Abstract
Causal determinism may appear more salient when informed by empirical science. Thus even if neuroscience brings nothing substantially new to the debate on free will and human agency, it may enforce a call for revision of moral and legal practices. If our moral agency is a result of causal luck, desert-based moral practices seem unwarranted. A current trend in compatibilism agrees with the Strawsonian approach to moral responsibility in rejecting radical revisionism, but supplies the Strawsonian approach with a contractualist normative foundation. This paper argues that the contractual justification for desert-based moral practices fits well with a communicative theory of punishment. It is argued, however, that while a contractual communicative view on punishment may require some forms of hard treatment, it is unlikely that it will warrant extremely severe treatment. Hence determinism calls for a weak to moderate revision of our punitive practices insofar as these at present impose extreme suffering.
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Notes
- 1.
Pereboom himself takes it that we cannot have this kind of responsibility under determinism. To him, full moral responsibility requires ultimate control.
- 2.
The “contractualism” I am referring to here is of a Scanlonian kind (Scanlon 2003). It is thus constrained by some normative notions such as fairness and reasonableness. It is not a rationality-based contractualism like Rawls’ Original Position, according to which contractors are guided by enlightened self-interest in ignorance of their position in society.
- 3.
As expounded in the quote from Galen Strawson above.
- 4.
Not necessarily in terms of the Principle of Alternative Possibilities, but at least in terms of having ultimate control over one’s actions by having chosen to be the person who acts in the way one does. Cf. Galen Strawson’s Basic Argument (2003).
- 5.
When I introduce the metaphor of the Veil of Ignorance, this is not intended to be a shift to a Rawlsian situation of choice, but aims merely to illustrate the radical character of the requirement that we should place ourselves at the receiving end of the principles we hold, in order to determine whether they are acceptable.
- 6.
I assume that everything argued in this paper is compatible with even the strongest possible threat from neuroscientifically informed determinism; what may be roughly labeled as the No-Action-Thesis (Morse 2004). Should it turn out to be true that conscious willing is in fact an illusion; i.e. that we merely feel like agents (Wegner 2002), we can still want to be treated as the agents we feel like being. Illusionism is fully compatible with a contract-based justification for desert and a communicative theory of punishment; insofar as it is unavoidable to maintain a pragmatically meaningful notion of “intent”, and insofar as our agency – illusory or not – matters to us. Of course, the argument requires that we are reason-responsive, but even illusionists about conscious willing have to admit that we are reason-responsive at some level, if they are to argue that punishment could work as a deterrent. (Indeed if they are to argue at all without performative contradiction).
- 7.
It could be objected that the kind of determinism which is presupposed here undermines the distinction between intrinsic and extrinsic features, because if true, all features are in the relevant sense extrinsic. But we do not need to do away with the distinction. Consider for example Neil Levy’s argument that even if we do not make conscious decisions, “the mechanisms that make the decisions are … ours; they have our values, our beliefs, our goals (we have them by them having them) and when they decide, we decide.” (Levy 2007:243). Those causal forces that are me, then, are intrinsic features that may be distinguished from causal forces operating outside of me (our outside of my consciousness) and which cannot be attributed to me as a person.
- 8.
Whether actually expressing blame is appropriate will depend on other factors as well.
- 9.
- 10.
Note that nothing I say in favour of a communicative justification of punishment with reference to desert is intended to set aside the need for protecting society from dangerous offenders. Should the offender be dangerous, he might have to be detained, but the justification for that could be of a different kind – protection of community, not punishment – and should, if so, only be used to the extent necessary for this purpose, and under as humane conditions as possible. For example, we already detain dangerous psychotics, but we do not punish them. The need for protection may come in addition to the retributive element in an expressive or communicative theory, but with a different and not necessarily punitive justification. The question is how much of the material component of imposing suffering can be put into the punishment itself, and how much is left to be justified in terms of protection.
- 11.
Here both Scanlon and Rawls differ from a classical contractarian like Hobbes. To Hobbes, the value above all values is security, whereas to contemporary contractualists, e.g. justice, freedom and autonomy are rated higher, and thus different justifications are yielded.
- 12.
Confer Rawls (1999a).
- 13.
Further, as an anonymous referee has pointed out, an accusation of begging the question could be made against baking into the contract the values that are supposed to be justified by the contract. But it is not question-begging if the assumption about people’s reluctance to being treated as means is a psychological rather than a moral one. Contractors choose moral principles on the basis of some commonalities in human psychology. What these commonalities are is of course ultimately an empirical question which cannot be settled here, but again, that it matters to most of us to be treated as somehow “end’s in ourselves” is not an implausible assumption.
- 14.
I say “can be” because arguably, there are forms of rehabilitation that may entail using people as mere means. Cf. Stanley Kubrick’s film “A Clockwork Orange”.
- 15.
I owe this point to Kasper Lippert-Rasmussen.
- 16.
Given this idea, we could arguably be compelled to choose the principles of criminal justice on the same basis as we choose our principles for distributive justice, which entails choosing a scheme for criminal justice which distributes burdens according to the principles that would be most beneficial to those who are the worse off in virtue of bad causal luck. On this interpretation and in the present context, the worse off are those who end up as criminals. However, there is an important difference between criminal justice and distributive justice which does not warrant treating them on the same scale, even if we accept the intuition underlying luck egalitarianism as generally sound. Criminal justice is about creating (new) burdens, not distributing already existing burdens. The burdens created by criminal justice do not exist prior to the institutions which create them, and they need not be created at all. So from the idea that when we distribute existing burdens people should only be made to carry the burdens which result from their voluntary choices, nothing follows with regard to how we should distribute the burdens we create; or to whether we should create them at all. The rationale for criminal justice is thus different from the rationale for distributive justice. (I owe this point to Jakob Elster). I hold on to this thought even if it could be argued, as pointed out by an anonymous referee, that criminals do create burdens (directly and indirectly) and therefore, punishing them is a way of redistributing the burdens they have created. I read this objection as a version of the “Removal of Unfair Advantage” justification of punishment. While the theory bears with it some interesting challenges, it has been vastly criticised – in my view correctly – for giving a distorted picture of what makes crimes wrongs. “The criminal wrongfulness of rape, for instance, in virtue of which it merits punishment, does not consist in taking an unfair advantage over all those who obey the law” (Duff 2001:23). True, there may be types of crimes where unfair advantage is an appropriate explanation of their wrongness, but these will typically not be the kinds that are mala in se, with which I am mainly concerned here. In any event, creating a new burden (punishment) does not nullify the original burden (the crime), it adds another.
- 17.
Of course, he will have violated a legal rule, which provides a reason to punish him, but we do not primarily want to communicate that he has violated a regulation; we want to communicate that he has violated his victim. The legal prohibition against rape is after all there because rape is wrong, and it is wrong independent of the law.
- 18.
I owe this point to an anonymous referee.
- 19.
If the norms were completely internalized, it could of course be the case that symbolic punishment worked without social shaming. But in one important sense, this would not be punishment at all, but rather some form of self-reproach.
- 20.
That said, this form of punishment is not ruled out by anything I say here. All I am saying is that hard treatment is a necessary component for punishment to be justified, not that the form of punishment needs to be imprisonment.
- 21.
I am assuming that it matters to people to be regarded as agents, even if they are not to take into account what kinds of agents they are, and thus that the principles guiding society should reflect this interest in being treated as agents. This calls for a distinction between mens rea crimes and strict liability crimes, where the latter does not involve any agency control but more, and external, luck.
- 22.
It could be objected that if the punishment for drunk driving was death, the punishment for murder could be torture + death (I owe this point to Kasper Lippert-Rasmussen). But this seems to violate the proportionality principle as well. i.e. “A head for an eye” seems disproportionate in cardinal terms, as discussed below.
- 23.
There are of course many countries that do practice severe punishments for minor crimes; e.g. Singapore, where people suffer imprisonment for littering the streets. I owe this point to an anonymous referee.
- 24.
I owe this point to Jakob Elster.
- 25.
It can be objected, as an anonymous referee has, that if contractors who behind the veil do accept a crime-preventing system of hard punishment, it is reasonable to expect them to accept such punishment if they turn out to be offenders. But again, there are certain constraints on the contract: not every conceivable agreement is reasonable. Acceptability is not entailed by agreement – it is entailed by reasonable agreement. There are some independent standards determining what the contractors may agree on. Unreasonable agreement may display a failure to take into account the point of view of those subjected to the rules. What I am suggesting is that if the people behind the veil truly take into account that it is ultimately just a matter of luck who ends up as criminals, they might consider that if they were in those unlucky shoes, they would want to be given a second chance. Combined with an interest in being treated as agents in relation to those actions over which they do exercise some control (and not in relation to what merely happens, i.e. outcomes of moral luck), this starting point sustains the distinction between mens rea crimes and strict liability offences, while at the same time it should also yield a more forgiving attitude towards the former. Of course, if the contractors are Hobbesian in the sense that their only concern is security, then the picture may look very different, but Hobbesian rationality arguably does not give a plausible account of human psychology.
- 26.
I owe this point to Kasper Lippert-Rasmussen.
- 27.
I say “if” because there is still considerable leeway for judges and juries to exercise judgment in individual cases.
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Acknowledgments
I want in particular to thank Jakob Elster, Vidar Halvorsen, Kasper Lippert-Rasmussen and an anonymous referee for helpful discussion and useful criticisms during the process of writing this paper. Thanks also to participants at the conference “Moral Responsibility: Neuroscience, Organization & Engineering” at TU Delft, August 24–27 2009, and to Nicole Vincent for opportunity and support.
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Bomann-Larsen, L. (2011). Communicative Revisionism. In: Vincent, N., van de Poel, I., van den Hoven, J. (eds) Moral Responsibility. Library of Ethics and Applied Philosophy, vol 27. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1878-4_9
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