Abstract
The benefit-fairness theory of punishment (sometimes referred to simply as the “fairness” theory of punishment), which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment.
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Notes
I will use “fair play” and “fairness” interchangeably in this paper.
I prefer to refer to this theory (or perhaps more accurately, family of theories) as the “benefit-fairness” theory of punishment rather than simply as the “fairness” theory of punishment because some theories of punishment based on the idea of fairness focus on the loss suffered by the victim rather than the benefits obtained by the offender. See, e.g., G. Duus-Otterström, “Fairness-Based Retributivism Reconsidered,” 481.
I wish to also emphasize that, since the benefit-fairness theory appeals to fairness, it is very different from justifications of punishment that appeal to the idea of benefit without appealing to fairness, such as an instrumental justification that appeals to the beneficial effects of punishing the offender to the society or a paternalistic justification that is based on the benefits punishment may bring to the offender. I thank an anonymous reviewer for raising this point.
Z. Hoskins, “Fair Play, Political Obligation, and Punishment.”
See, e.g., J. Murphy, “Marxism and Retribution,” 217; G. Sher, Desert, Chapter 5.
See, e.g., R. Burgh, “Do the Guilty Deserve Punishment?,” 193, 207–210.
D. Boonin, The Problem of Punishment, 126–135.
The truth of the proportionality principle, of course, is not uncontroversial. Some consequentialists reject it. Note, however, that the benefit-fairness theory of punishment is usually offered as a retributive justification of punishment, and proportionality is, of course, one of the central tenets of retributivism.
For a recent attempt to defend CC against this objection, see R. Dagger, “Punishment as Fair Play,” 259. Hoskins considered and rejected Dagger’s response in “Fair Play, Political Obligation, and Punishment,” 57–58. See also R.A. Duff, “The Incompleteness of ‘Punishment as Fair Play’: A Response to Dagger,” 277.
I understand OC as claiming that a rule violator is required by fairness to disgorge the benefits he derived from other people’s compliance; in other words, I understand OC as claiming that the offender has a fairness duty to do so. It might be argued that, once we observe the distinction between claim rights and liberty rights in the Hohfeldian scheme, OC can be interpreted in a second, and slightly less controversial, sense. On that understanding of OC, OC only claims that it is fair, and thus permissible, to use force to extract disgorgement from the offender without claiming that the offender has a duty to disgorge (to illustrate the distinction, an enemy has no duty to be killed by you in wartime but it can nonetheless be permissible for you to kill him).
In reply, I think my discussion below will be largely intact even if we read OC in the second sense: my points below show not only that the amount of benefits that an offender is under a fair play duty to disgorge need not be proportionate to the seriousness of his wrongdoing; they also show that the amount that he can be permissibly forced to disgorge, based on the idea of fair play, need not be proportionate to the seriousness of his wrongdoing. (Relatedly, while Hoskins explicitly bases his theory on an offender’s duty to comply with the secondary rule instituting punishment, I believe my objection to his theory, laid out in Sect. 4, would apply even if we reformulate his theory slightly as one that claims only that it is permissible to force the offender to comply without claiming that the offender has a duty to comply.) I am grateful to an anonymous reviewer for helpful comments on this point.
On one interpretation of Herbert Morris’s famous paper, Morris is offering such an argument. See H. Morris, “Persons and Punishment,” 475; Burgh, “Do the Guilty Deserve Punishment?,” 202–206; P. Westen, “Retributive Desert as Fair Play.”
Burgh, “Do the Guilty Deserve Punishment?,” 205–206.
Peter Westen has suggested a fourth possibility. According to Westen, the amount of benefits that a rule violator derived from other people’s compliance that he is required to disgorge, as a matter of fair play, is simply determined by the seriousness of his rule violation. See Westen, “Retributive Desert as Fair Play”. If that understanding of the amount of disgorgement required by fair play is correct, then of course proportionate punishment can be justified by fair play. The problem with Westen’s theory is that he has not, so far as I can see, explained why that would be the amount of disgorgement required by the idea of fair play. It is difficult to believe that the amount of benefits a rule violator obtained from a collective enterprise that he can be asked to disgorge, as a matter of fair play, only depends on the seriousness of his rule violation but does not depend, for example, on how much he has benefited from the collective enterprise. To illustrate my point by way of an example, if my receipt of a gift is a result of free riding, then it is plausible that the idea of fair play would require me to disgorge the entire value of the gift; it follows that the amount of disgorgement, justified under fair play, would scale not only with the seriousness of the rule violation but also with the amount of benefits received. A full consideration of Westen’s theory is, however, beyond the scope of this paper.
Burgh, “Do the Guilty Deserve Punishment?,” 205.
Ibid., 205–206.
For a similar line of thought, see A. Ellis, The Philosophy of Punishment, 69.
See Hoskins, “Fair Play, Political Obligation, and Punishment,” 55; H.L.A. Hart, “Are There Any Natural Rights?,” 175, 185.
A.J. Simmons, Moral Principles and Political Obligations, 118–136.
Hoskins considered this objection in “Fair Play, Political Obligation, and Punishment,” 67–70. For a reply to the voluntariness objection which is endorsed by Hoskins, see G. Klosko, “Presumptive Benefit, Fairness, and Political Obligation,” 241.
For the distinction, see, e.g., Westen, “Retributive Desert as Fair Play,” 72.
Hoskins, “Fair Play, Political Obligation, and Punishment,” 59.
Ibid.
Ibid., 60.
Ibid., 60–61.
Ibid., 61.
Ibid., 62–63.
In fact, it is not clear to me that the rule instituting punishment has, as Hoskins believes, a significant deterrent effect. We should distinguish between a rule, which imposes obligations, and a prediction. (See H.L.A. Hart, The Concept of Law for a clear discussion of the distinction.) Hoskins clearly takes the statement “if you commit a crime, then you are subject to punishment” as a rule rather than a prediction, as his case is premised upon an offender’s duty to comply and one can comply only with a rule but not a prediction (see, e.g., p. 60). It is plausible that many potential offenders would be deterred if they predict that punishment would result from a breach of criminal law. By contrast, it is unclear that many potential offenders would be deterred by the mere fact that he would incur an obligation to submit to punishment if he commits a crime. Development of this point may lead to another fatal objection to Hoskins’s theory, which is independent from the objection I develop in Sect. 4 below. Due to the limitation of space, I will not develop this objection further and will set aside this objection in the remaining parts of this paper.
Ibid., 63.
For the requirement of fairness more generally, see, e.g., Klosko, “Presumptive Benefit, Fairness, and Political Obligation,” 242–244.
Hoskins, “Fair Play, Political Obligation, and Punishment,” 59.
Ibid., 54, 63–64, 69. This question is, of course, prior to the question of what level of punishment is permissible in particular cases; as an analogy, if we can never justifiably use force to defend ourselves, then it would be pointless to talk about what level of force we can use in self-defence in different situations.
For the consent theory of punishment, see C. Ninos, “A Consensual Theory of Punishment,” 289. For the objection, see, e.g., L. Alexander, “Consent, Punishment, and Proportionality,” 178; Boonin, The Problem of Punishment, 168–170.
Hoskins, “Fair Play, Political Obligation, and Punishment,” 69.
For the distinction between negating a duty and overriding a duty, see, e.g., J. Gardner, Offences and Defences, 96–97.
Hoskins, “Fair Play, Political Obligation, and Punishment,” 69.
J. Waldron, “Lex Talionis,” 25, 38–51. This is so unless, of course, one adopts a circular conception of disrespect.
Hoskins, “Fair Play, Political Obligation, and Punishment,” 69.
Simmons, Moral Principles and Political Obligations, 111.
See Ibid., 110; C. Gans, “Justice-Conditioned and Democracy-Based Obedience,” 92, 93–99; I. Meketa, “Honor Among (the Beneficiaries of) Thieves,” 385, 386.
References
Alexander, L. “Consent, Punishment, and Proportionality,” Philosophy &Public Affairs 15(2) (1986): 178–182.
Boonin, D. The Problem of Punishment (Oxford: Oxford University Press, 2008).
Burgh, R. “Do the Guilty Deserve Punishment?,” The Journal of Philosophy 79 (4)(1982): 193–210.
Dagger, R. “Punishment as Fair Play,” Res Publica 14(4) (2008): 259–275.
Duff, R.A. “The Incompleteness of ‘Punishment as Fair Play’: A Response to Dagger,” Res Publica 14(4) (2008): 277–281.
Duus-Otterström, G. “Fairness-Based Retributivism Reconsidered,” Criminal Law and Philosophy 11(3) (2017): 481–498.
Ellis, A. The Philosophy of Punishment (Edinburgh: Edinburgh University Press, 2012).
Gans, C. “Justice-Conditioned and Democracy-Based Obedience,” Oxford Journal of Legal Studies 8(1) (1988): 92–110.
Gardner, J. Offences and Defences (Oxford: Oxford University Press, 2007).
Hart, H.L.A. “Are There Any Natural Rights?,” The Philosophical Review 64(2) (1955): 175–191.
Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press, 1961).
Hoskins, Z. “Fair Play, Political Obligation, and Punishment,” Criminal Law and Philosophy 5(1) (2011): 53–71.
Klosko, G. “Presumptive Benefit, Fairness, and Political Obligation,” Philosophy & Public Affairs 16(3) (1987): 241–259.
Meketa, I. “Honor Among (the Beneficiaries of) Thieves,” Ethical Theory and Moral Practice 18 (2015): 385–402.
Morris, H. “Persons and Punishment,” The Monist 52(3) (1968): 475–501.
Murphy, J. “Marxism and Retribution,” Philosophy & Public Affairs 2(3) (1973): 217–243.
Nino, C.S. “A Consensual Theory of Punishment,” Philosophy & Public Affairs 12(4) (1983): 289–306.
Sher, G. Desert (Princeton, NJ: Princeton University Press, 1989).
Simmons, A.J. Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979).
Waldron, J. “Lex Talionis,” Arizona Law Review 34(1) (1992): 25–51.
Westen, P. “Retributive Desert as Fair Play,” in K. Ferzan and S. Morse (eds.), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford: Oxford University Press, 2016).
Acknowledgements
I am grateful to Cora Chan, Frank Choi, and the anonymous reviewers for helpful comments. This work was supported by GRF Grant 17612315 from the Hong Kong Research Grants Council and I am grateful for the financial support.
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Chau, P. Hoskins’s New Benefit-Fairness Theory of Punishment. Criminal Law, Philosophy 13, 49–61 (2019). https://doi.org/10.1007/s11572-018-9458-9
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DOI: https://doi.org/10.1007/s11572-018-9458-9