Abstract
Fair play theories of punishment locate the permissibility or desirability of legal punishment in its ability to restore relations of fairness between lawbreakers and other members of society. This chapter discusses the chief objection leveled against such views, which is that many crimes do not yield any benefit for the offender and thus do not create unfair advantages of the sort punishment is supposedly to correct. Duus-Otterström argues that, while this objection squarely hits traditional versions of the fair play theory that emphasize benefits deriving from committing crime, it is less persuasive against versions that emphasize losses inflicted by crime or the offender’s lack of entitlement to the benefits of the legal order.
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Notes
- 1.
The fair play theory of political obligation holds that the moral duty of citizens to obey the law stems from the expectation that mutually beneficial compliance be repaid in kind. The theory was set out in systematic form by Hart (1955) and Rawls (1999). Its contemporary defenders include Klosko (2004, 2005) and Dagger (2018). For criticism, see, e.g., Simmons (2001, chs. 1–2) and Wellman (2001).
- 2.
- 3.
The main aim of Morris’s (1968) essay is to defend punishment over the “therapy model” as an institution of social control. Morris’s argument is that punishment, unlike the therapy model, respects persons as autonomous agents.
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A corollary of this is that, if all people were to break a law, then it would not be justified to punish someone for breaking it. This is because breaking the law would not produce an unfair advantage.
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In the social sciences, however, it is common to argue that “punishment” (here understood as the imposition of a cost) is essential for solving public goods problems since it assures people that they will not be rendered “suckers” by contributing to collective action. For a classical statement of this kind of view, see Runge (1984).
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There are some doubts about whether fair play retributivism is about desert as much as it is about paying debts (Boonin 2008, 122). I shall not delve into this debate here, but since the fair play theory holds that lawbreakers commit a moral wrong, it has no apparent problem in saying that lawbreakers deserve punishment in a familiar sense of “deserves” (e.g., that it would be impersonally and non-instrumentally good or just to punish them).
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Moore is alive to the political questions (1997, 739–95).
- 8.
That political legitimacy might be a precondition for justified punishment has been explored with particular clarity in the debate about moral standing. See Duff (2001, 179–96) and Tadros (2009) for influential treatments. For examples of penal theories that do not vest any fundamental importance in political legitimacy, see Thorburn (2012) and Duus-Otterström and Kelly (2019).
- 9.
The no-benefit objection is my way of crystallizing a worry many people have had about the fair play theory (e.g., Burgh 1982; Dolinko 1991; Hampton 1991; Duff 2008). I state it more fully in Duus-Otterström (2017); see also Falls (1987). Note that “benefit” is vague between “being better off than before” and “being better off than otherwise.” I stay neutral between these two uses here. Note also that “benefit” and “better off” can come apart insofar as a person can be rendered better off than others (i.e., gain a relative advantage) despite having gained no absolute benefit. I return to this below when I discuss loss-based versions of the fair play theory. Critics of the fair play theory have generally been unclear about whether their point is that lawbreakers have not benefited in an absolute sense or have not been rendered better off than others.
- 10.
For a discussion of whether we need fair play to account for the wrongness of a crime like tax evasion, see Dagger (2018, 150–55).
- 11.
This objection can also be raised in a moralized way. The objection would then be that it would be inappropriate to locate an offender’s desert in others’ grudging compliance with moral duties (Duff 2008, 279). The non-moralized version of this objection is clearly better, as it is plausible that morally abhorrent crimes would be unfair, in the sense of free riding on a mutually beneficial system of cooperation, if most people were tempted to commit such crimes. For a defense of treating fair play obligations in a non-moralized way, see Simmons (2001, 6–11) and Duus-Otterström (2021).
- 12.
Dagger offers two reasons why different crimes can be differently unfair even though one embraces the general compliance response. First, crimes can leave victims unequally able to participate in social cooperation. As he writes,
the tax evader takes unfair advantage of many people, but her offense typically does not make it difficult for them to continue doing their part in the cooperative practice. With the rapist, the murderer, and the batterer, however, the offender has done something that makes it difficult or even impossible for his victim to contribute further to the ongoing cooperative endeavour. (2018, 192)
Second, the need to preserve social cooperation requires tracking the members’ opinions about which crimes are worse than others (194). Dagger is here arguably guilty of equivocating between the unfairness of a crime and the extent to which the crime is a threat to a society guided by the principle of fair play, but even if we let this slide, the reasons he offers raise questions. For example, it seems strained to say that murdering someone is an especially flagrant violation of fair play because it means that the victim cannot contribute at all to social cooperation moving forward. I generally doubt that our intuitive sense of criminal seriousness will track how unable people would be to participate in reciprocal exchanges. As for the idea that social cooperation requires empirical legitimacy to sustain it, this is no doubt true, but this is an indirect and contingent way of connecting fair-play considerations and sentencing.
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- 14.
“Leveling down” refers to the idea of making an outcome or distribution equal merely by reducing the position of the better off. For a valuable discussion, see Temkin (2003).
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McDermott (2001) arguably goes too far, though, since he comes perilously close to saying that material goods (being “categorically” different from the moral good of respectful treatment) can never correct the distinctive loss inflicted by crime. This would be too strong considering that fines can be punishments even though they go after the perpetrator’s money. However, this does not change the crucial point that compensation via rights-respecting treatment is often impossible, for if the distinctive loss of crime is that one is not treated as a person, then it seems that the only way this loss could be compensated would be for the victim to be treated as more than a person for a period. But the idea of treating someone as more than a person, if it is even desirable, is incoherent insofar as our rights are satiable. For example, once a person’s right to bodily integrity is respected, no more bodily integrity can be gained; there is no “extra” bodily integrity to dole out.
- 17.
Westen (2016) also claims that this is the point Morris had in mind, although Westen admits that Morris stated his view so vaguely that the door was opened to other interpretations.
- 18.
Thomas Hobbes famously argued that life in the state of nature (a pre-societal condition without overarching political authorities) would be plagued by war and be “solitary, poor, nasty, brutish, and short” (1996, 89).
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- 20.
I am grateful for written feedback from Peter Chau, William Bülow, Peter Westen, and Zachary Hoskins.
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Duus-Otterström, G. (2023). Fair Play Theories of Punishment. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_13
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