Abstract
In his penetrating book on the criminal culpability of children, Gideon Yaffe advances a novel theory of desert. According to the theory, the punishment you deserve for committing a given crime is the punishment the prospect of which would have led you to deliberate correctly about how to act, had that punishment been presented to you beforehand as an inevitable consequence of your committing the crime. Although fascinating and ambitious, Yaffe’s theory of desert struggles as an account of who deserves what, and it falls short of explaining why and how desert is normatively significant—why and how desert matters.
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Notes
“In the context of criminal law,” Yaffe explains, “the ideal agent is the agent who has modes of recognition and weighing of reasons thanks to which he grants as much reason-giving weight to the relevant features as is necessary for the act of refraining from [a given crime] to be more supported by reasons than the [crime itself is]” (2018: 108).
In the passage quoted above, Yaffe advances a theory of non-comparative desert, a theory of what it is for a given punishment to be deserved outright, as opposed to deserved more or less than some other punishment. When he formulates the theory more formally, the thesis he articulates is about comparative desert, about what it is for one punishment to be more deserved than another. The more formal thesis, which Yaffe calls “Desert as Isomorphism in the Space of Reasons,” is this: “For C-ing, D deserves P1 more than P2 if and only if The form of rational support, relative to the ideal agent, enjoyed by C is more similar in relevant respects to the form of rational support, relative to D, enjoyed by C&P1 than that enjoyed, relative to D, by C&P2” (2018: 102). Put differently, D deserves P1 for C-ing more than D deserves P2 for C-ing if and only if, as between the two punishments, threatening D beforehand with the certainty of P1 would have done a better job of getting D to reason properly about whether to C than threatening D with the certainty of P2 would have done. Yaffe does not argue for a corresponding thesis about non-comparative desert, about what it is for a given punishment to be deserved outright. But the passage I quoted at the beginning makes clear that Yaffe envisions his corrective theory as encompassing comparative and non-comparative desert alike. Moreover, Yaffe elsewhere asserts a version of the corrective theory that is straightforwardly non-comparative (e.g., 2018: 153). The non-comparative version of the theory holds that D deserves P for C-ing if and only if threatening D with the certainty of P would have caused D to assess the reasonableness of C-ing the way an ideal agent assesses its reasonableness absent a threat of punishment.
The non-comparative thesis is my principal target in this essay. The non-comparative thesis speaks more directly to the question of what wrongdoers deserve, and it is probably sound if the comparative thesis is. Yaffe acknowledges the connection himself:
[T]o say that P1 is deserved, period, and not just more deserved than something else, is to say that the very same relation is to be found between P1 and C that we find more of when we find that P1 is more deserved for C than P2 is. This is just to say that the concept of non-comparative desert functions like any threshold concept. To be tall is to be taller than a person who is at a certain height threshold. For a form of treatment in response to wrongdoing to be deserved is for it to be more deserved than a form of treatment at a certain threshold. (2018: 102)
In other words, if P1’s being more deserved than P2 is a matter of D’s rational assessment of C&P1 being more similar to the ideal agent’s rational assessment of C than D’s rational assessment of C&P2 is, then it stands to reason that P’s being deserved outright is a matter of D’s rational assessment of C&P being similar enough to the ideal agent’s rational assessment of C—the degree of similarity having exceeded some threshold. Specifying that threshold is a difficult task. It is a task Yaffe does not undertake (2018: 101), as his aim is to show that children deserve less punishment than adults do, not to show just how much (or how little) punishment children deserve outright.
For more on these issues, see the discussion of desert’s “normative force” in Berman 2013.
I am grateful to Mitch Berman for comments on a draft of this essay.
References
Berman, Mitchell N. 2013. Rehabilitating retributivism. Law and Philosophy 32: 83–108.
Davis, Michael. 1986. Harm and retribution. Philosophy & Public Affairs 15: 236–266.
von Hirsch, Andrew. 1993. Censure and sanctions. Oxford: Clarendon Press.
Yaffe, Gideon. 2018. The age of culpability: children and the nature of criminal responsibility. Oxford: Oxford University Press.
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Mendlow, G.S. Demystifying Desert. J Ethics 24, 287–294 (2020). https://doi.org/10.1007/s10892-020-09334-2
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DOI: https://doi.org/10.1007/s10892-020-09334-2