Fair Play, Political Obligation, and Punishment
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- Cite this article as:
- Hoskins, Z. Criminal Law, Philosophy (2011) 5: 53. doi:10.1007/s11572-010-9103-8
- 237 Views
This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment’s permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such views struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment’s permissibility follows more straightforwardly from the fair play view of political obligation: specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment.
KeywordsPunishmentFair playPolitical obligationReciprocity
I refer to this throughout as the question of punishment’s in-principle permissibility.
Even if we assume that those who break the law are responsible for their actions and that the laws they break are just and reasonable, this practice raises a moral problem. How can the fact that a person has broken a just and reasonable law render it morally permissible for the state to treat him in ways that would otherwise be impermissible? (Boonin 2008, p. 1)
In this paper, I offer a defense of punishment’s in-principle permissibility. My account is a version of the fair play view, according to which, briefly, the permissibility of punishment derives from reciprocal obligations shared by members of a political community, here understood as a mutually beneficial, cooperative social venture. Mine is a nonstandard fair play account, however, in that most fair play accounts aspire to offer unified theories of punishment—that is, they employ considerations of fair play to ground not only punishment’s in-principle permissibility, but also its positive justification as well as sentencing guidance. By contrast, my fair play view is more modest; it seeks only to provide an answer to the permissibility question. I contend that in this context, modesty is a virtue. Because my account offers only an answer to the in-principle permissibility question, but not to the positive aim question or to questions of how we may punish, it avoids certain powerful objections that have been raised against standard articulations of the fair play view. What’s more, as I argue below, my focus on only the permissibility question is not ad hoc; to the contrary, a closer examination of the fair play view’s evolution from a theory of political obligation to a defense of punishment indicates that there are good reasons to expect that it is suitable as an answer only to the permissibility question. Punishment’s positive aim and the constraints on how it is administered in particular cases must be grounded in distinct considerations.
It’s worth emphasizing at the outset that the challenge with which I am concerned here is not that this or that sort of punishment (or punishment for violation of these or those laws, or within this or that political system) is impermissible, but rather that the practice of punishing per se is impermissible. If this objection is correct, then all punishment will be ruled out from the start. By the same token, even if, as I argue below, considerations of fair play can ground a satisfactory answer to the in-principle permissibility question, actual inflictions of such harm could nevertheless be impermissible—e.g., as a response to unjust or unreasonable laws, or when inflicted to an excessive degree or in an inhumane manner, etc. My concern in this paper is thus not to provide a complete justification for punishment, but rather to establish that, and explain why, punishment is in principle a permissible response to criminal violations.
In section I, I examine the standard articulation of the fair play view. I consider how the view, first offered as an account of political obligation, has been extended to justify punishment, and why this justification ultimately fails. In section II, I develop my alternative version of the fair play view, on which the defense of punishment’s in-principle permissibility follows more straightforwardly from fair play’s answer to the political obligation question. I contend that my version of the view fares better than standard articulations on a number of counts. Finally, in section III, I consider certain objections to my view. As will become clear, these objections essentially are objections to the fair play view of political obligation—and although I do not attempt here to offer a full defense of this broader view, I do at least aim to address particular concerns that may emerge from my inclusion of punishment among the rules to which we have a moral obligation to comply.
The Standard Fair Play Account and its Drawbacks
As espoused by Hart, the fair play view grounded a reciprocal obligation to comply with the rules of a mutually beneficial political community. It said nothing about what would be a justified response to those who failed to meet this obligation. Several theorists of punishment, however, have used the fair play principle as their foundation in developing a defense of the practice of punishment. The crucial claim for extending the fair play view to justify punishment is that when a member of the community chooses not to comply with the community’s laws, she takes an unfair advantage relative to her fellow community members. That is, she unfairly benefits twice: Like everyone, she reaps the benefits that general compliance with the law makes possible, but she additionally benefits in that she, unlike her fellow community members, doesn’t constrain her behavior in compliance. Typically, then, on fair play accounts the offender is portrayed as a free rider, and punishment is defended as a means of removing the offender’s unfair advantage by imposing a burden on the offender proportionate to the additional benefit she unfairly gained through her crime (c.f., Morris 1968).5
The standard articulation of the fair play view of punishment is inadequate in two key respects: The first is that the fair play view often misconstrues what makes a criminal act worthy of punishment, or as R. A. Duff writes, “it offers a distorted picture of the punishment-deserving character of crime” (Duff 2001, p. 22). That is, we tend to think that a person who has, for instance, tortured someone should be punished not because she has gained an unfair advantage over other members of the community generally, but rather because of the heinous moral wrong she has committed against her victim. In other words, we do not typically think of serious mala in se crimes such as torture, murder, or rape as primarily matters of free riding.
The second deficiency of standard fair play accounts involves the specification of the offender’s unfair benefit. Put simply, there doesn’t seem to be any advantage that an offender gains, in proportion with the seriousness of her crime, relative to community members generally.6 One option is that the offender gains freedom from the burden of self-constraint in compliance with the particular law. If so, then the appropriate severity of punishment will be proportionate to the burden others feel in complying with that law. But compliance with laws is often no real burden for most citizens. In fact, compliance with prohibitions on egregious offenses (murder, assault, etc.) typically is less burdensome than is compliance with prohibitions on lesser crimes (tax evasion, jaywalking, etc.) given that we may be more often tempted to commit the lesser crimes. Thus relatively less serious violations will often appear to merit relatively more severe punishments, a deeply counterintuitive conclusion. Instead, perhaps the offender gains freedom from the burden of compliance with the rule of law in general (c.f., Dagger 1993).7 This route, however, appears to lead to the objection that all offenses become, for the purposes of punishment, the same offense. Both the murderer and the tax cheat have failed to comply with the rule of law generally while benefiting from the general compliance of others. If the punishable offense is the same, however, then the two cases appear to warrant equal punishments, and again, this strikes most of us as counterintuitive (c.f., Boonin 2008, pp. 125–26). Thus the particular- and general-compliance views appear unsatisfactory.8
The tax evader takes advantage of many people—millions of them in many cases—but her offense typically does not make it difficult for them to continue doing their part in the cooperative practice. With the rapist, the murderer, and the batterer, however, the offender has done something that makes it difficult or even impossible for his victim to contribute further to the ongoing cooperation. He has offended against the interests and integrity of his victim, to be sure, but he has also offended against the requirements of a society based on fair play, and his offense is thus a more serious crime of unfairness than the tax evader’s. (ibid.)
There are, I believe, two significant problems with this argument. First, it’s not clear that the rapist does make it more difficult for his victim than the tax evader makes it for her victims to contribute further to the ongoing cooperation. As Dagger has (rightly) characterized it, the relevant sense of cooperation here is cooperation in complying with the law in general. But although rape clearly is a more egregious violation than tax evasion, it’s not clear that one way in which it is more egregious is that the rape victim’s ability to “further the ongoing cooperation” by accepting the burden of compliance with the law is especially diminished.
Second, even if the more serious crime does more severely threaten its victim’s ability to contribute to the fair cooperative venture, this does not demonstrate that such a crime is a more serious crime of unfairness than the less serious crime. Put more simply, an act may undermine fairness without itself being unfair.9 On the standard fair play view’s characterization, crimes are unfair in the sense of free riding. Offenders accept the benefits made possible by the general compliance of others with the law, and then they choose not to reciprocate. It’s just not clear, however, that by more seriously undermining the fair political order, an offender has therefore been more of a free rider. In fact, given that the offender (like everyone) benefits from the cooperative venture, then to the extent that she offends against the cooperative venture (by undermining the victim’s ability to contribute to it), she is actually more likely to harm rather than benefit herself. Free riders can only ride freely when the practice from which they draw benefits, but to which they do not contribute, thrives. Thus it’s unclear how, by more seriously offending against the cooperative venture, the offender would more egregiously free-ride than in cases in which she less seriously offends against the cooperative venture.10
Ultimately, the fair play view is unable to provide a plausible univocal account of punishment that grounds not only its in-principle permissibility but also its positive aim and sentencing guidance in particular cases. Traditional fair play articulations provide the wrong answer, at least in many cases, to the question “why should we punish this crime?” In addition, they are unable plausibly to specify any benefit that an offender unfairly gains, in proportion to the seriousness of her crime, over law-abiding community members generally. And although Dagger’s recent fair play defense is a significant improvement over traditional accounts, it is not ultimately an integrated account. Rather, it implicitly appeals both to the traditional, deontological conception of fair play as well as the consequentialist aim of preserving a fair political order. As will become clear in the next section, however, I do not regard fair play’s inability to answer all the questions of punishment as a liability. Rather, on the account I propose, there is good reason to expect that the fair play view will ground only the in-principle permissibility of punishment, and that punishment’s positive aim and guidance regarding appropriate sentencing will require appeal to distinct considerations.
An Alternative Fair Play Account
[W]hen a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission (Hart 1955, p. 185).
So, as a member of a cooperative enterprise, if I benefit from others’ playing by the rules, then I should play by the rules as well. But which rules? The rules most frequently appealed to by fair play accounts of political obligation and of punishment are the political community’s criminal statutes, the laws prohibiting, say, murder, theft, tax evasion, drug trafficking, etc. Two features of such rules are relevant for present purposes: First, they are the sort of rules with which we can comply (by not murdering or stealing, by paying our taxes, etc.). Second, general compliance with these rules provides a significant benefit. These are the two central features for generating the fair play obligation: If general compliance with a rule is beneficial to me, then I have an obligation of fairness similarly to comply.11 In this section, I defend the claim that the rule instituting punishment as a response to crimes is itself one of the rules with which we have an obligation of fairness to comply. Thus, on my account, punishment is in-principle permissible not because it removes some benefit offenders have unfairly gained relative to law abiders. Rather, punishment is permissible because the rule instituting punishment as a response to crimes is itself one of those rules with which we, who benefit from general compliance with the rule, have a fair play obligation to comply. To defend this claim, I need to say more about how I understand the rule instituting punishment as a response to crime. In particular, I need to establish that this is the sort of rule with which we can comply, and also that general compliance with this rule yields significant benefits.
Hart, in his The Concept of Law, famously distinguished “primary rules” from “secondary rules.” Perhaps the most obvious examples of primary rules are the criminal statutes, the prohibitions on murder, tax evasion, etc. By contrast, secondary rules are rules about the primary rules. Secondary rules “specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart 1994, p. 94).12 Put simply, Hart characterized primary rules as imposing duties or obligations, and secondary rules as conferring powers (ibid., esp. pp. 79–99). Among the secondary rules, Hart mentioned certain rules governing punishment—e.g., the rules governing what punishments are appropriate (rules “specifying or at least limiting the penalties for violation”) in particular cases, and also the rules granting the legal system the exclusive power to administer punishments (ibid., pp. 97–98).
I suggest that another rule regarding the punishment of violations, though not cited here by Hart, is that establishing punishment per se as the appropriate response to a crime. Such a rule is conceptually prior to the rules governing what punishments are appropriate in particular cases; that is, determining the appropriate punishment in a given case implies that punishment itself is the appropriate response to the criminal wrongdoing. There is nothing in the conception of a criminal law that entails that the law must be backed by punishment.13 Indeed, other forms of response to the violation of such laws have been suggested: public (nonpunitive) censure, or restitution, for example. Thus if punishment is to be the response to violations of criminal statutes, this will be because it has been designated as the appropriate response by some rule of the political community.
The rule instituting punishment as the response to crime is a rule of remediation. Whereas criminal statutes tell us things such as “don’t commit murder,” “pay your taxes,” or “don’t park in front of a fire hydrant,” the rule instituting punishment tells what is to be done when community members violate these other laws. Essentially, this remedial rule takes the form of a conditional, and it says that if you commit a crime, then you will be subject to having your liberties restricted in ways to which law abiders are not subject. The question, for present purposes, is whether this rule falls within the scope of the fair play obligation—that is, whether this is a rule with which we can comply, and if so, whether general compliance with it yields significant benefits.
On first blush, it may seem that the suggested rule is not one with which we can comply. Unlike rules such as “don’t commit murder,” the rule instituting punishment may appear less the issuance of a command than an instruction to legal authorities as to what may be done to us if we violate rules of the first type. In Hart’s terminology, the rule of punishment may seem to be a secondary rule, rather than a primary rule, where only primary rules are those with which we may comply. I contend, however, that the rule instituting punishment is not solely (or perhaps centrally) an instruction to legal authorities. A significant element of the institution of punishment is that it communicates to, and indeed imposes obligations on, citizens themselves.
To construe the rule instituting punishment as the response to criminal wrongdoing merely as an instruction to officials, e.g., “punish those who violate criminal statutes,” overlooks an important communicative element of punishment. The institution of punishment communicates to citizens generally that the community not only condemns certain actions as morally wrong, but in fact condemns them so strongly that it is willing to impose hard treatment on those who commit such actions.14 In my view, the central benefit of this threat of hard treatment is its role in reducing the frequency of violations of community members’ security and well-being. The institution of punishment, then, communicates the central importance that the community places on protecting its members. Similarly, it asks its members, as community members, to share in this commitment. And insofar as punishment itself plays a key role in securing these important aims, the community asks its members to comply with this institution.
Still, we might wonder whether—and if so, how—one could comply with the rule instituting punishment? We tend to think of punishment, after all, as coercively imposed on offenders who may be no more than passive recipients. I contend, however, that the rule instituting punishment as a response to crimes is one with which we can comply (or fail to comply). As I have indicated, I believe this rule does communicate to community members, and it is a rule of remediation: It tells us that if we commit some crime, then we should accept being subject to punishment as a response. One way to comply, then, would be to constrain one’s behavior so as to avoid being liable to punishment; another way to comply would be, if one has committed a criminal offense, to accept the prescribed punishment. Conversely, one could fail to comply with this rule by committing a crime and attempting to evade apprehension (and subsequent punishment). In other words, if the rule is stated as the conditional “if you commit a crime, then you are subject to punishment,” then we can comply either by not committing crimes, thus rendering the antecedent false (and the conditional itself trivially true), or by accepting being subject to punishment, so that the consequent (and thus the conditional) is rendered true. Both forms of compliance warrant further explanation.
First, we can comply by not committing crimes. A likely objection here is that when we refrain from committing crimes, we comply not with the proposed rule of punishment (“if you commit a crime, then you are subject to punishment”), but rather with the rule prohibiting the particular crime (e.g., “do not murder”). I offer two responses: In one sense, when we refrain from committing crimes, we always comply with both rules, insofar as we act in accordance with both rules. That is, when a person refrains from committing murder, she complies with the rule that says “do not murder” and also with the remedial rule that says “if you commit a crime, then you are subject to punishment.” She complies with the first straightforwardly, and she complies with the second, as noted above, by falsifying the antecedent and thus rendering the conditional trivially true.
In another sense, whether we can be understood in particular cases as complying with the remedial rule instituting punishment may depend on our reasons for compliance. Duff argues that the criminal law of a liberal polity is best understood as offering moral reasons, not prudential reasons, for compliance. Criminal law in such a community, he writes, portrays “criminal conduct as wrongful in terms of [the community’s] values; and the reasons that citizens have to refrain from such conduct, the reasons to which the law refers and on which it depends, are precisely the moral reasons that make such conduct wrong” (Duff 2001, pp. 78–79). He is right, I believe, to suggest that the criminal law should offer moral reasons. But unlike Duff, I believe the institution of punishment, as a threatened response to violations of the criminal law, often permissibly offers prudential reasons for compliance.15 When we comply with the law because we accept, and share, our community’s moral condemnation of the criminal act, we do not need the threat of punishment to motivate our compliance. But inevitably, there will be times when the moral appeal of the criminal statute itself is not sufficient to motivate us. In these cases, the threat posed by the institution of punishment may provide a prudential incentive to do what the moral reason was not sufficient to persuade us to do. I suggest that in cases when we constrain our behavior to comply with the law not because of the moral reasons offered by the law itself but because of the prudential reason presented by the threat of punishment, we may be said to comply with the remedial rule: if you commit a crime, then you will be subject to punishment.
A second way to comply with the proposed rule is by accepting, if we do commit some crime(s), being subject to punishment. In my view, this rules out attempting to evade apprehension or falsely representing oneself as innocent once one has been apprehended (though it does not prohibit appealing to what one may believe are genuinely mitigating circumstances). In addition, the punishment itself may require an active response from the offender. She may be required, for instance, to pay a fine, to appear for community service, or to meet with her probation officer. And even incarceration may require the offender’s active participation: For instance, courts will in some cases require the convicted person to report to prison on a certain date to serve her term.16 Thus those who commit crimes, although they fail to comply with the particular categorical rules prohibiting the crimes they commit, may still comply with the remedial, conditional rule instituting punishment if they accept being subject to punishment, in ways such as I’ve suggested here.
I conclude, then, that the rule instituting punishment as a response to crimes is one with which we can comply. The second question, then, is whether general compliance with this rule yields significant benefits. I doubt that we receive significant benefit from general compliance of the second sort (accepting punishment if one has committed a crime), for the simple reason that most people do not comply in this second way. That is, those who have committed crimes typically do not accept punishment in ways such as I suggested (although perhaps some, such as already repentant offenders, may do so). Many people do comply, however, in the first way: by not committing crimes. We should ask, then, whether general compliance of this first sort yields significant benefits to community members. If so, then insofar as I reap these benefits of general compliance, I have an obligation of fairness to comply as well.
To deny that general compliance with the rule instituting punishment yields substantial benefits, one would need to demonstrate that the protections afforded to members of the political community by the rule of law would not be significantly undermined if the institution of punishment, as a sanction backing the various prohibitions, were abolished (perhaps to be replaced by some alternative, such as public censure or restitution). Such an argument would thus need to refute the intuitively compelling and widely accepted claim that punishment has a substantial deterrent effect. Engaging with the important empirical debate about whether in fact punishment yields significant deterrent effects is beyond the scope of this paper. I note, however, that if there are no considerable deterrent impacts from maintaining the institution of punishment, then the fair play account I have developed here would be unable to ground its in-principle moral permissibility. This fits with my own intuition, however, as I believe that punishment’s yielding some significant deterrent benefit is a necessary (albeit not sufficient) condition of the institution’s moral permissibility. In what follows, however, I assume (in keeping with the predominant view) that the institution of punishment—or more specifically, general compliance with the rule instituting punishment—does yield significant benefits to members of the political community.17 If this is so, then it appears that this rule falls within the scope of those rules to which the fair play account grounds an obligation of compliance.
If the rule establishing punishment is among those rules with which, according to the fair play account, we are obliged to comply in a mutually beneficial, cooperative social order, then the remainder of my argument for punishment’s in-principle permissibility follows fairly straightforwardly. That is, if, according to considerations of fair play, or reciprocity, each of us has a moral obligation to comply with the rule that says those who violate criminal statutes are subject to punishment, then—insofar as having a moral obligation to X implies not having a moral right not to X—none of us has a moral right not to comply with this rule. Again, compliance with the rule can take either of two forms: On one hand, I can comply by constraining my behavior to avoid violating the law and thus avoid being subject to punishment; on the other hand, if I do violate the law, I can comply by accepting being subject to punishment as the response. Putting these pieces together, it follows that no one has a right not to be subject to punishment if she violates some criminal statute. The practice of punishment, then, is not in principle a violation of criminals’ rights.
To briefly sum up my argument to this point: Punishment is, in principle, morally permissible not because it removes some benefit(s) that an offender unfairly gains in failing to meet her obligation to play by the community’s legal rules; rather, it is permissible because punishment as a response to crime is itself one of the rules with which the offender, like all those who benefit from mutual compliance with the rules, is obliged to comply. My fair play account of punishment just is the fair play account of political obligation, along with the recognition that the rules of punishment are among those rules of the community that, when community members generally comply with them, are mutually beneficial. In section III, I address what I take to be the most powerful objections against the fair play view of political obligation. First, however, in the remainder of this section, I want to consider a number of advantages to my view in comparison with the standard fair play account of punishment.
Most importantly, my view fares better against the two objections to the traditional fair play account of punishment that I discussed earlier. Consider the first objection, that the traditional fair play account misconstrues why certain crimes merit punishment. Murder, that is, does not seem to be centrally, if at all, a crime of free riding on other community members generally. My version of the fair play account, by contrast, grounds only punishment’s in-principle permissibility. It does not follow from my account that fair play considerations also supply the positive aim of punishment; thus my account does not imply, for instance, that the murderer should be punished because she was a free rider on members of the community generally. In my view, the central benefit of the rule establishing punishment is that it gives citizens compelling reasons to comply with the laws—i.e., it acts as a general deterrent—and thus helps to ensure the safety and security of community members. Even if deterrence represents the reason we should want an institution of punishment (i.e., punishment’s positive aim), however, the institution’s in-principle permissibility will stem, on the fair play view, from the fact that an offender (like everyone else) reaps the benefits of deterrence as a result of the general compliance with the rule establishing punishment—thus the offender has an obligation of fairness similarly to comply.
The second objection noted to the traditional articulation of the fair play view is that there seems to be no benefit that an offender unfairly gains, relative to other community members generally, through her commission of a crime. Because the traditional articulation justifies punishment as a means of removing the unfair advantage, the inability to specify such an advantage is obviously problematic. And accounts that have specified some advantage appear to generate counterintuitive sentencing guidance. Again, my account avoids this general line of criticism, as my view does not characterize punishment as removing some unfairly gained advantage. Rather, on this account, punishment is permissible because the practice is among the rules of the cooperative system to which general compliance yields certain benefits—benefits that offenders, like everyone else, enjoy. This fair play account only establishes that, and explains why, punishment is in-principle permissible. It does not claim also to answer the question of what mode and degree of punishment are permissible in particular cases. This latter question will depend on distinct moral considerations.
An implication of my account, then, is that it is appropriate to disaggregate various questions of punishment—in particular, (why) is punishment morally permissible in principle? what is punishment’s positive aim? and what mode and degree of punishment are permissible in particular cases?—and to answer these questions by appeal to distinct considerations. Some may criticize this sort of disaggregation strategy as ad hoc, but on the fair play view I have suggested, this objection is unpersuasive. Again, my fair play account just is the fair play account of political obligation, with the rules of punishment recognized to be among those rules to which the obligation of fairness extends. To require this account to ground not only punishment’s in-principle permissibility but also its positive justification and sentencing guidance would be as implausible as requiring it to ground specific conclusions about the other rules of the cooperative enterprise. We don’t expect that the fair play view should tell us, for instance, which acts should be required or forbidden by criminal statutes. Why then, should we expect the same fair play view to generate rules about punishment? Rather than its being ad hoc to distinguish the in-principle permissibility question from the other questions, on the fair play view we have good reason to expect that the answer to the permissibility question will not yield guidance regarding the other two questions.
As I have discussed, my account avoids what I take to be the two most powerful objections to the standard fair play articulation. More generally, however, my account has an advantage over any fair play account that defends punishment as a sort of appropriate remediation for violations of the fair play obligation to play by the rules of the cooperative venture. Such accounts require two substantial defenses: a defense of the fair play account of political obligation itself, and a defense of punishment as a permissible remediation for failures to meet the obligation defended in the first part. By contrast, once we recognize that the rules of punishment are among those rules to which the obligation of compliance extends, then on my account only one substantial defense is required: a defense of the fair play view of political obligation. My view is in this regard sturdier than standard fair play accounts of punishment, insofar as objections that purport to undermine my view will undermine the standard articulations as well, whereas not all objections faced by the standard articulations also threaten my account.
Essentially, on my fair play account, whether the institution of punishment is in-principle permissible will be determined by whether we have a moral obligation to comply with the rules of our political community. Thus, this defense of punishment will stand or fall according to whether the fair play account of political obligation is persuasive. In the following section, I consider certain objections to my view. I do not aim to provide a full defense of the fair play view of political obligation. I do, however, consider what I take to be among the strongest objections to this broader view, and in particular, their implications for my strategy of including punishment among those rules with which we have a fair play obligation to comply.
The first objection I consider involves my strategy of deriving the moral permissibility of punishment from an account of political obligation. On my account, the rules instituting legal punishment are among those with which we are reciprocally obliged to comply as members of a political community, here characterized as a mutually beneficial, cooperative enterprise. According to the objection, therefore, this strategy implies that punishment would not be morally permissible in the absence of such a political community, viz., in the state of nature. Insofar as we have intuitions that punishment would be morally permissible in the state of nature, then my account appears deficient.18
I actually have mixed intuitions about whether punishment would be permissible in the state of nature. On one hand, I’m somewhat inclined to maintain that punishment would not, perhaps could not, be permissible in such conditions. Those in a state of nature might retaliate against wrongs perpetrated against them, but it’s not clear that harming in this context, even if proportionate to the wrongdoing, would constitute just punishment. Kant, for one, believed that just punishment is impossible in the state of nature, because there is no public authority to settle disputes (c.f., Kant 1996, p. 456).19 If we accept the notion that punishment, to be permissible, must be imposed by a proper authority with standing to settle disputes between opposing parties, then it appears that such punishment is by definition impossible in the state of nature.
On the other hand, it seems that I might permissibly impose intentional harm on someone who has wronged me, even if there is no recognized authority to confirm that punishment in such a case is permissible. If this is true, however, I contend that such punishment would be morally permissible for roughly the same reasons that it is permissible in a political community. In the state of nature, if George steals from Kramer, and Kramer responds not only by retrieving his stolen goods but also by inflicting some sort of harm on George, then presumably this will tend to deter others who might have otherwise considered stealing from Kramer. Conversely, if Kramer didn’t respond, others might take this as evidence that they could get away with similar behavior as George. Furthermore, when Kramer punishes George, seeing this may lead Elaine to think twice not only about stealing from Kramer in the future, but about stealing from anyone. This is because Kramer’s punitive response to George’s stealing may cause Elaine, especially if she has witnessed others responding in similar retaliatory ways in similar circumstances, to believe that this sort of response is the sort that tends to follow attempts at stealing. All of this is just to say that general deterrence would be a significant benefit (arguably the central benefit) of punishing wrongdoing in the state of nature. As noted above, the deterrent effect will be particularly strong if those in the state of nature see wrongdoing meeting with punitive responses with some regularity. That is, if individuals begin to regard it as a sort of informal rule that wrongdoing is met with a punitive response, then they may be persuaded to comply with this rule by constraining their behavior to avoid the punishment. But if such compliance with this informal rule is beneficial to those in the state of nature, then they have an obligation of fair play to comply with it as well, either by appropriately constraining their behavior or by accepting the punitive response when they do engage in wrongdoing.
On the view I have developed here, considerations of fair play could ground the in-principle permissibility of punishment even in the absence of a formal cooperative scheme, such as a political community. Whether it actually did ground punishment’s permissibility would be a matter of whether (a) individuals came to regard it as a sort of informal rule that wrongdoing is met with punishment, (b) recognition of the rule led to general compliance with it (with compliance here taking the form of choosing not to engage in wrongdoing so as to avoid punishment), and (c) general compliance with the rule yielded significant benefits for individuals. Although I have argued that each of these requirements might hold in the state of nature, notice that the existence of a political community governed by the rule of law makes each of them much more likely. In such a political community, the rules of punishment are not merely regularities of behavior that may come to be seen as informal rules; rather, they are set out formally, so that everyone can clearly recognize them as rules of the community. The more clearly individuals recognize the rules, the more likely they will be to comply. The greater the general level of compliance, the greater will be the benefit—i.e., general deterrence—to community members. Finally, the greater the benefit community members enjoy from the compliance of others, the greater their (fair play) obligation is similarly to comply.
So to sum up my response to this first objection, punishment may be in-principle permissible in the state of nature, but if so it will be because of the same considerations of fairness that ground its permissibility in a political community. The fair play obligation to comply with the rules of punishment will be significantly stronger, however, in a political community than in the state of nature, because the benefits yielded by punishment will be comparatively greater in a political community than in the state of nature.
The state-of-nature objection charged that the fair play view is insufficient in that it can only establish punishment’s permissibility in the context of a cooperative social order. A second line of objection contends that, even in the context of such a social order, the fair play view is insufficient in that it can only establish the permissibility of punishing those who benefit from the institution of punishment. The worry here applies to the fair play view of political obligation generally. The objection is that, although the goods yielded by the cooperative social order may be generally beneficial, there may be individuals for whom the costs of compliance with the rules of the scheme outweigh the corresponding benefits. If so, then in such cases considerations of fair play seem ill-suited to ground obligations of compliance. In the context of the rule(s) instituting punishment of crimes, one might object that many criminals do not, all-things-considered, benefit from the existence of such an institution (or, to put it another way, that the costs outweigh the benefits). That is, we might be hard pressed to demonstrate that, say, an individual serving an extended prison term is better off than she would have been had there been no institution of punishment. In the counterfactual case, she might not enjoy the benefits that punishment yields (general deterrence, etc.), but she also would not face the hardships associated with the prison term. Thus on balance, one might argue that she would be better off if there were no institution of punishment.20
Whether an individual being punished would be, on balance, better off in a society with no institution of punishment is an empirical question. It is not obvious to me that she would be better off in such circumstances. On one hand, without the prospect of legal punishment to deter others from committing crimes, the individual’s own safety and security (as well as that of her loved ones) might be significantly jeopardized. On the other hand, if the person herself engaged in wrongdoing against others, the void created by the absence of a legal institution of punishment might be filled by private vengeance. This vengeance might be much more severe than the legal punishment that the offender would face (c.f., Perkins 1970; Locke 1996, pp. 15–16; Hospers 1977, p. 35; and Lacey 1988, p. 184). More importantly, however, as I noted earlier, the rule instituting punishment as the response to crimes is best understood as a conditional: if you commit a crime, then you will be subject to punishment. The rule thus offers individuals not only the benefits of the institution of punishment (in my view, deterrence) but also the opportunity to constrain their behavior so as to avoid punishment. So to the prisoner who claims she has not benefited from the rule instituting punishment, we might reply: “Is it more beneficial (a) that there be a rule that helps protect you and your loved ones by deterring crimes and allows you the opportunity to avoid being punished yourself, or (b) that there be no such rule, so that harms to you and your family may go undeterred, and if you wrong others you will be subject to their vengeance?” If we thus consider the benefits individuals receive from the institution of punishment and the choice each person has to avoid punishment herself, then punishment does appear, on balance, beneficial.21
The previous objection contended that the fair play view is insufficient in that it can only ground the permissibility of punishing those who benefit from the institution of punishment. The final objection I want to consider charges that the fair play view is insufficient in that it can only ground the permissibility of punishing those who accept the benefits of this institution. It has been commonly suggested that my merely receiving benefits from others’ compliance with the rules of a cooperative enterprise is not itself enough to generate obligations on me to reciprocate (see, e.g., Nozick 1974, p. 93). Rather, as A. John Simmons has written, what is required is that I accept these benefits (Simmons 1996). With respect to certain kinds of benefits, which Simmons calls readily available, determining whether we accept them is fairly straightforward—if we seek them out and obtain them, then we have accepted them. For instance, if I request and receive “special protection by the police, if I fear for my life, say, or if I need my house to be watched while I’m away,” this would constitute my acceptance of a readily available benefit. (ibid., p. 77) By contrast, many benefits of membership in a political community are not the sort that we seek out; rather, they are open benefits, which we cannot avoid, except perhaps at great inconvenience. (ibid., p. 76) Examples of open benefits include police protection, national security from external threats, assurance of air- and water-quality standards, etc.
On Simmons’ account, acceptance of an open benefit normally involves “taking the benefit willingly and knowingly,” where this requires, at least, (a) regarding the benefit “as flowing from a cooperative scheme” rather than seeing it “as ‘free’ for the taking,” and (b) thinking that the benefit is “worth the price we must pay for [it],” so that given a choice of taking the benefit and accepting the concurrent burdens or rejecting the benefit, we would take it. (ibid., pp. 77 and 80) These are fairly steep requirements on what counts as acceptance of a benefit. Not surprisingly, he concludes that many, perhaps most, citizens do not meet these criteria for acceptance of benefits. Many do not notice or think much about the benefits they receive from the political order, and many of those who do think about these benefits mistakenly undervalue them relative to the corresponding burdens—thus for Simmons they cannot be said to have accepted the open benefits in the sense necessary to confer political obligation.
It is difficult to imagine what Pickerel could say to the members of X, who have provided him with national defense, in order to justify his unwillingness to cooperate. Because the benefits are indispensable, he could not say that he does not want them. Nor could he distinguish himself from the other X-ites because he has not sought the benefits out. Because of the nature of national defense, none of the X-ites have pursued them. The X-ites can be presumed to differ from Pickerel in their willing acceptance of the scheme’s burdens. But Pickerel’s unwillingness to participate is difficult to defend. Unless there is some morally relevant difference between Pickerel and the members of X, his refusal to cooperate must be interpreted simply as a desire to profit from their labor without doing his fair share, and so as a clear instance of free riding (ibid., p. 42).22
Klosko thus concludes that we may be obliged to comply with rules that provide us with open, indispensable benefits even if we have not accepted these benefits in the sense Simmons requires. Note, however, that on this account, fair play only grounds obligations to comply with the rules that provide open and indispensable benefits.23 The relevant question for present purposes, then, is whether the benefits provided by the institution of punishment are open and indispensable. I contend that they are both. As I indicated earlier, I believe the central benefit of the institution of punishment is that it gives genuine bindingness to the rule of law by providing significant incentives not to violate legal rules (i.e., through general deterrence). In this way, the institution of punishment plays a crucial role in ensuring the security of community members. If I am right, then this seems fairly clearly to be an open benefit. Receiving this benefit does not require actively seeking it, and in fact it’s not clear how we might refuse this benefit.
… but security no human being can possibly do without; on it we depend for all our immunity from evil, and for the whole value of all and every good, beyond the passing moment, since nothing but the gratification of the instant could be of any worth to us, if we could be deprived of anything the next instant by whoever was momentarily stronger than ourselves (Mill 2001, p. 54).24
As Mill recognized, whatever the things are that matter to us—whether these be possessions, projects, relationships, or whatever—these things will typically have value for us insofar as we can be secure in their pursuit or enjoyment. We buy things, and we count on their not being stolen or destroyed by others; we travel, and we count on the fact that those around us will drive responsibly; we work to earn a living, and we count on the fact that our employers will not take advantage of us. The rule of law plays a crucial role in ensuring the security of all community members, and the institution of punishment plays a crucial role in ensuring that the rule of law genuinely binds.25 Thus I conclude that the institution of punishment provides an indispensable open benefit. As such, it grounds a fair play obligation of compliance even for those who have not met Simmons’ standards for acceptance of the benefit.
This is not to say that the institution of punishment will therefore be permissible no matter what punishments it prescribes in particular cases. As I have indicated from the outset, the defense I have offered here is only of punishment’s in-principle moral permissibility. That is, my argument has been that punishment per se, that is, the infliction of harm on criminal wrongdoers, does not in itself constitute a violation of offenders’ rights. Particular instances of punishment, however, may still be morally impermissible in practice if they fail to treat offenders with the respect to which they are entitled as moral persons. Again, I take it that my account is similar in this respect to fair play accounts of political obligation generally. In other words, if considerations of fair play ground an obligation to comply with criminal statutes, this surely is only a presumptive obligation. Such accounts would not ground (nor purport to ground) an absolute obligation of compliance irrespective of the content of the statutes. In fact, any plausible account of political obligation, be it grounded in considerations of fair play, tacit consent, natural duties of justice, or whatever, will allow that in certain cases we may be permitted, perhaps even required, to violate unjust laws (perhaps through civil disobedience, or in extreme cases, even outright revolution). Nevertheless, there is a presumptive moral obligation to comply with a community’s laws—and relevant for present purposes, there is a presumptive moral obligation to comply with the rule according to which one is subject to punishment when one has violated some criminal statute.
In this paper, I have aimed to provide a more plausible version of the fair play justification of punishment, one that follows more straightforwardly from the fair play account of political obligation and also avoids the objections typically leveled against fair play defenses of punishment. The merits of my account could be evaluated in a couple of ways: First, we could ask whether, from within the perspective of the fair play view, my account provides a more plausible route to grounding the permissibility of punishment than do the standard articulations of the view. Second, we could ask whether the fair play view itself is plausible.
Although I am obviously sympathetic to the fair play view itself (that is, to the fair play view of political obligation), I have in this paper offered only a brief defense of this view against what I take to be the most powerful objections raised against it. A full defense of the view is well beyond the scope of this paper. For others who would endorse the fair play account of punishment, however, I suggest that the political obligation question should take center stage. If the fair play view of political obligation can be defended, then the fair play account of punishment follows straightforwardly.
My primary focus in this paper, however, has been with the first point. That is, I contend that my fair play account is more plausible, as a fair play account of punishment, than are standard versions of the view. As I have discussed, my account leads to the implication that the question of punishment’s in-principle permissibility is distinct from the questions of its positive aim and of how to punish in particular cases; answers to these distinct questions will require appeal to distinct moral considerations. Rather than regarding this implication as regrettable, however, I suggest that fair play theorists should embrace it. As I have argued, doing so is not only defensible in its own right, but it also allows the fair play view to avoid a number of unappealing implications.
Throughout this paper, I use “punishment” to refer to the legal institution of punishment. For an interesting discussion of nonlegal instances of punishment, and a critique of accounts (such as mine) that focus on legal punishment, see Zaibert (2006).
Hart writes, “… in relation to any social institution, after stating what general aim or value its maintenance fosters we should enquire whether there are any and if so what principles limiting the unqualified pursuit of that aim or value” (p. 10).
Matravers writes that “punishment theory must concern itself with the morality of attaching the threat of sanctions to rules (as well [as] the morality of imposing those sanctions on particular people). And whilst it seems plausible to 0074hink that the point of threatening sanctions must have something to do with preventing offending …, that is not the same as arguing that preventing offending through the threat and imposing of sanctions is morally permissible” (p. 7). Note also the distinction between the moral permissibility question and the “whom may we punish?” question: The answer to the latter question might be, e.g., “only those culpable for criminal wrongdoing,” but this answer would, in itself, say nothing about why punishment, i.e., the infliction of intentional harm, is a morally permissible response to criminal wrongdoing.
As Morris puts it, punishment “restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting the debt.” (p. 478).
It’s worth distinguishing two types of benefits that are not intended by any of the fair play advocates. First, the benefit gained by an offender is not characterized as a moral benefit. M. Margaret Falls criticizes the fair play view as being incompatible with “the tradition that says willing the moral good is the highest human good and therefore doing evil harms the evildoer” (Falls 1987, p. 31). I think it’s fair to say, however, that the fair play view operates within a tradition that recognizes a distinction between moral and prudential benefit, which believes that the latter does not necessarily collapse into the former, and which holds that an offender gains some prudential benefit through her crime. (Of course, if it’s true that what is prudentially good for us reduces to what is morally good for us, or even if any ostensible prudential benefit a criminal gains would be outweighed by the moral harm so that the criminal should be understood as harming herself all things considered, this will only support my conclusion below: that the fair play view cannot demonstrate an advantage that the criminal unfairly gains over others that is appropriately removed by punishment.) Second, the benefit gained by the criminal is explicitly not characterized as the material spoils of her crime. Thus, the relevant benefit unfairly gained by, say, the burglar is not the actual money or property that she steals, nor is the tax evader’s relevant benefit the tax money she doesn’t pay. If the benefit were characterized as the material gain from the crime, then removing this benefit would seem to be a matter merely of requiring the offender to compensate her victim(s); punishment, understood as the intentional imposition of hard treatment, would not seem necessary. For fair play defenders of punishment, therefore, it is crucial that the unfairly gained benefit is something distinct from the ill-gotten material gains.
As Dagger writes, “there are times for almost all of us when we would like to have the best of both worlds—that is, the freedom we enjoy under the rule of law plus freedom from the burden of obeying laws” (p. 483).
Other attempts have fared no better. George Sher, for instance, offers an alternative account according to which the offender gains freedom not from the burden of self-constraint, but rather “from the demands of the prohibition he violates” (Sher 1989, p. 82). As David Dolinko rightly points out, however, a criminal does not so much gain freedom from a moral prohibition as exhibit a freedom he already had (otherwise he could not have committed the crime), and this freedom is shared by law abiders (Dolinko 1991, p. 547).
The distinction I have in mind here, between undermining fairness and being unfair, is essentially one made by Philip Pettit (2003, p. 97). In discussing the difference between consequentialists and nonconsequentialists, Pettit points out two distinct ways in which we may respond to whatever we value: We may promote it, or we may honor it. What’s more, promoting what we value doesn’t necessarily imply honoring it, and vice versa. The converse is the distinction I have in mind: We may undermine some value, or we may violate it.
Consider, by analogy, which is the greater violation of fair play (i.e., the greater instance of free riding): the citizen who avoids paying taxes but nevertheless reaps benefits from the flourishing tax system, or the citizen who actively works to destroy the institution of taxation itself.
Some have objected that it is acceptance of benefits, not merely receipt of benefits, that can generate a fair play obligation. I consider this objection in section “Objections”.
Examples of secondary rules are “rules of recognition,” which provide some criteria for determining whether purported primary rules are in fact primary rules, i.e., which are legally valid; “rules of change,” which govern the process whereby primary rules may be enacted or repealed; and “rules of adjudication,” which govern the determinations of whether, in particular cases, primary rules have been violated (pp. 94–97).
Hart appears to have disagreed on this point, as he indicates in various passages that, as a conceptual matter, criminal laws must be backed by physical sanctions, i.e., punishment (see, e.g., ibid., pp. 34–35, 86; see also Kelsen 1946, p. 19). If this is right, so that criminal laws without punishment are not really criminal laws, then those who would endorse the abolition of punishment will face the unenviable task of also defending the abolition of criminal laws altogether. As I have indicated, however, I reject the view that criminal law entails punishment. Thus on my view, even if criminal statutes are themselves justified, the proposition that punishment is an appropriate mode of response to violations of these statutes nevertheless requires its own defense. I am grateful to Larry May for raising this point to me.
For discussions of the communicative aspect of punishment, see, e.g., Feinberg (1970), Hampton (1991, 2007), and Duff (1986, 2001). Note that, unlike Hampton and Duff, my view is not that this communicative aspect itself grounds the permissibility of punishment. But I do accept that an aspect of punishment is communicative, and as I discuss, part of this communication is to ask something of all community members, law abiders and offenders alike—viz., that if they don’t comply with the community’s criminal statutes, then they should accept being subject to punishment.
I thank Antony Duff for suggesting this point to me. More generally, I follow Duff in thinking that respect for offenders as autonomous moral agents, and as still members of the political community, requires that we engage them as active participants in their punishment, rather than passive recipients (see, e.g., Duff 1986, 2001).
Although conclusively establishing or disproving a deterrent effect has been a notoriously thorny matter, there is significant empirical evidence supporting the intuitive conclusion that criminal sanctions do have a deterrent effect. For instance, a 1978 panel commissioned by the National Academy of Sciences to review the research on deterrence effects stated, “The evidence certainly favors a proposition supporting deterrence more than it favors one asserting that deterrence is absent” (Blumstein et al.1978, p. 7). Two decades later, one of the report’s co-editors wrote that “the evidence for a substantial deterrent is much firmer than it was fifteen years ago. I now concur … that the collective actions of the criminal justice system exert a very substantial deterrent effect” (Nagin 1998, p. 3).
I thank Christopher Heath Wellman for raising this objection to me.
I am grateful to Victor Tadros for raising this objection to me.
One might press the objection by claiming that surely there may be those—mob bosses or drug lords, for instance—for whom the legal institution of punishment is not, on balance, beneficial. I actually think mob bosses and drug lords do benefit from, and actually depend on, the existence of institutions of law enforcement and punishment to preserve the social order in which they illegally operate. Nevertheless, I concede the general point that if examples can be produced of criminals who cannot be said to benefit from the institution of punishment (yet for whom we nevertheless believe punishment is permissible), then this represents a serious challenge to the fair play account. I submit that proponents of the fair play account of punishment would do well to focus on objections such as this, rather than trying to establish what sort of advantage an offender unfairly gains, relative to other community members, through the commission of her crime. I thank Julia Driver for pressing me on this point.
One might object to Klosko’s claim here by pointing out that a community member could sincerely (albeit unwisely) claim not to want the benefits provided by national defense (or for our purposes, punishment), or at least not to want them enough to make cooperating worthwhile. This is a fair point. As Klosko’s phrase “must be interpreted” indicates, there is an intractable problem in such cases of determining whether the noncooperator is genuine about being willing to forego the benefits. Because the benefits are open and also indispensable to the community generally, there is no practical possibility of withholding the benefits to the noncooperator and thus testing whether her claim is sincere (and of course, it is reasonable to assume that the noncooperator is aware that this is so). Klosko indicates, and I’m inclined to agree, that we thus have good reason in such cases to suspect that the noncooperator’s claim is disingenuous. I recognize, however, that if, despite the epistemic challenge, a noncooperator in such circumstances could be determined to be sincere in her willingness to forego the benefits of the institution of punishment, then the fair play account would be hard-pressed to justify punishment in such a case. As I suggested in response to the previous objection, I believe this is the sort of challenge with which those sympathetic to a fair play defense of punishment should concern themselves, rather than questions surrounding the identification and removal of unfair advantages gained through criminal offenses.
Klosko has argued elsewhere that we nevertheless have political obligations with respect to other rules, and that these obligations are grounded in distinct principles (see Klosko 2005, esp. chap. 5). Analyzing Klosko’s broader account is beyond the scope of this essay.
Similarly, Klosko emphasizes the importance of security in describing “law and order” as “the advantages of a secure, protected environment, which provides one with security of the person and the realistic expectation of similar security in the future that allows one to plan ahead. According to major liberal theorists, e.g., Locke, the absence of law and order in this sense makes life in the state of nature to some degree intolerable.” (Klosko 1992, n30 p. 59).
My claim here rests on two empirical claims, either of which might be challenged. One might contend either that the security of community members does not depend on the rule of law, or alternatively that the rule of law’s bindingness does not depend on the institution of punishment. Thus even if security is understood to be an indispensable benefit, one might argue that punishment is not an indispensable means to achieving that benefit. Arguing for these empirical claims is beyond the scope of this paper, but I concede that if it could be shown convincingly that the security of community members could be ensured as (or more) effectively by means other than a system of laws backed by punishment, then the case I offer here for punishment’s in-principle permissibility would be correspondingly undermined. I am grateful to Antony Duff for pushing me on this point.
I am very grateful to Antony Duff, Larry May, Victor Tadros, Christopher Heath Wellman, David Wood, and an anonymous reviewer at Criminal Law and Philosophy for their helpful comments on earlier drafts of this paper. Also, I presented previous drafts of the paper at the Washington University in St. Louis Political Theory Workshop, February 2010, and at the International Social Philosophy Conference at Ryerson University in July 2010. I thank the faculty members and students who participated in both sessions, especially Nate Adams, David Bauman, James Boettcher, Jeff Brown, Adrienne Davis, Julia Driver, Chad Flanders, Clarissa Hayward, Frank Lovett, Alistair Macleod, Ian MacMullen, Paul Moriarty, David Speetzen, Ron Watson, and Carl Wellman, for their thoughtful questions and suggestions during and after the sessions.