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Notes
In Gardner’s words, ‘by punishing people in proportion to their crimes, where those crimes are mapped according to the action that made them wrongful adjusted for the offender’s blameworthiness in respect of them, the court contributes decisively to the affirmation of the offender’s humanity which is a sine qua non of the legitimacy of any modern State punishment’ (233). As he emphasises in the postscript (282–283), it is really criminal law as a whole that he has in mind here, since, according to him, ‘the criminal law is only secondarily a vehicle for […] punishment. It is primarily a vehicle for the public identification of wrongdoing (by standards of evidence and procedure) and for responsible agents, whose wrongs have been thus identified, to answer for their wrongs by offering justifications and excuses for having committed them’ (80) and, thus, establish that they are not blameworthy (faulty, culpable).
Gardner also speaks, without much detail or nuance, of ‘fault-anticipating wrongs’ that are only committed by responsible agents who lack (certain) justifications or excuses for what they do (150–153). However, since these more complex wrongs are generally parasitic on more basic ‘strict wrongs’ whose commission is not contingent on their perpetrator’s blameworthiness, their existence does not undermine his basic categorization. Of course, I do not mean to imply here that Gardner could not usefully say more about these ‘frequently’-encountered fault-anticipating wrongs. A discussion of the relationship between the various breaches of justificatory or excusatory standards that can partly constitute them and the range of mental-state requirements typically encountered in the formulation of both criminal law offences and moral wrongs would perhaps be most welcome.
To be sure, Gardner’s account of this agent-perspectival aspect of justifications in terms of ‘how things seemed to the agent at the time of action’ (227) can be misleading. As his work otherwise makes clear, it is motivation and not mere perception that matters for justification. Although the two ideas are intimately related in that perception generally influences motivation, mere perception is insufficient.
The criminal law may, however, be justified in bringing non-responsible wrongdoers with mental health problems ‘into contact with those who can treat their condition’ (215). Insofar as the criminal law has any justification, Gardner insists, it is likely not a unitary one.
This lack of attention comes despite Gardner’s recent unambiguous acknowledgement that it is possible to act for genuinely mixed motives (Gardner 2007a, p. 2620).
This might be one of the ‘rare cases’ of justification that Gardner himself alludes to when he writes: ‘That people are inclined to retaliate against those who wrong them, often with good excuse but rarely with adequate justification, creates pressure for social practices which tend to take the heat out of the situation and remove some of the temptation to retaliate, eliminating in the process some of the basis for excusing those who do so’ (213–214). The puzzle introduced in the text highlights the need for further exploration of the relationship between self-defence, revenge, punishment, and criminal law that Gardner begins to unearth in the passages surrounding this quotation and in the last sections of the Reply to Critics.
This example, brought to my attention by Kimberley Brownlee, is a variant on a scenario deployed for different purposes in Nathanson (1985).
On this point, see Gardner (forthcoming a).
In fact, it sometimes seems as though, on the issue of agent-neutralism, Gardner’s most basic assumptions are insufficiently probed. For example, he seems to think that only an agent-relativist would regard killing one person to prevent five people from being killed as wrong (58–66). However, this assumption is incorrect (e.g., Kamm 1986, Ch. 10).
Gardner (forthcoming b).
For a systematic presentation of Pettit’s position, see especially Pettit (2007). In short, Pettit argues that some groups acting under adequate normative frameworks are relatively autonomous agents that may be in positions to act wrongfully, have the understanding and the access to evidence required for making judgements of value, and have the control required for being able to respond appropriately to these judgements. See also French (1984).
In a recent essay, Gardner claims that corporate organisations such as some state institutions can conceivably be agents whose agency is irreducible to the agency of their individual human members (Gardner 2007b, pp. 57–60). Of course, this claim leaves open the possibility that such irreducible corporate agents may not be rational and moral agents, but other recent comments of his seem to preempt this argumentative strategy. ‘States,’ he writes, ‘are moral agents too […] The state must not murder or be complicit in murder. It must not rape or be complicit in rape. It must not rob or be complicit in robbery’ (Gardner 2007a, p. 2628). This contention seems only one short step away from the claim that states and, possibly, other corporate agents can be irreducibly responsible (qua response-able) for their wrongs.
He seems to recognize the appeal of this other line of argument in some of his recent work. ‘One must be basically responsible,’ he writes, ‘or at least assumed to be basically responsible, for the question of one’s consequential responsibility to arise in the first place.’ Why use these words? A few paragraphs later, he provides the reader with a clue by asking the following: ‘Aren’t there cases in which a fiction of basic responsibility may, with moral propriety, be sustained in the law (or in other institutional settings), so that the advertised precondition of consequential responsibility may be treated as satisfied when it is really not?’ (Gardner 2008, p. 138).
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Thanks are owed to Victor Tadros for helpful comments.
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Tanguay-Renaud, F. Understanding Criminal Law through the Lens of Reason. Res Publica 16, 89–98 (2010). https://doi.org/10.1007/s11158-009-9100-8
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DOI: https://doi.org/10.1007/s11158-009-9100-8