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The Ethical Implications of Proportioning Punishment to Deontological Desert


This article details the degree to which the ideal of punishment proportional to desert forces changes in how we think of deontological morality. More specifically, the proportionality ideal forces us to abandon the simple, text-like view of deontological moral norms, and it forces us to acknowledge that those norms are not uniformly categorical in their force.

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  1. 1.

    This fact about the criminal law might be altered if the fact of legal prohibition could affect the moral obligations of citizens subject to the jurisdiction of such legal prohibitions. In particular, if the enactment of a deontological moral wrong into the special part of the criminal law could transform that deontological obligation into a consequentialist one, then it could be the case that criminal law’s obligations did not share the deontological character of the underlying moral obligation. Two points, however: first, in our (now increasingly accepted) view, laws do not have the capacity to create new, content-independent reasons for action to the citizens subject to them. Heidi Hurd, “Challenging Authority,” Yale Law Journal, Vol. 100 (1991), pp. 1611–1677. They thus can’t alter the character of the underlying moral obligation. Second, criminal law in fact does not purport to alter the deontological character of its norms of prohibition, as is evidenced by its restrictive use of the balance of evils (consequentialist) defense. Laws thus obligate only to the extent that their content accurately duplicates the content of antecedently existing moral norms, which is to say that laws themselves create no new obligations.

  2. 2.

    Bernard Williams, “Utilitarianism–Against,” in J.J.C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973), p. 90.

  3. 3.

    See generally Larry Alexander and Michael Moore, “Deontological Ethics,” Stanford Encyclopedia of Philosophy.

  4. 4.

    Michael Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1996), chs 2–4.

  5. 5.


  6. 6.

    Ibid., pp. 191–193.

  7. 7.

    Michael Moore, “The Specialness of the General Part of the Criminal Law,” in Dennis Baker, ed., The Sanctity of Life (Cambridge: Cambridge University Press, 2013).

  8. 8.


  9. 9.

    Noted in Alexander and Moore, “Deontological Ethics,” supra.

  10. 10.

    Explored briefly in Michael Moore, “The Rationality of Threshold Deontology,” in Heidi Hurd, ed., Moral Puzzles and Legal Perspectives (Cambridge: Cambridge University Press, 2019), pp. 378–380.

  11. 11.

    Heidi Hurd, “What in the World is Wrong?,” Journal of Contemporary Legal Issues, Vol. 5 (1994), pp. 157–215.

  12. 12.

    Both of these versions of the DDE are explored, ibid.

  13. 13.

    Michael Moore, Act and Crime (Oxford: Oxford University Press, 1993).

  14. 14.

    Ibid., pp. 356–359.

  15. 15.

    See Michael Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984. (The seriously mentally ill lack the status as moral agents and accordingly are not the addressees of moral and legal norms.).

  16. 16.

    The findings of this literature are summarized in Michael Moore, “Nothing but a Pack of Neurons: The Responsibility of the Human Machine,” in Bebhinn Donnelly-Lazarov et al., eds., Neurolaw and Responsibility for Action (Cambridge: Cambridge University Press, 2018), pp. 28–70.

  17. 17.

    Michael Moore, Causation and Responsibility (Oxford: Oxford University Press, 2009). This is true even if causation is identified as counterfactual dependence, for necessity also comes in degrees. Ibid.

  18. 18.

    Notice that in multiple defendant co-causer cases of the non-overdetermination kind, this could reduce the responsibility of each co-causing defendant, contrary to present law on the subject.

  19. 19.

    Moore, Act and Crime, supra, pp. 359–365. The older cases are collected in Frank Horack, “The Multiple Consequences of a Single Criminal Act,” Minnesota Law Review, Vol. 21 (1937), pp. 805–822.

  20. 20.

    Said, for example, in the 1962 debate about the so-called “Seattle God Committee,” so named because it ranked would-be recipients of then scarce dialysis machines by their virtue. See Shana Alexander, “They Decide Who Lives, Who Dies: Medical Miracle and a Moral Burden of a Small Committee,” Life Magazine, November 9, 1962, pp. 102–125.

  21. 21.

    Frances Kamm makes this suggestion in the course of recommending that one pay attention to all intuitions in ethics, no matter how small.

  22. 22.

    This seems to have mattered to the U.S. Supreme Court in Godfrey v. Georgia, 446 U.S. 420 (1980).

  23. 23.

    The quote was J.L. Austin’s fetching phrase for the richness of factual variation and its ability to outrun our categorizations. J.L. Austin, “A Plea for Excuses,” Proceedings of the Aristotelian Society, Vol. 56 (1956), pp. 1–30.

  24. 24.

    The catch-all nature of the balance of evils defense is explored in Michael Moore, “Torture and the Balance of Evils,” Israel Law Review, Vol. 23 (1989), pp. 280–344.

  25. 25.

    The idea of lesser net wrongs is explored briefly in ibid., and in Michael Moore, “The Neuroscience of Volitional Excuse,” in Dennis Patterson, ed., Philosophical Foundations of Law and Neuroscience (Oxford: Oxford University Press, 2016). The idea of net wrongs is explored more completely in Tom Hurka, “More Seriously Wrong, More Importantly Right,” Journal of the American Philosophical Association, Vol. [2019], pp. 41–58.

  26. 26.

    Moore, Act and Crime, supra, pp. 356–359.

  27. 27.

    One of us defends these standard (Davidsonian) views of act and event individuation, in Michael Moore, “More on Act and Crime,” University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1749–1840. For defense of the non-standard (Kimian) views of these issues, see Alvin Goldman, “Action and Crime: A Fine-Grained Approach,” University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1563–1586.

  28. 28.

    Heidi Hurd and Michael Moore, “The Hohfeldian Analysis of Rights,” American Journal of Jurisprudence, Vol. 13 (2018), pp. 295–354, at pp. 315–318.

  29. 29.

    Hurd, “What in the World is Wrong?” supra.

  30. 30.

    Representations of events, properties, etc., differ in the modes of their individuation from the modes of individuation of the event, properties, etc., themselves. We ignore these differences here, other than to observe that typically representations of things are more finely individuated than are the things themselves, not less finely individuated.

  31. 31.

    Hurka, “More Seriously Wrong,” supra, at p. 43. Notice that the reasoning of the philosophers Hurka discusses does not proceed from premises about deontological morality specifically. The deontological reasoning to this skeptical conclusion is examined briefly in Alexander and Moore, “Deontological Ethics,” supra.

  32. 32.

    Moore, “The Rationality of Threshold Deontology,” supra, pp. 375–377.

  33. 33.

    Kant actually overstates the point. What Kant said was that it was “inconceivable” that moral obligations could conflict. Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans., Cambridge: Cambridge University Press, 1996), p. 16. The Kantian hyperbole overstates the case. Moral obligations can conflict in three senses:

    (1) Actor X is obligated not to do act type A, and it is not the case that actor X is obligated not to do act type A. (“External contradiction”).

    (2) Actor X is obligated not to do act type A, and actor X is obligated to do act type A. (“Internal contradiction”).

    (3) Actor X is obligated to do act token a and actor X is obligated to do act token b, where X cannot do both a and b. (“Conflict without contradiction”).

    Only (1) is ruled out by standard deductive logic. While (2) is ruled out by standard deontic logic, that logic has many “conceivable” alternatives. (2) and (3) are thus prerequisites for a determinate morality that is fair to its subjects, and in that sense conflict of obligations need to be dealt with, either by regarding conflicting obligations to be prima facie only with differential degrees of stringency, or in some other way.

  34. 34.

    Jean Paul Sartre, “Existentialism is a Humanism,” in Existentialism and Humanism (London: Methuen, 1948).

  35. 35.

    See Hurd and Moore, “The Hohfeldian Analysis of Rights,” supra, at pp. 342–343. Standard deontic logic since Aristotle had made “X is permitted to do A” the contradictory of “X is obligated not to do A.” And unlike Kant’s adherence to the non-contradictory nature of obligation (also part of standard deontic logic), Aristotle’s “oppositions” (in his “square of opposition”) are at the core of even non-standard deontic logics, no matter how minimalist they might be in their commitments.

  36. 36.

    We owe the inclusion of the expanded discussion that follows to questioning by Mitch Berman at the Georgetown Conference at which this paper was first presented.

  37. 37.

    E.g., Michael Moore, “The Strictness of Strict Liability,” Criminal Law and Philosophy, Vol. 12 (2018), pp. 513–529.

  38. 38.

    Thus, for example, we agree with the U.S. Supreme Court’s view that the harm caused to a murder victim’s three year old son by his missing his murdered mother after her death increases the wrongdoer’s blameworthiness irrespective of whether that wrongdoer knew or had reason to know of the likelihood of such harm’s occurrence at the time he killed. Payne v. Tennessee, 501 U.S. 808 (1991).

  39. 39.

    We owe discussion of this point to Larry Alexander at the presentation of this paper at the Georgetown Conference.

  40. 40.

    Moore, “The Rationality of Threshold Deontology,” supra, p. 377.

  41. 41.

    John Rawls, “Two Concepts of Rules,” The Philosophical Review, Vol. 64 (1955), pp. 3–32.

  42. 42.

    Moore, “The Rationality of Threshold Deontology,” supra, p. 377.

  43. 43.

    Moore, Placing Blame, supra pp. 717–719.

  44. 44.

    See generally, Alexander and Moore, “Deontological Ethics,” supra; Moore, “The Rationality of Threshold Deontology,” supra.

  45. 45.

    Larry Alexander, “Deontology at the Threshold,” San Diego Law Review, Vol. 37 (2001), pp. 893–912.

  46. 46.

    Eyal Zamir and Barak Medina, Law, Economics, and Morality (Oxford: Oxford University Press, 2010), pp. 79–104.

  47. 47.

    Alexander and Moore, “Deontological Ethics,” supra.

  48. 48.

    See generally Ulrike Heuer, “The Paradox of Deontology Revisited,” in Mark Timmons, ed., Oxford Studies in Normative Ethics (Oxford: Oxford University Press, 2011), pp. 236–267.

  49. 49.

    Tom Hurka puts this point in his own way, distinguishing and then adopting what he calls the “mixed” view as to how good-making features of action net out against the wrongness of doing such actions; on the mixed view, such features reduce the wrongfulness of the action but not in a manner proportionate to their value in agent-neutral terms. For Hurka as for us, it can thus often be the case that it is categorically wrong to do some act even though that act nets out more good than bad in terms of agent-neutral states of affairs produced or averted. Hurka, “More Seriously Wrong,” supra, pp. 48–51.

  50. 50.

    See Michael Moore, “The Interpretive Turn: A Turn for the Worse?,” Stanford Law Review, Vol. 41 (1989), pp. 871–957, distinguishing these four truly hermeneutic disciplines from the many pretenders to that title in social science such as history.

  51. 51.

    For our rejection of relativistic meta-ethics, see Heidi Hurd, “Relativistic Jurisprudence: Skepticism Founded on Confusion,” Southern California Law Review, Vol. 61 (1988), pp. 1417–1509; Michael Moore, “Moral Reality,” Wisconsin Law Review, Vol. [1982], pp. 1051–1156.

  52. 52.

    Michael Moore, “Good Without God,” in Robert George, ed., Natural Law, Liberalism, and Morality (Oxford: Oxford University Press, 2001).

  53. 53.

    Bernard Williams once chastised one of us for always casting criminal law theory as the receiver of implications from philosophy, not the origin of reverse implications for philosophy. As Williams put it, the subtitle for Moore’s 1993 Act and Crime book should not be as it is, The Implications of the Philosophy of Action for the Criminal Law; rather, according to Williams, “Moore’s subtitle…should read: ‘criminal law and its implications for the philosophy of action.’” Bernard Williams, “The Actus Reus of Dr. Caligari,” University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1661–1674, at p. 1663. It has taken us a while to lay claim to Williams’ two-way street vision of the relationship between criminal law and philosophy, but we are pleased to have arrived there.

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A paper originally scheduled to be given at the Conference on Proportionality Georgetown Institute for Markets and Ethics, Georgetown University Washington, D.C.

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Hurd, H.M., Moore, M.S. The Ethical Implications of Proportioning Punishment to Deontological Desert. Criminal Law, Philosophy 15, 495–514 (2021).

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  • Proportionality
  • Deontology
  • Wrongdoing
  • Culpability
  • Absolutism
  • Threshold-deontology