Abstract
Retributivist approaches to the philosophy of punishment are usually based on certain claims related to moral desert. I focus on one such principle:
Censuring Principle (CP): There is a moral reason to censure guilty wrongdoers aversively.
Principles like CP are often supported by the construction of examples similar to Kant’s ‘desert island’. These are meant to show that there is a reason for state officials to punish deserving wrongdoers, even if none of the familiar goals of punishment, such as deterrence, will be achieved. When suitable variants of such examples are presented, however, it is evident that there cannot be much reason to punish such wrongdoers, even if there is some. The same problem besets claims that there is intrinsic value in the suffering of wrongdoers, or that wrongdoers deserve to suffer. All such claims are relatively weak normatively.
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Notes
Some of the distinctive moral claims of retributivism have recently been affirmed—or at least treated sympathetically—by consequentialists. See, for example, Kagan’s (2012) treatment of the claim that the deserved ill-being of wrongdoers has intrinsic value, a claim some retributivists also affirm, e.g., Moore (1997: 87–88, 160), Berman (2011), Cp. Feldman (2004: 192–197).
Variants of CP might also be proposed. E.g.,
Censuring guilty wrongdoers aversively is prima facie obligatory;
Censuring guilty wrongdoers aversively has intrinsic value.
If other moral claims are used then WPR (and SPR) would need to be slightly rephrased.
Ross (1930: 63–64) says that “directly” the criminal law is a threat to potential criminals, but it is also a promise to various other parties, including the victim. This idea, even if false, might influence people’s reactions to Kant’s example.
See Sher (2006). Sher takes blame to be a set of psychological attitudes that need not be expressed in speech or behavior. Ibid., ch. 6. He grants, though, that expressing these attitudes to a guilty (or blameworthy) wrongdoer may achieve deterrence and reformation. Ibid., 138.
Some philosophers, both consequentialist and non-consequentialist, hold that a virtuous character is intrinsically valuable, and vice intrinsically bad. (Ross 1930: 134–135 (on virtue); Hurka 2001) But even if virtuous character is only instrumentally valuable there could be a moral reason to use punishment to produce it. For discussion of the relevance of these issues to the philosophy of punishment see Sverdlik (2014).
Tadros (2011: 80–82) presents three and four person desert island cases. He constructs his cases differently, since he supposes that it is victim who is seeking to give the person who wronged him what he deserves, and they are underdescribed for my purposes. His focus and conclusion are also different from mine, since he is interested in the legitimacy of the state seeking to give wrongdoers what they deserve.
I have shortened the time between the wrongdoing and the possible response, since a gap of 30 years might lead some people to think that painful censuring is no longer justified. Such people may suppose that there can be questions about whether the person subjected to censure is the same person as the wrongdoer. But we still have to assume that the person censured will not be reformed in any way by the painful censuring, even if his wrongdoing was relatively recent.
Impersonal reasons contrast with considerations of personal well-being, as well as with the ‘personal reasons’ that individual agents have, for example, to object to being unfairly singled out by an institution for more burdens than others must bear. The sorts of impersonal values that Scanlon mentions pertain to the treatment of animals and the natural world, culture, and aesthetics. Scanlon denies that the reasons connected to these values have direct relevance to the morality of ‘what we owe to each other’, although he grants that they are indirectly relevant. I am assuming that desert is relevant to what we have moral reason to do, and, thus to what we owe each other morally, and, in theory, to what the state and state officials may or must do. The question is how strong a moral reason it is. (Cp. Tadros 2011: 80–83).
I have framed the discussion in terms of the strength of the competing moral reasons. But it is interesting to consider the example in terms of moral permissibility. It is plausible to say that it would be wrong for Carol to push the boulder. This is true even though it seems possible to invoke the Doctrine of Double Effect and say that if Carol pushes the boulder with the intention of censuring Hans aversively that Anna’s suffering is only a foreseen consequence.
I am grateful to two referees for posing this question.
A first-person formulation of a desert-island example does not add support to positive retributivism. If anyone thinks that it does, he can imagine that he is Hans, in a variant of The Fugitive on the Island, and that he has undergone a moral transformation. He now feels intense and sincere guilt for what he did. If we also imagine that he sees what pushing the boulder will do to Anna, I submit that he would not believe that Carol has more reason to push it than she does not to do so, or is obligated to push it.
I am indebted to Luke Robinson, Justin Fisher, Philippe Chuard, Sameer Bajaj and some anonymous referees for their helpful comments.
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Sverdlik, S. Giving Wrongdoers What They Deserve. J Ethics 20, 385–399 (2016). https://doi.org/10.1007/s10892-016-9217-x
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DOI: https://doi.org/10.1007/s10892-016-9217-x