Caruso and Vilhauer focus on what we subjectively ought to do, and so will I. As already stated, I will ignore the distinction between moral uncertainty and other kinds for the time being. I will thus ignore, for now, the difference between what Brian Hedden  calls subjective ought and super-subjective ought. Whereas the former is merely sensitive to descriptive uncertainty, the latter is sensitive to moral uncertainty as well. If I am a doctor with a seriously ill patient, I might be uncertain of which shot to give her for two different reasons. In the first scenario, drug A will cure her, B kill her, and C improve her condition, but not cure her completely. Although I know that C will improve her, I do not know which of A or B is the cure drug and which is lethal. Objectively, I ought to give her drug A, but subjectively, given my lack of descriptive knowledge, I ought to give her C. In the second scenario, I know what all the drugs do, and I can either prolong her life somewhat or kill her. The patient asks for euthanasia to end her suffering, and as a matter of objective moral fact (let us imagine, purely for the sake of argument) I ought to comply. Nevertheless, I believe that euthanasia is always morally wrong; I super-subjectively ought to abstain.
I will come back to the issue of moral uncertainty later in the paper, but I will ignore this distinction for now, lump all uncertainties together, and simply discuss what people subjectively ought to do.
Still, we are not interested in what people ought to do given whatever irrational beliefs and ideas they might have. Caruso agrees that given certain beliefs held by certain scholars, Harsh Retributivism can be justified, but he argues that they hold these beliefs on irrational, or at least insufficient, grounds and ought to change them. Certainly, legislators and policy makers have a general, standing duty to do their research and deliberate in as impartial a manner as possible before making important decisions.
Is the ‘ought’ we are interested in, then, what an ideal agent would conclude is her duty, if she found herself in circumstances in which she only had access to whatever information actual agents have at their disposal? No, this will not work for our current purposes. Later in the paper, I will delve into the thorny issue of intuitions. A perfectly rational agent would presumably have perfect and consistently truth-tracking intuitions, and furthermore know this. For this reason she would rarely be uncertain about philosophical issues, even if she lacks empirical information. Nevertheless, we are interested in what to do precisely under such uncertainty.
I will therefore discuss ‘subjective ought’ in the sense of what a semi-idealized agent would do: an agent who lacks omniscience and suffers the same informational restrictions as real agents, including less-than-perfect intuitions. While not perfect, she is idealized in the sense that she does not suffer from the biases, prejudices, wishful thinking and general irrationality that real agents do. Furthermore, she knows herself fairly well, and justifiably believes that she does not suffer from any serious bias or the like. She is idealized enough that it no longer makes sense to say “Well, her irrational beliefs do imply that X is right, but this does not mean that she subjectively ought to do X; it simply means she ought to stop being so irrational”. There is an interesting sense in which this agent really ought to do X in case her beliefs (desires, values and so on) imply it.
With this ‘subjective ought’ analysis in place, let us picture a group of people in position to influence the criminal justice system, in a nation which currently has Harsh Retributivism. The details of their position can be worked out in different ways. They might be politicians, members of a law institute, public intellectuals with a lot of clout, etc. There is some controversy about Harsh Retributivism in the public debate; moral responsibility skeptics and others attack it, but it has many defenders as well. Our influencers therefore ponder whether they ought to support Harsh Retributivism or work towards radical reform.Footnote 2, Footnote 3
The influencers’ initial stance, before they begin to seriously deliberate about the matter, is one of support for Harsh Retributivism. They realize that Harsh Retributivism cannot be morally right unless offenders can deserve to be punished for their crimes; i.e., unless desert-entailing moral responsibility exists. The influencers, however, are convinced compatibilists.
Philosophers debate how best to understand the term ‘moral responsibility’; some argue that we can meaningfully distinguish between several different kinds. For instance, Gary Watson popularized the term ‘attributability’, a kind of responsibility concerned with evaluating people on a moral scale; said evaluation need not have any implications for deserved punishment . For the purposes of this paper, I will focus wholly on the desert-entailing kind relevant to debates about retributivism. When people are morally responsible in this sense, it can be morally right to blame or even punish them for wrongful behavior; not because doing so will have good consequences, but merely because they did what they did and deserve some hard treatment for it. The influencers are compatibilists about this kind of moral responsibility, not some watered-down concept.
Caruso (and Waller , to whom he refers) argues that people who believe in moral responsibility do so irrationally, despite the weakness of the arguments in favor of their position. Vilhauer, on the other hand, does not make these assumptions, and neither will I. Instead, I postulate that the influencers did not become compatibilists through irrational, motivated reasoning. They have read the relevant philosophical literature, thought conscientiously about the matter, and carefully weighed the arguments. Furthermore, they know themselves well enough to justifiably believe that they have not engaged in biased, motivated reasoning.Footnote 4 Eventually, they became compatibilists. Let us say they were convinced that John M. Fischer’s brand of moral responsibility compatibilism is, if not 100% true, at least strongly on the right track. Fischer argues that in order to be morally responsible for what she does, an agent must be responsive to and act for reasons [16, 17] (see also Fischer and Ravizza ).Footnote 5 She need not be perfectly rational (if that were the case, no one would be responsible for anything, since no one has perfect rationality), but she must be rational enough. The influencers find it eminently plausible that something along the lines of this non-mysterious psychological capacity grounds moral responsibility. Caruso writes that compatibilists cannot satisfyingly respond to famous incompatibilist arguments, like Pereboom’s four-case manipulation argument [19, 20], van Inwagen’s consequence argument , Galen Strawson’s basic argument [22, 23], and Levy’s luck argument . The influencers disagree. Within the confines of this paper, I can obviously not repeat the relevant debates: two brief examples will have to do. Pereboom’s four-case manipulation argument begins with an agent who is blatantly manipulated into doing what he does, and therefore, Pereboom writes, obviously not morally responsible. Through a series of morally irrelevant changes to the scenario, Pereboom eventually arrives at an ordinary agent in a deterministic universe. Since all the changes were morally irrelevant, Pereboom writes, ordinary agents under determinism lack moral responsibility as well : chapter 4 : chapter 4. He later adds that the argument goes through even if we tweak the scenario to a plausible version of indeterminism, which shows that we lack moral responsibility regardless of whether the universe is deterministic or indeterministic : 83. Michael McKenna objects that we can just as well run the argument in the opposite direction . Start with the ordinary agent, who is surely responsible for what he does, go through the morally irrelevant changes, and conclude that the manipulated agent is actually responsible as well. Let us imagine that the influencers have read the important papers in this debate, thought long and hard about it, and come to side with McKenna. Moving on to the consequence argument, it purports to show that under determinism, no one can do otherwise than they do : 69. Therefore, the moral responsibility skeptic claims, moral responsibility is at the very least incompatible with determinism. However, Harry Frankfurt famously argued that an agent could be morally responsible for what he does even if he lacks the ability to do otherwise . A classic Frankfurt case looks like this: Black and Jones both want Smith dead. Black prefers for someone else to do the dirty work, so unbeknownst to Jones, he implants a device in the latter’s head that allows him to monitor Jones’ thoughts and actions and take control of them if need be. As it happens, Jones murders Smith on his own; Jones is presumably responsible for doing so, even though he could not have done otherwise. The influencers have read the relevant literature in this area as well, thought long and hard, and come to side with Frankfurt and his followers. And so on. Every skeptical argument in the literature has its counter arguments. Whether these are satisfying or not is, of course, a controversial topic (if it were not, we would no longer have a moral responsibility debate, but agreement among the philosophers in this field). But the influencers side with the compatibilists, and not because they suffer from irrationality or distorting biases.
Let us therefore accept that the influencers ought not to abandon compatibilism and instead embrace skepticism, in the here used subjective sense of ‘ought’. However, the influencers need more than compatibilism to justify a continued support of Harsh Retributivism.