Abstract
In The Ends of Harm Victor Tadros develops an alternative to consequentialist, and non-consequentialist retributivist, accounts of the justifiability of punishment: the duty view. Crucial to this view is the claim that wrongdoers incur an enforceable duty to remedy their wrongs. They cannot undo them, but they can do something that is almost as good—namely, by submitting to appropriate punishment, which will deter potential wrongdoers in the future, reduce their victim’s risk of suffering similar wrongs again. Admittedly, this involves harming wrongdoers as a means to an end, but according to Tadros the ‘means principle’ that we should not harm others as a means, properly construed, does not apply to cases where the victim has an enforceable duty to bear the kind of harm that he or she is being made to suffer. In this article, I shall express reservations about Tadros’ defense and interpretation of the means principle. In presenting his position, Tadros also sets out some interesting anti-retributivist considerations casting doubt on the idea that wrongdoers’ suffering is non-instrumentally good. I shall challenge these. Finally, I shall suggest that the duty view may have counterintuitive implications in relation to wrongs where the offender helps to lower the risk that victims will be subjected to similar wrongs in ways other than by being punished.
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Notes
I say ‘standard forms’, because, among other things, consequentialists can be retributivists, i.e., you can consistently think that one ought to maximize moral goodness, that ‘the suffering of wrongdoers is intrinsically valuable’ (Tadros 2011: 35), and that, for this reason among others, state punishment of wrongdoers maximizes moral goodness.
It is unclear to me exactly how Tadros develops the additional considerations intended to justify punishment benefiting non-victims. But howsoever that may be, it seems these considerations will still generate conclusions that are too weak from a cosmopolitan perspective. From this perspective, presumably, it is permissible to punish wrongdoers to protect non-citizens of the state also.
While one can extrapolate from claims about self-defense to claims about punishment, self-defense differs from punishment in that it primarily involves the duty people have not to offend against others, whereas punishment concerns obligations offenders owe to victims (and others) as a result of having offended against them (Tadros 2011: 266).
Consequentialism also plays a role, but Tadros says little about it.
For instance, elsewhere his rough and ready statement of 1) omits the proportionality element and his statement of 2) concerns not the permissibility of state punishment, but whether the state has a ‘right’ to punish (Tadros 2011: 9). In a different passage, he says that retributivism ‘holds only’ that ‘the intrinsic goodness of the suffering of wrongdoers is a good reason to punish them’ (Tadros 2011: 35–36). However, his official statement is silent on reasons for punishing offenders and on what justifies the state in punishing them (cf. Tadros 2011: 41). Again, in places Tadros ascribes to retributivists the view that the well-being of offenders should be proportionate given their offences (e.g. Tadros 2011: 70, 74). Strictly speaking, however, this does not follow from the definition in 1) and 2). If, in the course of punishment, a wrongdoer is subjected to physical pain and suffers as a result, this level of pain may be proportionate in relation to the offense, even if, ironically, as a result of his painful experiences his well-being is boosted in dimensions other than the pleasantness of his mental states (e.g., during the time of suffering he might acquire greater self-knowledge).
For textual evidence of Tadros’ endorsement of the first part of 1**) [a], see (Tadros 2011: 12).
Tadros states that the duty view shares with (non-consequentialist types of) retributivism the idea that respect for individuals means that one should not punish the innocent or punish offenders disproportionately (Tadros 2011: 42). Presumably, this is the motivation for the duty view as I have stated it here, not the view itself.
Cf. Tadros 2011: 39.
Retributivists who subscribe to Moore’s principle of organic unities might also deny that ‘the moral valence of suffering is reversed by wrongdoing’ (Tadros 2011: 73). Suffering is bad whoever the sufferer is, but the organic unity of someone’s suffering as a result of punishment and that person’s being a wrongdoer is good, or at least less bad than the organic unity of someone’s suffering as a result of punishment and that person’s being innocent. With regard to parts of valuable wholes Moore puts is as follows: ‘The part of a valuable whole retains exactly the same value when it is, as when it is not, a part of that whole’ (Moore 1989: 30). I am grateful to Raffaele Rodogno for this observation.
Tadros’ context-sensitivity here concerns reasons, not values. However, it is hard to see why reason–context–sensitivity should be any less of a mystery than value–context–sensitivity.
Admittedly, Tadros does not make the stronger claim that a feature which is good (a reason for performing a certain action) in one context can become bad (a reason against performing it) in another, but we are dealing with the claim that what is a large good in one context can become a small good in another, and once this concession is made it is hard to see why, in principle, it could not also be the case that a feature which is good in one context could be, not just less good in another context, but bad.
One might think that for this reason the comparative view would not really be retributivist, because retributivists want to show more than that punishment is justified in principle. However, to insist on this commitment is to go beyond what Tadros’ definition of retributivism involves. Also, the commitment would make the distinction between retributivism and the duty view heterogeneous if the latter is only committed to punishment being justified in principle while the former is committed to something stronger than that.
Note that this story cannot explain why retributivists find it bad if punishment fails to inflict suffering on the punishee, since this failure may not indicate the punishee’s lack of recognition of wrongdoing.
The internalist position on moral judgment and motivation that if one recognizes that it is wrong to act in a certain way, then one does not so act is an implausibly strong position.
It might be responded that the degree to which the value of all options count depends on the moral qualities of the actions involved in the relevant options (cf. Tadros 2011: 56). I am not able to respond adequately to this suggestion beyond reporting that it seems to undermine the ambition to provide a value-of-choice-based account of the moral qualities of actions (if such an account rests on assumptions about the moral qualities of actions not explained through the value of choice account).
I accept that, as Tadros shows, retributivists will (also) find it hard to explain why one may not use, say, lethal harm to defend oneself against an offender whom one knows to believe falsely, of himself, that he is firing at one with live ammunition when in fact he is only firing rubber bullets that will cause at most a slight bruise (Tadros 2011: 176–177).
I am grateful to Victor Tadros at this point.
I say ‘possibly’, because I am uncertain that 5) and 2*) entail 6). One reason is that in an internalist sense of ‘good reason,’ 5) does not say that retributivists have good reasons to doubt the trustworthiness of our intuitions about desert claims.
Take Hume, for instance (1999: 148–164), on freedom, and Harry Frankfurt (1988:1–10) on moral responsibility. Presumably, their claims are claims about our folk-psychological conceptions of freedom and moral responsibility, respectively. If (something like) their analyses are correct, it would be surprising if our idea of desert presupposes a contra-causal notion of freedom and responsibility rather than our folk-psychological one.
Tadros refers to the views of Galen Strawson, Ingmar Persson, and Derek Parfit that the ‘folk-psychology conception of free will grounds what is called either contra-causal or ultimate responsibility’ (Tadros 2011: 62), but he does not offer a defense of this claim. For a recent staunch denial that the folk-psychology conception of responsibility is contra-causal or involves ultimate responsibility, see (Hurley 2003: 80–105).
See, for instance, P. F. Strawson’s discussion of the ‘self-reactive attitudes’ of offenders who acquiesce in their punishment without developing any sense of resentment (Strawson 1982: 77–78).
In wrapping up the section on free will and desert Tadros reports that he knows ‘of no similar argument [to that of why choice is significant even given the falsity of contra-causal conceptions of free will] that can be mounted in favour of the idea that we should continue to accept that it is intrinsically good that offenders suffer [even given the falsity of contra-causal conceptions of free will]’ (Tadros 2011: 66). However, it is somewhat surprising to find his argument ending on this note, since the argument against desert he offers seems not to rely on this claim. In the same paragraph he also suggests that ‘[i]t would surely be better if we could justify punishment on grounds that are less controversial than desert’ (Tadros 2011: 66). Again, this might be so given that we have as an aim the defense of punishment. But this point is compatible with the view that retributivism is true and that we have good reasons to accept it, even if these reasons that are more controversial, i.e., fewer people endorse these reasons, than the reasons we might have for accepting other justifications for punishment.
It is not entirely clear whether he wants to argue that [i] blame and the significance of choice does not depend on ‘the truth of compatibilism’ (Tadros 2011: 64) or that [ii] ‘there is reason to be optimistic that a robust compatibilist account of blame [and the significance of choice] can be developed’ (Tadros 2011: 64). The latter is consistent with denying the former, because one might think that blame requires the falsity of incompatibilism (i.e., deny [i]), but also think that compatibilism is actually the true theory (i.e., affirm [ii]).
‘I am not sure what argument we can provide [i] for P that would convince retributivists that [ii] they are wrong to deny that desert rests on a false conception of free will and responsibility’ (Tadros 2011: 63). Tadros then proceeds to present the argument quoted in the main text as an argument of the type to be needed. However, [i] and [ii] are different claims, and an argument for [ii] is not necessarily an argument for [i]. In particular, the conclusion of the argument offered by Tadros leaves entirely open what the correct account of whether desert presupposes contra-causal freedom is.
Tadros believes ‘it is permissible to harm a person as a means to an end if that person would have had an enforceable duty to avert the threat were she able to do so, even if, in exercising her duty she would be harmed to the same degree’ (Tadros 2011: 129). However, it is unclear if this view means we should revise the quoted statement of the means principle so that it says it is worse to harm a person intentionally than it is to harm him or her as a side effect of one’s actions unless the person has an enforceable duty to suffer this degree of harm to avert some relevant threat, since the permissibility claim is compatible with the view that it is still harder to justify harming as a means even though the person has an enforceable duty to suffer the harm to remedy the wrong or avert a threat that he or she created.
In his critique of the retributivist view that the well-being of offenders should be reduced in proportion to their offenses, Tadros notes that there are other possibilities—e.g., that their rights should be restricted, that the well-being independent value of their life should be reduced, or that their non-self-regarding preferences should be frustrated in proportion to their offenses. In canvassing their view that it is well-being that counts, retributivists ‘will once again resort to intuition’. Tadros describes this as ‘unsatisfying’ and insists that a reason is needed here (Tadros 2011: 74). If so, similar remarks apply to Tadros’ endorsement of the means principle. When we determine which kinds of harm matter for the purpose of applying that principle (e.g., does frustrating someone’s non-self-regarding preferences as a means violate the means principle?) we run into the very same question (e.g. Tadros 2011: 130).
Philippa Foot, ‘The Problem of Abortion and the Doctrine of the Double Effect’, Oxford Review, Number 5, 1967; reprinted in Virtues and Vices (Oxford: Basil Blackwell, 1978).
The fact that six, not five, people will be saved if the big man is pushed off the bridge means that the number of lives saved is not equalized across the driver* and bridge* cases. However, given my use of the cases, this is not a problem, because this asymmetry would, if anything, render pushing the big man over the bridge more likely to be permissible.
It might be said in response that my argument fails to show that harming people as a means has no bearing on moral permissibility; it only shows that such harming is not the only thing with that bearing. I accept this point, which is compatible with the conclusion I want to establish in this section. Moreover, I take it that harming as a means makes a significant difference to permissibility on Tadros’ view. If this is correct, there are limits to how much he can rely on the present point.
Similarly, he might say that in the bridge* case the agent’s action is impermissible because it is not ‘an option for a person who is properly motivated by the moral reasons that apply to him’ to push the big man over the bridge.
See, for instance, my remarks in the next section on inflicting pains on animals as a means.
Some readers might be puzzled as to why Tadros suggests that ‘[a]gent-relative constraints are very difficult to motivate’ (Tadros 2011: 117; cf. Tadros 2011: 125n19, 126). The considerations that he offers seem intended to motivate agent-relative constraints as they are normally understood and were once set out in Scheffler (1982: 80): ‘An agent-centred restriction is a restriction which it is at least sometimes impermissible to violate in circumstances where a violation would prevent either more numerous violations, of no less weight from an impersonal point of view, of the very same restriction, or other events at least as objectionable, and would have no other morally relevant consequences’. Tadros, it seems, is aiming to justify agent-relative constraints so construed. However, he wishes (and this is what I take to be the thought behind the passage quoted in the first sentence in this footnote) to ground the source of agent-relative constraints in non-agent-relative moral considerations (cf. Kamm 2007: 29).
Tadros recognizes that human beings with such distinctive capacities pose a problem for this view, but cursorily suggests that ‘[i]t may be that their relationship with those who have the relevant capacities grounds the application of the means principle to them’ (Tadros 2011: 127n).
Admittedly, she also discusses moral status in relation to violations of the principle of permissible harm-rights (Kamm 1996: 264) and suggest that, like an agent-relative prerogative, agent-relative constraints derive from ‘a person’s entitlement to control something, because he is not merely a means to a greater good’ (Kamm 1996: 262). Of course, these observations also show that Kamm does not tie moral status specifically to the means principle.
The feature is brought out in Samuel Scheffler’s definition of agent-relative constraints: see footnote 33.
Cf. (Tadros 2011: 127) where he denies that there is an agent-relative constraint of harming animals as a means. It is not clear from this discussion, however, whether he shares the intuition to which I appeal.
Compare this statement: ‘[o]ur desire to maintain our moral independence through endorsing a set of rules that conform to the means principle may be less significant than the value that we put on avoiding some much greater harm’ (Tadros 2011: 138).
Given his critique of Jean Hampton, I wonder if he can consistently take the means principle to provide any more than weak moral reasons. Hampton thinks that lack of respect for one’s victim is important in the justification of punishment. Tadros expresses skepticism about this on the grounds that ‘if lack of respect does not erode moral status it is difficult to see why the obligation to protect people against lack of respect is very significant in itself’ (Tadros 2011: 108). But this question applies not only to protecting victims from the disrespect of other agents, but also to one’s own disrespecting of others. If, as Tadros thinks, all retain their moral status irrespective of whether I treat them disrespectfully, it would seem, given Tadros’ critique of Hampton, that my reason not to disrespect them is not very weighty—in which case it should be permissible, say, to use someone as a means when that will prevent two or more cases in which someone uses another as a means. After all, the one person I use will retain his or her status despite being used as a means.
Tadros might respond to the present objection by conceding that the means principle, properly construed, says: ‘it is worse to affect [persons] intentionally than it is to affect them as a side effect of one’s actions’. While this version of the means principle fits his rationale for it better than the version he discusses, its intuitive fit seems worse. For instance, a suitably revised pair of the bridge and the driver cases would not seem to suggest that it worse to benefit the one as means of saving the five than to benefit the one as an unintended side effect of saving the five.
I am not defending Thomson’s view here. In fact I find her claim that a ‘bystander … cannot impose a cost on the person on the second track if he would be unwilling to bear that cost himself’ (Tadros 2011: 119; Thomson 2008, 366) perplexing. This would seem to imply that permissibility hangs on the bystander’s attitudes, which seems to conflict with Thomson’s view that mental states are irrelevant to permissibility. However, I do agree with Thomson that since the agent ‘wouldn’t himself pay the cost of his good deed if he could pay, there is no way in which he can decently regard himself as entitled to make someone else pay it’ (Thomson 2008: 366). Still, it does not follow from one’s inability to decently think that one lacks a certain entitlement that one in fact lacks it, and it is surprising, given her commitment to the irrelevance to permissibility of mental states, that Thomson thinks otherwise.
I am probably missing something in Tadros’ argument here, but it seems to me that he equivocates between individuals using harm to others (or others) as a means and norms requiring or permitting harm to others (or others) to be used as means. This emerges, for instance, in a passage where Tadros complains that Thomson assumes that ‘[a] being required to bear a cost in the service of a goal as equivalent to [b] having a cost imposed on one where that is not done in the service of a goal, but simply as a side effect’ (Tadros 2011: 120). Here the [a]-section concerns what costs norms require to be imposed, whereas the [b]-bit concerns the harms individuals impose on others.
Note that on the extension of the means principle suggested in the last paragraph of the previous section, this case clashes with the means principle suitably construed.
This problem is similar to the one facing retributivists who think that punishment is justified as a means of stripping offenders of the benefits they received through wrongdoing. Their view seems not to justify punishing offenders who obtain no benefits from their wrongdoing, yet intuitively we might judge such punishment to be justified (cf. Tadros 2011: 27).
One might take Tadros’ remarks about his theory being a ‘stepping stone’ to an abolitionist view of punishment (Tadros 2011: 40) to indicate that he would simply bite the bullet here (if he sees it as such) and agree that in these cases the wrongdoer should not be punished.
The ‘all other things being equal’ clause excludes the possibility that the marginal harm resulting from a certain wrong might increase when one is subjected to the wrong repeatedly.
Tadros provides additional principled reasons against the death penalty and against confiscating the organs of wrongdoers (Tadros 2011: 308–309). None seems to be tied specifically to the duty view.
References
Dancy, J. (1993) Moral Reasons. Oxford: Blackwell.
Dancy, J. (2004) Ethics without Principles. Oxford: Clarendon Press.
Fabre, C. (2006) Whose Body Is It Anyway? Oxford: Oxford University Press.
Frankfurt, H. (1988) The Importance of What We Care About. Cambridge: Cambridge University Press.
Hume, D. (1999) An Enquiry Concerning Human Understanding. Oxford: Oxford University Press.
Hurley, S. (2003) Justice, Luck, and Knowledge. Cambridge, MA: Harvard University Press.
Kagan, S. (1988) The Additive Fallacy. Ethics 99, 5–31.
Kamm. F. M. (1996) Morality, Mortality vol. 2. Oxford: Oxford University Press.
Kamm, F. M. (2007) Intricate Ethics. Oxford: Oxford University Press.
Lippert-Rasmussen (1996) Moral Status and the Impermissibility of Minimizing Violations. Philosophy & Public Affairs 25.4, 333–49.
McMahan J. (2009) Killing in War. Oxford: Clarendon Press.
Moore, G. E. (1989 [1903]) Principia Ethica. Cambridge: Cambridge University Press.
Parfit, D. (1998) Equality and Priority. In A. Mason (ed.), Ideals of Equality (pp. 1-20). Oxford: Blackwell.
Scheffler, S. (1982) The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions. Oxford: Clarendon Press.
Strawson, P. (1982) Freedom and Resentment. In G. Watson (ed.), Free Will (pp. 59–80). Oxford: Oxford University Press.
Tadros, V. (2011) Ends of Harm: The Moral Foundations of Criminal Law. Oxford: Oxford University Press.
Thomson, J. J. (2008) Turning the Trolley. Philosophy & Public Affairs 36.4, 359–374.
Acknowledgments
I am very grateful to Nicholas Vrousalis, Alex Voorhoeve, and Zofia Stemplowska, for helpful discussions of the topics dealt with in this review paper, and to Massimo Renzo, Raffaele Rodogno and especially to Victor Tadros, for excellent written comments on an earlier draft of this paper.
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Lippert-Rasmussen, K. ‘To Serve and Protect’: The Ends of Harm by Victor Tadros. Criminal Law, Philosophy 9, 49–71 (2015). https://doi.org/10.1007/s11572-013-9216-y
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DOI: https://doi.org/10.1007/s11572-013-9216-y