Duties, Desert, and the Justification of Punishment

Abstract

In this essay, I assess what I call the “Duty View,” subtly articulated and defended by Victor Tadros in Wrongs and Crimes (Oxford University Press, 2016). According to the Duty View, wrongdoers incur enforceable duties, including the duty to be punished in some circumstances, in virtue of their wrongdoing; therefore, punishment can be justified simply on the ground that wrongdoers’ duties are being legitimately enforced. I argue that, while wrongdoers do incur important duties, these are not necessarily fulfilled by providing protection against future offenses, and I offer a comparative evaluation of the Duty View and an alternative approach, which I call the “Desert Plus View.” The Desert Plus View shares some of the key commitments of the Duty View, such as the rejection of the intrinsic goodness of wrongdoers getting what they deserve. More positively, however, according to the Desert Plus View, the fact that people are deserving can, together with certain additional conditions, such as the need for protection of its citizens, provide a reason for the state to give them what they deserve.

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Notes

  1. 1.

    This is a development and extension of a view Tadros has presented in earlier work. See, for example, Tadros (2011).

  2. 2.

    As a final additional argument (discussed in Sect. 4 below), Tadros offers a further way of extending wrongdoers’ duties of protection that does not rest on victims’ rights or duties.

  3. 3.

    See, for example, Bennett (2002).

  4. 4.

    This case involves two friends, and one might worry that this confounds the case. But I do not believe this is so. If the duties involved are supposed to differ only in relative strength, then as long as we keep fixed that both are friends, and so begin with the same baseline strength, Tadros’ view ought to yield the verdict that Shayna has a more stringent duty to the friend she wronged. Further, though I believe that the case can be varied so as to involve two people, neither of whom are friends of Shayna, such a case is trickier for the very reason that we are supposing in such a case that Shayna has done a lot to make up for the wrong, and this would involve the development of at least some personal relationship, creating an asymmetry between the two potential victims of privacy violation.

  5. 5.

    I note that here and elsewhere Tadros introduces the reasoning by describing it as “one possibility,” which suggests a certain distance from full acceptance of the reasoning (63). But there is no ultimate rejection of the reasoning, and Tadros ultimately seems to accept the conclusions of the reasoning on the grounds he considers (66).

  6. 6.

    An interesting question arises here if one takes it that obligations are specifically to act for certain reasons. If that is correct, then it is doubtful that Amina could fulfill Idris’ obligations by acting against Idris’ wishes. She could do something, perhaps, to negate those obligations, but this is subtly different from actually fulfilling them.

  7. 7.

    See, for example, Nelkin and Rickless (2016).

  8. 8.

    Interestingly, some accounts of the justification of punishment bring the aim of the state closer to what is intuitively the aim of a victim or third party toward a wrongdoer in positing parallels to expressive and communicative aspects of interpersonal blame. I see Tadros here as arguing that a well-recognized state-like function, namely, protection, has its roots in the interpersonal case.

  9. 9.

    This view is similar to the principle that Joel Feinberg calls ‘‘Fault Forfeits First’’ (Feinberg 1970). According to that principle, ‘‘[i]f someone must suffer, it is better, ceteris paribus, that it be the faulty than the meritorious’’ (Feinberg 1970: 218). It is not clear that Feinberg intends ‘‘the faulty’’ to be equated with ‘‘the deserving’’ in the context of his discussion of torts, and in this way his principle is different from the view described in the text. Further, the view I set out is framed in terms of reasons rather than primarily about what it is better to do. But there is a common core idea. Richard Arneson motivates the principle in Arneson (2006, 2017), where he explicitly equates ‘‘fault’’ and ‘‘culpability.’’

  10. 10.

    See Nelkin (2013, 2016, forthcoming).

  11. 11.

    See Nelkin (2016), and Brink and Nelkin (2013).

  12. 12.

    See Tadros (2016), chapter 5.

  13. 13.

    Tadros refers to a set of compatibilist conditions identified by Pereboom in his 4-case Manipulation Argument that include an “in character” condition (David Hume 1739/1978), an identification condition (Frankfurt 1971), a mechanism-based reasons-responsiveness condition (Fischer and Ravizza 1998), a general rational action condition (Wallace 1994), and diachronic conditions allowing for rational revision over time (Mele 1995; Haji 2009). See Pereboom (2014), p. 75 for an overview.

  14. 14.

    See Nelkin (2011) for more direct answers to the skeptic. I note that if this challenge cannot be met, then there are a number of alternative non-desert-based justifications of punishment to consider that avoid the specific objections raised to the Duty View. See, for example, Pereboom (forthcoming).

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Acknowledgements

Many thanks to Derk Pereboom, Massimo Renzo, and Samuel Rickless for very helpful comments on previous versions of this essay.

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Correspondence to Dana Kay Nelkin.

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Nelkin, D.K. Duties, Desert, and the Justification of Punishment. Criminal Law, Philosophy 13, 425–438 (2019). https://doi.org/10.1007/s11572-018-9475-8

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Keywords

  • Punishment
  • Enforceable duty
  • Desert
  • Wrongdoing
  • Responsibility