow