Abstract
My main aims in this paper are to further clarify and defend the Duty View of punishment, outlined in my book The Ends of Harm, by responding to some objections to it, and by exploring some variations on that view. I briefly lay out some steps in the justification of punishment that I defend more completely in Chapter 12 of The Ends of Harm. I offer some further support for these steps. They justify punishment of an offender for general deterrence reasons if the beneficiary of general deterrence is the victim of the crime. They do so firstly on the basis that offenders incur compensatory duties to victims. I then show that duties incurred through serious wrongdoing are not limited to the duty to provide full compensation. Because offenders incur the relevant duties, and the duties are enforceable, harming them to protect their victims does not wrong them. I then consider whether an offender can be harmed in order to protect people other than the victims of her crime. In this section, I respond to an important challenge to the general idea that we can justify punishment on the basis of duties incurred as a result of wrongdoing, a challenge that I had met only in part in The Ends of Harm. It might be argued that the duties that we incur through serious wrongdoing are owed only to victims of crime. In punishing offenders, in contrast, we aim to protect people in a society more generally, and not just crime victims. A plausible theory of punishment must demonstrate that we are justified in pursuing this aim. Hence, it might be argued, the Duty View fails. I will respond by showing that the duties incurred through wrongdoing are not limited to duties owed to victims, and hence this challenge to the Duty View can be met.
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Notes
Some retributivists claim that there are non-instrumental reasons or duties to punish wrongdoers without relying on the impersonal value of these actions or their outcomes. See, for example, D Husak ‘Retributivism In Extremis’ (2013) 32 Law and Philosophy 3; A Haque ‘Retributivism: The Right and the Good’ (2013) 32 Law and Philosophy 59. I find the explanations of how such reasons and duties arise in these views elusive, so I continue to think the version of retributivism sketched here (although false) more promising.
See J Gardner and F Tanguay-Renaud ‘Desert and Avoidability in Self-Defense’ (2011) 122 Ethics 111.
For the distinction between wide and narrow proportionality, the latter of which is concerned with the harm that may proportionately be imposed on those who are liable to be harmed, see J McMahan Killing in War (Oxford: OUP, 2009) 20–21. McMahan identifies narrow proportionality with liability rather than desert, but a similar contrast between wide and narrow proportionality is relevant to those who accept desert.
For views of this kind, see D Husak ‘Why Punish the Deserving’ (1992) 26 Nous 447 and ‘Retribution in Criminal theory’ (2000) 37 San Diego Law Review 959; M Berman ‘Punishment and Justification’ (2008) 118 Ethics 258.
See V Tadros The Ends of Harm: the Moral Foundations of Criminal Law (Oxford: OUP, 2011), especially Chapter 4.
For this contrast between liability and desert, see McMahan Killing in War, 8–9. McMahan suggests that desert implies intrinsic goodness rather than impersonal value. Not all friends of desert think that it is intrinsically good that wrongdoers get what they deserve, though. See, for example, Husak ‘Retributivism In Extremis’.
See The Ends of Harm Chapter 5.
Drawn from The Ends of Harm, especially Chapters 12–15.
This counterfactual account of compensation is not uniformly accepted. There are various problems, such as the problem of overdetermination, that need addressing. I consider this in more depth in ‘What Might Have Been’ in J Oberdiek Philosophical Foundations of the Law of Torts (Oxford: OUP, 2014).
For the importance of the distinction between negation and compensation, see A Slavny ‘Negating and Counterbalancing: a Fundamental Distinction in the Concept of a Corrective Duty’ (2014) 33 Law and Philosophy 143.
For this complaint, see, for example, R A Duff Punishment, Communication, and Community (Oxford: OUP, 2001) 16–19; D Pereboom Free Will, Agency, and Meaning in Life (Oxford: OUP, 2014) 165–169.
Though he is not completely clear about it, this is I think the driving force behind Daniel Farrell’s restrictive account of general deterrence in ‘The Justification of General Deterrence’ (1985) XICV Philosophical Review 367. The general idea that a person may intentionally be harmed only to avert threats that she is responsible for creating is familiar from the philosophy of self-defence. See, for example, J McMahan ‘The Basis of Moral Liability to Defensive Killing’ (2005) 15 Philosophical Issues 386.
I am grateful to Andrew Williams for pressing me to explore this objection on a thread on Chapter 12 of The Ends of Harm on the moral philosophy blog PEA Soup.
The View from Nowhere, 180.
See, for example, W FitzPatrick ‘The Intend/Foresee Distinction and the Problem of “Closeness” (2006) 128 Philosophical Studies 585; N F Delaney ‘Two Cheers for “Closeness”: Terror, Targeting and Double Effect’ (2008) 137 Philosophical Studies 335; R Wedgwood ‘Defending Double Effect’ (2011) XXIV Ratio 384.
Here I draw on Jonathan Bennett’s challenge to the Nagelian view of the significance of intentions. See The Act Itself (Oxford: OUP, 1995) Chapter 11.
The alternative view was first suggested in W Quinn ‘Actions, intentions and consequences: the Doctrine of Double Effect’ in Morality and Action (Cambridge: CUP, 1993). For support, see J McMahan ‘Revising the Doctrine of Double Effect’ (1994) 11 Journal of Applied Philosophy 201; P A Woodward ‘The Importance of the Proportionality Condition to the Doctrine of Double Effect: A Response to Fischer, Ravizza, and Copp’ (1997) 28 Journal of Social Philosophy 140; F M Kamm Intricate Ethics: Rights, Responsibilities, and Permissible Harm (Oxford: OUP, 2007) Chapter 3; I A Smith ‘A New Defense of Quinn’s Principle of Double Effect’ (2007) 38 Journal of Social Philosophy 349; D K Nelkin and S C Rickless ‘So Close, Yet So Far: Why Solutions to the Closeness Problem for the Doctrine of Double Effect Fall Short’ Noûs doi:10.1111/nous.12033; V Tadros ‘Wrongful Intentions without Closeness’ (unpublished ms.).
This is true for any account of what closeness means that is fit for the purpose of distinguishing standard cases that we aim to distinguish by relying on the significance of intentions. See, further, Tadros ‘Wrongful Intentions without Closeness’.
See, further, Tadros The Ends of Harm 354–356.
My own view is that well-being is the standard currency of compensation, and a complex counterfactual account provides the measure of compensation. See Tadros ‘What Might Have Been’.
Some critics characterize the Duty View as a kind of closet consequentialism (see L Zaibert ‘The Instruments of Abolition, or Why Retributivism is the Only Real Justification of Punishment’ (2013) 32 Law and Philosophy 33), others as a kind of closet retributivism (see D Farrell ‘Using Wrongdoers Rightly: Tadros on the Justification of General Deterrence’ Criminal Law and Philosophy, forthcoming). As this paragraph suggests, neither view is true.
I will return to the application of these two principles below.
See The Ends of Harm 286–291.
L Levanon ‘Punishment, Duty and Self-Defense: A Comment on Victor Tadros’ The Ends of Harm (2012) 5 Jerusalem Review of Legal Studies 75.
Farrell ‘Using Wrongdoers Rightly’.
See, for example, McMahan ‘The Basis of Moral Liability to Defensive Killing’.
This case is drawn from G Kavka ‘The Paradox of Future Individuals’ (1982) 11 Philosophy and Public Affairs 93, 100.
For an objection of this kind, see R A Duff ‘Punishment and the Duties of Offenders (2013) 32 Law and Philosophy 109. For my initial response, see ‘Responses’ (2013) 32 Law and Philosophy 241.
Would things be different in the case where the offender’s conduct is wrong, but it is reasonable to believe that it is not wrong? This raises issues discussed in the context of the kind of political liberalism defended by John Rawls and others that I lack the space to address here.
For discussion of this point, see Tadros The Ends of Harm, 133.
I say more about this in The Ends of Harm Chapter 13.
For this objection, see K Ferzan ‘Rethinking The Ends of Harm’ (2013) 32 Law and Philosophy 177; and for an initial response, see V Tadros ‘Responses’. Kit Wellman is tempted by the view that, if a wrongdoer forfeits her right against being harmed, she may be harmed for any reason at all. See ‘The Rights Forfeiture Theory of Punishment’ (2012) 122 Ethics 371.
It is one dimension of what McMahan calls ‘narrow proportionality’. Narrow proportionality is concerned with whether harming a liable person to secure certain ends is proportionate (see Killing in War, 20–32. This is contrasted with wide proportionality, which is concerned with harm to non-liable people. McMahan is primarily concerned with the maximum harm threshold. The internal justification principle provides one way of responding to aggregation problems that McMahan identifies. See Killing in War, 23–4.
I am grateful to Jeff McMahan for this objection.
For this feature of ordinary morality, see S Kagan The Limits of Morality (Oxford: OUP, 1989) 16.
This aspect of regret is explored in Tadros The Ends of Harm 44–51. See, also, ‘Responses’ 267–274 for further exploration.
Acknowledgments
I’m grateful to audiences at the Goethe Institute, Frankfurt and at Rutgers University for constructive engagement with an earlier version of this paper. I am especially grateful to Jeff McMahan, who was my commentator at Rutgers.
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Tadros, V. Punishment and the Appropriate Response to Wrongdoing. Criminal Law, Philosophy 11, 229–248 (2017). https://doi.org/10.1007/s11572-014-9352-z
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DOI: https://doi.org/10.1007/s11572-014-9352-z