Abstract
In a series of recent papers, Saul Smilansky has argued that compatibilists have no principled way of resisting the view that prepunishment is at least sometimes appropriate, thus revealing compatibilism to be a radical position, out of keeping with our ordinary moral judgments. Recent attempts to resist this conclusion seem to have overlooked the biggest problem with Smilansky’s argument, which is this: Smilanksy argues that the most obvious objection to prepunishment—namely, that it is inappropriate because it involves punishing the innocent for crimes they have not committed—is unavailable to compatibilists. If compatibilism is true, he says, then if it is causally determined that someone is going to commit a crime, the fact that one has not yet done so is a mere temporal matter bearing no moral significance. I argue that there is no reason for compatibilists to accept this point. Compatibilists can (and should) resist Smilansky's claim that one’s not yet having committed a crime is morally insignificant and so resist the temptation to prepunish.
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Notes
A referee for this journal points out that, insofar as the phrase ‘S committed C’ is taken to mean that S committed C in the past, D seems to problematically entail that a person who has traveled backward in time after having committed a crime would be undeserving of punishment for that crime since it is one that she committed not in the past but in the future. Here, however, it is helpful to bear in mind a distinction David Lewis (1976) makes between what he calls external time and personal time. According to this distinction, actions performed by a time traveler in the year 2500 (before traveling backward in time to the year 2000) are in 2000 properly said to be actions she performed in her personal past, though they now lie ahead in the external future. D should be read as saying that a person deserves to be punished for a particular crime only if she actually committed that crime in her personal past. When understood in this way, we can see that D avoids carrying with it the implication that a person could escape deserving punishment “simply” by hopping into her time machine. It is perhaps also worth pointing out that, so understood, D (together with R) entails only that it is inappropriate to punish people for crimes committed in their personal pasts, regardless of whether they are in the external past or the external future. Thus, it does not entail the inappropriateness of punishing a person for a crime that, though committed in her personal past, still lies ahead in the external future. Smilansky does not explicitly address this point, but it seems likely that punishment of a person for a crime she committed in her personal past, even if it now lies ahead in the external future, is not the sort of “prepunishment” he has in mind since punishment of this sort neither poses any special problem for compatibilists nor does it seem out of keeping with our ordinary moral judgments.
A referee for this journal resists accepting T on the grounds that “a prepunisher may truly punish someone without treating or regarding her as having committed the crime (as opposed to treating or regarding her as if she will commit the crime).” Now, while it is not possible to mount a formal objection to T along these lines without begging the question, since doing so would presuppose that it is possible to punish a person for a crime without treating or regarding her as having committed the crime, those who share the referee’s intuition could replace T with the following principle:
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(T*)
To punish a person S for a crime C is (at least partly) to treat or regard S as being guilty of C.
Those wishing to adopt this tack will need to supplement it with a principle to the effect that a person S is guilty of a crime C only if S committed C, which, together with T* and A, would entail the inappropriateness of prepunishment.
-
(T*)
References
Beebee, H. (2008). Smilansky’s alleged refutation of compatibilism. Analysis, 68, 258–260.
Kearns, S. (2008). Compatibilism can resist prepunishment: a reply to Smilansky. Analysis, 68, 250–253.
Lewis, D. (1976). The Paradoxes of Time Travel. American Philosophical Quarterly, 13, 145–152.
Smilansky, S. (2007). Determinism and prepunishment: the radical nature of compatibilism. Analysis, 67, 347–349.
Smilansky, S. (2008a). Prepunishment for compatibilists: a reply to Kearns. Analysis, 68, 254–257.
Smilansky, S. (2008b). More prepunishment for compatibilists: a reply to Beebee. Analysis, 68, 260–263.
Acknowledgements
I would like to thank Al Mele and two anonymous referees for this journal for their excellent comments and discussion on earlier versions of this paper. Earlier versions of this paper were also presented at the 2009 Western Conference of the Society of Christian Philosophers, hosted by Fort Lewis College in Durango, Colorado, and at the 2009 Meeting of the Florida Philosophical Association, hosted by Santa Fe College in Gainesville, Florida. I am grateful to the audiences at those presentations, and especially to Kevin McCain, my commentator at the SCP, for their helpful comments.
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Robinson, M. A Compatibilist-Friendly Rejection of Prepunishment. Philosophia 38, 589–594 (2010). https://doi.org/10.1007/s11406-009-9236-y
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DOI: https://doi.org/10.1007/s11406-009-9236-y