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Notes
This paper is a review essay of Tadros (2012). References to the book will be by way of parentheses in the text.
Tadros’s account therefore bears a family resemblance to Hart’s (1968) hybrid theory of punishment, according to which the utilitarian aims of punishment have to be tempered by moral constraints on the treatment of persons, and, for that matter, to the sentencing practices of liberal democracies, which typically try and combine factors such as the moral blameworthiness of the offender, the degree of harm caused by the offence, general deterrence, specific deterrence, and rehabilitation (see for example, Criminal Code, RSC 1985, c. C-46, ss. 718, 718.1, 718.2).
For these two kinds of critique, see Sen (1988). Sen himself is partial to the “case-implication” method.
I am not sure whether Tadros expressly says this (though see 206); but it is helpful for understanding the relationships among the norms that he does expressly adopt; and it is intuitively plausible.
Tadros claims that Cain also has this permission where he believes, mistakenly but reasonably, that Abel poses a threat to him. He embeds this claim in a more general argument about the relevance of beliefs, perceptions, evidence to the permissibility of an act (Chapter 10). I am quite sympathetic to this argument, and I do not think that any potential disagreement with its details would affect the points I make in the text. So I will consider only cases where Cain’s factual beliefs are correct and well-supported by evidence.
Tadros is cagey about the exact quantification of the duty of easy rescue. He suggests that one might have a duty to incur one unit of harm to avoid 1000 units of harm to others (128), or that one might have a duty to give up a minor piece of property (130) or a finger (131) to save a life, but he avoids committing himself to particular ratios of harm incurred to harm avoided.
Tadros’s argument on this point is quite intricate, involving bizarre hypothetical situations and a purported duty on wrongdoers to make an agreement to avert the harms caused by each other’s wrongdoing (191–196). I have not been able to work out why, in Tadros’s view, they are required to agree in order to acquire this duty, particularly since he thinks the duty is enforceable even if they don’t (compare his critique of contractualism at 4–5).
Locke (1988, p. 276) (Second Treatise, §14). Cain and Abel could, I suppose, submit their dispute to a third party for arbitration, but that third party, though also a free, morally autonomous, and choosing agent, has no more authority over them than they have over themselves and so would be in no position to enforce her judgment should one of them disagree with it.
Locke (1988, p. 325) (Second Treatise, §89).
Notably, Tadros provides a critique of retributivism and of Duff’s (2007) communicative account of punishment (Chapters 2 through 5) and an extensive discussion of self-defence and its relationship to the Duty Theory of Punishment (Chapters 8, 10, 11). I am sympathetic to some of Tadros’s conclusions about self-defence, and I share some of his concerns about Duff. But it seems odd to characterize retributivism as an account of the good to be achieved through punishment (25–28), rather than of the right to be vindicated by punishment (84–87), and compare Brudner (2009, pp. 37–55). So his critique goes wide of its mark. These points are worthy of further discussion at another time.
Kant (1996, p. 4:428). All references to Kant will be by volume number and page number to the Royal Prussian Academy edition of Kant’s works.
Kant (1996, p. 6:462).
To find anything resembling a Kantian version of an Enforcement Exception, one has to turn to Kant’s legal philosophy, though even here the injunction against treating people as mere things remains in force. See Kant (1996, pp. 6:382–383) and Sect. "A Natural Right of Punishment?".
Not least because Kant held that it was impermissible to treat oneself as a mere means: Kant (1996, pp. 6:434–435).
This is the most plausible defence of the Enforcement Exception, but I am not entirely certain whether Tadros would endorse it in these terms. He might say that Abel is permissibly wronged.
“… a person’s body is so fundamentally connected with the person that the use of the body amounts to the use of the person” (254).
He also defends it with reference to some familiar problems from the morality of war. The Means Principle presumably forbids Terror Bombing, i.e., the intentional killing of civilians as a means to an otherwise permissible military end, but Tadros (like many others) says that it permits Strategic Bombing, i.e., the foreseen killing of civilians as a side-effect of an otherwise permissible military action, because the civilians are not intentionally killed (202). Even if this is a conclusion in the morality or the law of war, it’s not clear that war is a particularly illuminating source for the morality or the law of runaway trolleys; as Luban (2011, p. 312), puts it, “warfare has no obvious domestic analogy”. States are in a state of nature vis-à-vis each other, but trolley drivers and pedestrians are not. States must be taken to have agreed to settle their differences, ultimately, by war because there is no sovereign with the authority to provide that resolution for them (Kant (1996, p. 6:346)), but two citizens of a rightful condition must be taken to have agreed, through the social contract, to settle their differences through the institutions of the legal order. All these distinctions are obscured if, as Tadros believes, there is a Natural Right of Enforcement (see Sect. "A Natural Right of Punishment?").
This might be the case if the trolley’s journey along the side-track slowed it sufficiently so that it no longer posed a lethal threat to the Seths. I stipulate that this is not so in Switchback.
Put another way, if the 5:1 ratio was not high enough to give Abel a duty of rescue in Bridge, the 1:5 ratio in Switchback certainly would not be.
Punishment of the innocent is unavoidable in any system of criminal law that actually finds people guilty because of the unavoidability of error: in the best-case scenario, we know we are punishing some innocents, but we don’t know who they are, and we hope there are not too many of them. So I discuss this problem in terms of “framing” an innocent, that is, of punishing a particular innocent person whom the prosecution knows to be innocent. “Framing” the guilty is also objectionable because it is a misuse of the rules of evidence and procedure. But that is a topic for another time.
But not impossible: in accordance with the Natural Right of Enforcement, Tadros argues that criminal punishment is permissible in the state of nature, where there is no advance notice (316–317).
Compare Hart (1968, pp. 181–182).
This is, I take it, the normative point of the claim that it is conceptually impossible to punish the innocent, though I agree with Tadros (313) that it is not helpful to rule out punishment of the innocent by definition.
I agree that this is a good pragmatic reason to accept the decision of a court. But the principal reason to accept it is that it is the court’s decision to make.
Kant (1996, p. 6:312, original emphasis).
Rousseau’s and Kant’s conceptions of the general will are the classic points of reference, but many others have tried to solve the same problem. See Kant (1996, pp. 6:311–318); Rousseau (1964, especially Livre I); Rawls (1993, especially Lecture III); Habermas (1996, Chapters 3 and 4); Ripstein (2009, Chapter 7). Tadros rejects contractualism as an account of morality on the ground that the idea of agreement over a principle is not basic to deciding whether the principle is correct (4–5). But that says nothing about idea of the social contract as a vehicle for understanding the state’s moral powers.
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Acknowledgments
François Tanguay-Renaud, Vincent Chiao, Mohamad Al-Hakim, and I discussed Tadros (2012) in detail during a series of very agreeable lunches in the 2012 Winter term. I am very grateful for those discussions. I also thank Vincent Chiao and Arthur Ripstein for helpful comments on a draft.
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Stewart, H. Criminal Punishment as Private Morality: Victor Tadros’s The Ends of Harm . Criminal Law, Philosophy 9, 21–35 (2015). https://doi.org/10.1007/s11572-013-9200-6
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DOI: https://doi.org/10.1007/s11572-013-9200-6