CLAY SHIRKY is an adjunct professor in New York University Graduate School’s Interactive Telecommunications Program. He is the author of Voices from the Net.
In 2002, a group of teenagers sued McDonald’s for making them fat, charging, among other things, that McDonald’s used promotional techniques to get them to eat more than they should. The suit was roundly condemned as an erosion of the sense of free will and personal responsibility in our society. Less widely remarked upon was that the teenagers were offering an accurate account of human behavior.
Consider the phenomenon of supersizing, wherein restaurant patrons are offered the chance to increase the portion size of their meal for some small amount of money. This presents a curious problem for the concept of free will: The patrons have already made a calculation about the amount of money they are willing to pay in return for a particular amount of food; however, when the question is re-asked—not “Would you pay $5.79 for this total amount of food?” but “Would you pay an additional 30 cents for more french fries?”—patrons often say yes, despite having answered “No,” moments before, to an economically identical question.
Supersizing is expressly designed to subvert conscious judgment, and it works. By reframing the question, fast-food companies have found ways to take advantages of weaknesses in our analytical apparatus—weaknesses that are being documented daily in behavioral economics and evolutionary psychology.
This matters for more than just fat teenagers. Our legal, political, and economic systems—the mechanisms that run modern society—all assume that people are uniformly capable of consciously modulating their behaviors. As a result, we regard decisions they make as being valid, as in elections, or we hold them responsible for actions they take, as in contract law or criminal trials. Then, in order to get around the fact that some people obviously aren’t capable of consciously modulating their behavior, we carve out ad hoc exemptions. In U.S. criminal law, a fifteen-year-old who commits a crime is treated differently from a sixteen-year-old. A crime committed in the heat of the moment is treated specially. Some otherwise illegal actions are not crimes when their perpetrator is judged mentally incapable, whether through developmental disabilities or other forms of legally defined insanity, and so on.
This theoretical divide—between the mass of people with a uniform amount of free will and a small set of exceptional individuals—has been broadly stable for centuries, in part because it is based on ignorance. As long as we are unable to locate any biological source of free will, treating the mass of people as if each of them had the same degree of control over their lives makes perfect sense; no wiser judgments are possible. However, that binary notion of free will is being eroded, as our understanding of the biological antecedents of behavior improves.
Consider laws governing convicted pedophiles. Concern about their recidivism rate has led to the enactment of laws that restrict their freedom based on what they might do in the future, even though this expressly subverts the notion of free will in the judicial system. The formula here—heinousness of crime times the likelihood of a repeat offense—creates a new, noninsane class of criminals whose penalty is indexed to a perceived lack of self-control.
But pedophilia is not unique in its measurably high recidivism rate. Rapists also have higher-than-average rates of repeat offense. Similarly, thieves of all varieties are likelier to become repeat offenders if they have short time-horizons or poor impulse control. Will we keep more kinds of criminals constrained after their formal sentence has been served, as we become better able to measure the likely degree of control they have over their own future actions? How can we, if we are to preserve the idea of personal responsibility? How can we not, once we are able to quantify the risk?
Criminal law is just one area where our concept of free will is eroding. We know that men make more aggressive decisions after they have been shown pictures of attractive female faces. We know that women are more likely to commit adultery on days when they are fertile. We know that patients committing involuntary physical actions routinely report, in order to preserve their (incorrect) belief that they are in control, that they decided to undertake those actions. We know that people will drive across town to save $10 on a $50 appliance but not on a $25,000 car. We know that the design of the ballot affects a voter’s choices. And we are still in the early days even of understanding these effects; as we do, it becomes progressively easier to design everything from sales strategies to drug compounds to take advantage of them.
Conscious self-modulation of behavior is a spectrum. But we have been treating it as a single property—either you are capable of free will or you fall into an exceptional category—because we have been unable to identify, measure, or manipulate the various components that go into such self-modulation. Those days are now ending, and everyone from advertisers to political consultants increasingly understands, in voluminous biological detail, how to manipulate consciousness in ways that weaken our notion of free will.
In the coming decades, our social and political concept of free will, based as it is on ignorance of its mechanisms, will be destroyed by what we learn about the actual workings of the brain. We can wait for that collision and decide what to do at that point, or we can begin thinking through what sort of legal, political, and economic systems we will need in a world in which our old conception of free will has been rendered inoperable.