ABSTRACT
In the case of Steward Mach. Co. v. Davis, Judge Benjamin Nathan Cardozo said that “Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems”. This hypothesis, which has previously been defended almost wholly within the confines of philosophical reflections on human responsibility, now seems to be undergoing a new wave of considerations. This is because neuroscience has been brought to bear in court proceedings in order to challenge the existence of human free will, in cases of both civil and criminal law. In the media, to a greater or lesser degree, various specialists have published the results of all kinds of experiments along with diagrams and graphs, technical advice and new machines to back up their claims. Currently, the use of some of these techniques in court and their lack of sustainability in many situations has, in turn, been emphasized, especially in the context of judicial proof (and reasonable doubt). In this sense, we can say that the issue of free will has been considered, but not always clearly, on three different levels: as a problem of description, of substance or of prescription. At the descriptive level is the question of what exactly we mean when we talk about free will. On the substantive level is the question of whether or not human beings actually possess this quality called free will. And finally, on the prescriptive level is the question of what we do with this knowledge. In this article, we offer an analysis of the problematic relationships between these three levels, beginning with a critical look at certain descriptive positions. In the end, it is suggested that these isolated descriptions, whether in the field of neuroscience, or philosophy, have led to an impasse whose effect is that the assertion that freedom in human behaviour is an illusion, and free will, a great mystery. As a possible way out, we present three modifications to the debate in order to extend its intelligibility beyond the boundaries of the legal profession.