The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the “using persons as mere means” objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a “hypothetical consent” justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance.
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Some writers use these terms differently, but this is how I will use them here. (In particular, some writers refer to what I am calling retributivism as "pure retributivism".)
There are some senses of "moral responsibility" on which the truth of the claim that some human beings are morally responsible is uncontroversially compatible with the truth of determinism. Philosophers who endorse free will skepticism of the kind I address in this paper have no reason to doubt that we are morally responsible in these senses, but these senses are not sufficient to justify retribution. For example, Schlick (1939) and Smart (1961) hold that someone is morally responsible just in case praising, blaming, rewarding, or punishing him for his actions has good effects on his future actions or the future actions of others. Determinism would pose no problem for this consequentialist sense of moral responsibility, but it is not the sort needed to justify retribution—it is in fact fundamentally opposed to retributivism (see the main text below). The sense of moral responsibility which Scanlon explains in terms of "answerability", which has to do with explaining one's actions in terms of reasons one endorses, can be similarly untroubled by determinism (see e.g. Scanlon 1998). This sort of moral responsibility may be necessary for retributive justification, but it is not sufficient. The sort of moral responsibility that is arguably incompatible with determinism, which is at issue in this paper, is necessary too. (Thanks to Derk Pereboom for suggesting these points.)
For more on these problems (see e.g. Smilansky 1990; Primoratz 1999, Chaps. 2–3; Ten 1987; Hart 1968, Chaps. 1–2). Some have argued that these are not really problems for utilitarianism—that if these punishments truly reduce overall suffering most, then they are just. (See e.g. Smart 1973.) I think this is a mistake.
Kant raises this objection in The Metaphysics of Morals (1996, p. 105, 6:331 by Akademie pagination).
See Clark (2004) for a helpful discussion of Kant's retributivism and resources in Kant's ethics for a non-retributive approach to punishment. As I will discuss later, however, what Clark means by "non-retributive" is still too retributive for free will skeptics.
Kant himself suggests an account along these lines at some points, but he also suggests a hypothetical consent account (discussed in the main text just below). See Scheid (1983) for a helpful discussion of both these threads in Kant's remarks on punishment.
I do not mean to claim that facts about hypothetical consent have no basis in the actual world. Presumably facts about what agents would consent to if they thought rationally about things have some basis in what agents are actually like.
Some of the remarks in this section also appear in Vilhauer (2009a). In that paper, I discuss free will skepticism and personhood-based desert, but not in the context of punishment. I repeat these remarks here in order to show how the ideas in that paper can be applied to punishment. Also see Footnote 13.
Fred Feldman discusses this point, but not in the context of free will skepticism (Feldman 1995).
A few of the remarks about original position deliberation in this section also appear in Vilhauer (2009a), which does not concern punishment. Also see Footnote 9 above. I do not want to claim that the only way to unpack the idea of personhood-based desert is in terms of original position deliberation. But it seems to be a reasonable way to proceed. For a different perspective on skepticism about desert which is also broadly Rawlsian see Kelly (2002, 2009).
See e.g. Sect. 17 of A Theory of Justice (Rawls 1999).
I think that the terminology of desert is better than the terminology of entitlement for the personhood-based claims at issue here. "Entitlement" is sometimes used for claims that are in a deep sense morally arbitrary but still legitimately enforceable in a shallow sense. (For example, some ethicists might say that a wealthy farmer could be entitled to all the food grown on his lands even if his field hands were malnourished.) But the personhood-based claims at issue here are in no sense morally arbitrary.
This asymmetry has been discussed recently in separate papers by Smilansky (2006), Mills (2004), Moriarity (2003), and Scheffler (2000). Scheffler gives a qualified defense of the asymmetry. Moriarity and Mills reject it, but they think this means Rawls’ critique of desert should be rejected in the case of distributive justice, rather than extended to punishment, which is the strategy advocated here. Smilansky offers an interesting account of the asymmetry which turns on the notion that almost all of us can control our actions in the way necessary to become fully deserving of the best treatment the criminal justice system has to offer (i.e. not punishing us), but few of us can control our actions in the way necessary to become fully deserving of the best treatment the distributive justice system has to offer (i.e. placing us among the richest). This view may fit what we might call non-skeptical intuitions about the scope of our control, but it is ruled out by free will skepticism.
This is of course not Rawls' preferred approach—his "difference principle" implies that inequality is to be preferred insofar as it makes the poorest richer.
It may be objected that deterrents can play no role in a free will skeptic's justification of punishment. That is, it may be thought that if a potential murderer who lacks free will refrains from murdering, then this action was inevitable, and he could not help but act in this way, so the presence of a deterrent can do nothing to explain his action. But this is mistaken. Suppose that the potential murderer has no free will because he inhabits a deterministic world. The deterrent may nonetheless be an indispensible part of the deterministic causal explanation of why he refrains from murdering. That is, it may be that if not for the deterrent, then he would have murdered. If this is true, then in an alternative possible deterministic world which contains a psychologically indistinguishable potential murderer, and which differs from the actual world only in that it lacks the deterrent, that potential murderer does in fact murder. In other words, we must not confuse determinism with fatalism. (Thanks to Saul Smilansky for suggesting a clarification of this point.)
It can initially sound counterintuitive to claim that it could ever be morally unobjectionable to use someone as a means, but the notion that we can legitimately use people as means is a central idea in Kantian ethics, both in Kant's own texts and in contemporary ethics literature inspired by Kant. Consider Onora O'Neill's often-cited example about interacting with a bank teller. One uses the bank teller as a means to the end of dealing with one's money, but one does not thereby use him as a mere means, because it is rational for him to consent to being used in this way (O'Neill 1989, 114). Whenever we achieve an end with the help of another we use that other person as a means. If it were not possible to use others as means without using them as mere means, then it would not be possible for autonomous individuals to interact. (Thanks to Derk Pereboom for a comment that prompted clarification of this point.)
Original position deliberation presupposes that one will find oneself among the living when the veil of ignorance is raised, so if murder victims can benefit from the punishment of their murderers, original position deliberation is committed to the view that this interest is not relevant for choosing the basic principles of society.
Negative retributivism is the view that retributivism's only role in justifying punishment is to provide an account of what means we are permitted to take to the end of harm reduction.
I discuss the reasonable doubt standard in more detail in Vilhauer (2009b).
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Thanks to Saul Smilansky, Derk Pereboom, Joe Keim Campbell, Jeff Murphy, Erin Kelly, Kadri Vihvelin, Chad Flanders, Zac Cogley, and the editor and reviewer at Philosophical Studies for helpful comments on this paper or the ideas it presents. This research was supported in part by a summer grant from the Research Center for the Humanities and Social Sciences at William Paterson University of New Jersey.
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Vilhauer, B. Persons, punishment, and free will skepticism. Philos Stud 162, 143–163 (2013). https://doi.org/10.1007/s11098-011-9752-z
- Free will
- Free will skepticism
- Moral responsibility
- Due process
- Original position