Waller's Argument Against Moral Responsibility (Part Two)

(Part One)

This is the second part of a brief series of posts on Bruce Waller’s recent book Against Moral Responsibility. The book as whole presents a detailed case against the concept of moral responsibility. My series of posts is focusing on the basic argument at the heart of that more detailed case. This basic argument is found in chapter one of Waller’s book.

In part one, I followed Waller by examining the debate between Galen Strawson and Alfred Mele on the possibility of moral responsibility. As we saw, Strawson argues against moral responsibility on the basis of the causa sui principle (an agent is responsible for their actions if and only if they are a causa sui); Mele argues in favour of moral responsibility on the basis of the intentional self modification (ISM) principle of responsibility (an agent is responsible for their actions if they intentionally self modified themselves to have a certain set of character traits). The problem was that both principles have intuitive support and there’s little basis for choosing one over the other.

Waller enters the debate at this point with his own argument against moral responsibility. As I said the last time, his argument works from yet another intuitive principle. This might seem like an inauspicious place to work from since if we accept it, instead of having to decide between two intuitively supported principles, we’d now have to decide between three. But this is not necessarily true. If Waller’s principle is, in some sense, more compelling, or more ethically basic than either that of Strawson or Mele, then he might be able to win the day. In the remainder of this post, we’ll try to see whether or not this is the case.


1. The Strange Case of Benji and Betty
Like Mele, Waller develops his arguments through some elaborate thought experiments. He presents two such thought experiments in the course of chapter 1, each of which asks us to consider the differing fates of two individuals. In the first thought experiment, we consider two people, one of whom acquiesces to a racist policy and the other of whom protests a racist policy. We are then asked whether or not we should reward the protester and blame the acquiescer. In the second thought experiment, we consider the fates of Benji and Betty, one whom is a cognitive miser and the other of whom is a chronic cogniser (terms that will be explained).

In the interests of brevity, I’m going to combine elements from both thought experiments and ask you to consider the strange fates of both Benji and Betty. Now, as it happens, we were introduced to Betty in part one. She was the main character in Mele’s thought experiment on intentional self modification. We shall repeat her story here, but also include a latter passage from her life.

The Strange Case of Betty: Betty is a six-year-old girl who is afraid of the basement in her house. She knows that no harm has come to anyone, including herself, who has entered the basement. But she is still afraid. Nevertheless, she recognises that her fear is “babyish” and takes steps to overcome come it. She starts to make periodic visits to the basement, staying slightly longer each time until she no longer feels afraid. After following this method for a few months, she loses her irrational fear.

This ability to intentionally self modify parts of her character comes in handy throughout Betty’s life. She uses it to develop sound and effective study habits, work practices and, most importantly, moral character. Later in life when she is working on a university hiring committee she is asks to acquiesce in a racist hiring decisions. She refuses, sticking to her strengthened moral principles.

Question: Should we reward Betty for this courageous decision?

As Waller puts it, Betty is a chronic cogniser, i.e. someone who takes pleasure in thinking and engaging in extended deliberation and decision-making. As a result, she has a strong sense of having an internal locus of control, of being the captain of her own fate.

Her life story must be contrasted with that of her brother, Benji. Unlike Betty, Benji is a cognitive miser, i.e. someone who does not enjoy thinking and deliberating, and who tends to act quickly and intuitively. As a result, he has a strong sense of having an external locus of control, of being swept along by events that are not of his making.

Let’s hear about his story now:

The Strange Case of Benji: Benji is a seven-old-boy who is, like his sister, afraid of the basement in his house. Like his sister, Benji recognises his fear as being “babyish” and would like to overcome it. However, unlike his sister, Benji has not been blessed with the innate cognitive skills that give him the motivation to undertake a program of intentional self-modification. He lets external events decide his fate for him, hoping that he will simply grow out of his fear.

His tendency toward cognitive miserliness does not stand him in good stead for the rest of his life. He drifts aimlessly from career to career, and engages in a number of habits he knows to be self-destructive (smoking, over-eating, drinking etc.). Later in life, when asked to acquiesce in a racist hiring decision at his new company, Benji simply “goes with the flow”, refusing to take a principled stance against it.

Question: Should we blame Benji for this cowardly decision?

For the time being, the questions about blaming and rewarding Betty and Benji will remain strictly rhetorical. Their importance will come to the surface when we look at Waller’s actual argument against moral responsibility. For now, I want to highlight three important features of these thought experiments.

First, and least important in terms of understanding the overall argument, there is the fact that the existence of cognitive misers and chronic cognisers is something that Waller backs up by reference to the psychological literature. In other words, these are not simply concepts that he plucks out of thin air, they seem to be genuine traits found amongst real people.

Second, there is the idea that the initial distribution of cognitive capacities and traits (i.e. the kinds of things that are essential to the decision-making process) are unequal: Benji and Betty were not equally blessed when it came to capacity for self-modification. They were victims of the natural lottery.

Third, there is the idea that one’s decisions early in life (such as Betty’s decision to self modify her fear) can create a positive feedback loop, and this can have a great impact on the rest of one’s life. Again, this is something that could be backed up by references to the psychological literature (e.g. the work on the marshmallow test).


2. Waller’s Argument from Unfairness
The last two points just mentioned — that the initial distribution of capacities is unequal and that early decisions can have profound effects on one’s future — form the backbone of Waller’s basic argument against moral responsibility. Instead of working from an intuitively compelling principle of responsibility (like Strawson and Mele), the argument actually works from a principle of fairness. It does so on the grounds that judgments of responsibility are used to justify differential outcomes (reward, punishment), and differential outcomes raises issues of fairness.

The argument itself can be stated with brevity, now that the thought experiments have been presented. It looks something like this (numbering builds upon part one):

• (16) Differential outcomes for two (or more) persons can only be justified if they had equal opportunity to achieve those outcomes.

• (17) If Betty is rewarded for opposing a racist decision and Benji is punished for agreeing to a racist decision, then they are experiencing differential outcomes.

• (18) Therefore, if Betty is to be rewarded for opposing a racist decision and Benji to be punished for agreeing to a racist decision, they must have had equal opportunity to achieve those outcomes.

• (19) Because the initial distribution of decision-making capacities and traits is unequal, and because this inequality has long-term implications, Betty and Benji did not have equal opportunities.

• (20) Therefore, Betty and Benji cannot be rewarded and punished for what they did.

Now let’s talk about this for a minute. Notice that the argument is not explicitly about responsibility but is, instead, about reward and punishment. If I were being niggly, I might object to this on the grounds that there is a gap between responsibility and liability, but since judgments of responsibility and judgments of liability are so closely linked I’ll leave this complaint slide. I’ll accept that if Waller makes his case against liability, he has made his case against moral responsibility.  After all, there wouldn’t be much to cheer about if there were a theory of responsibility that didn’t allow for liability.

Next, let’s consider the defence of the argument. Premise (16) is a principle of equality. It is defended by appeal to fundamentality of equality concerns in moral philosophy, particularly political moral philosophy. Apart from that, there’s really no deep support for equality of opportunity. It tends to be a primitive or unquestioned value in these kinds of debates. Premise (17) seems to be obviously true: if one person is rewarded and another is punished, then they are being treated differently. Premise (18) then follows. Premise (19) is justified by appeal to the thought experiments and the psychological literature that supported some of the ideas in those experiments. The conclusion then follows. Of course, the argument is specifically tailored to Betty and Benji but the idea would be that their cases are a fair representation of those of all people. So the argument is intended to be of general applicability.

Finally, let’s ask whether this argument is better than either Strawson’s or Mele’s. Again, this is difficult to say. Waller’s argument — like those of Strawson and Mele — is based on an intuitive principle. But is his principle more compelling than those used by Strawson and Mele? As it happens, I think it is. But I don’t if I can provide a strong justification for this. It just seems right to me to say that issues of distribution and fairness occupy a higher rung in the moral ladder than do issues of responsibility. Thus, I’m inclined to think Waller’s argument is better.

If you’re still reading, I’d be interested in hearing what you think. Comments below please.

Waller's Argument Against Moral Responsibility (Part One)

I’ve just started to read Bruce Waller’s new book Against Moral Responsibility. As might be guessed from the title, the book is rejection of moral responsibility, written explicitly from a naturalistic viewpoint. Since I’ve only just started it, I can’t comment meaningfully on its overall success. I can say that I’ve enjoyed what I’ve read so far, although its slightly less formal in its style than I would have liked. I want to try to correct that problem in this post.

I do so by examining the basic argument that Waller offers in his first chapter. His basic argument (not to be confused with Galen Strawson’s Basic Argument which I’ll be talking about in a minute) focuses on the fairness of blame and reward, but he presents it in a two different ways: the first way by developing his own thought experiment, and the second way by jumping into a pre-existing debate between Galen Strawson and Alfred Mele. Although the first way is probably the simplest, I’m going to focus on the second way here. I do so largely because it allows me to cover some interesting arguments by leading figures in the field of moral responsibility.

In the remainder of this post, I will focus directly on the dialectic between Strawson and Mele. This requires first looking at Strawson’s Basic Argument against moral responsibility and then looking a Mele’s reply. In the next post, I’ll look at Waller’s contribution to the debate.


1. Strawson’s Not-so Basic Argument
Strawson’s basic argument against moral responsibility turns out not to be so basic. At least, not if basic means “simple” and “straightforward”. The problem is that there are several different versions of the basic argument floating around in the philosophical ether. Indeed, I have read one article in which Strawson outlines four different versions of the argument (it’s in the Oxford Handbook of Free Will, in case you’re interested). I’ve come across at least two other versions presented by Strawson in other articles, and Waller himself presents an abbreviated version in his book. This brings the total number of versions to at least seven (by my count). I’m going to limit myself to two versions of it here: (i) the regress version and (ii) the causa sui version.

The causa sui version of the argument really is quite simple and straightforward. It’s also the version I like the most, partly because it exposes a problem I have with the regress version. Given this, one might think it best to skip the regress version altogether, but we have to look at the regress version since it’s the one discussed by Mele and Waller. So I may as well explain my problem with it as I go along.

You can find a “cumbersome” presentation of the regress argument over the Information Philosopher website (LINK). I want to aim for something a little less cumbersome, so I’m going to try to reconstruct the argument from Waller’s summary of it. His summary is as follows:

If one is to be truly responsible for how one acts, one must be truly responsible for how one is, morally speaking. To be truly responsible for how one is, one must have chosen to be the way one is. But one cannot really be said to choose (in a conscious, reasoned fashion) the way one is unless one already has some principles of choice (preferences, values, ideals etc.) in the light of which one chooses how to be. But then, to be truly responsible for one’s having those principles of choice, one must have chosen them, in a reasoned conscious fashion. But that requires that one have principles of choice. And thus the regress. (pg. 29)

If you take the time out to compare this summary with the cumbersome version of the argument linked to above, I think you’ll find it to be quite fair, if highly compressed. In any event, one can see the attempt at a regress even in this compressed presentation: we start with a principle about responsibility for particular acts, we link responsibility for particular acts to one’s agency properties (character, mental states etc.) at the time of those acts, and we then link one’s responsibility for those agency properties to choices made at an earlier time. This need to link responsibility at one moment in time to responsibility at an earlier moment in time is recursive, i.e. it keeps needing to be re-inserted into the argument. Hence we get a regress.

My problem is that I’m not sure that the regress is that persuasive. Hopefully, I can explain this by constructing a more formal summary of what I think is the argument in the quoted passage. I acknowledge at the outset that I’m adding in some ideas to make the argument work. Perhaps that makes my summary unfair. If so, I apologise. But even if it is unfair, I trust it is of some value to those who, like me, are not persuaded by the regress argument at a first glance. Here’s my summary:

• (1) If one is to be responsible for how one acts at time Tn, one must be responsible for how one is at Tn.

• (2) To be responsible for how one is at Tn, one must have chosen to be the way one is Tn.

• (3) Therefore, in order to be responsible for how one acts at Tn, one must have chosen to be the way one is at Tn.

• (4) To be responsible for choosing to be the way one is Tn, one must be responsible for the principles of choice (preferences, values etc) that guide one’s agency-forming choices prior to Tn.

• (5) Therefore, in order to be responsible for how one acts at Tn, one must be responsible for one’s principles of choice prior to Tn (from 3 and 4).

• (6) To be responsible for one’s principles of choice prior to Tn, one must have chosen to have those principles of choice prior to Tn.

• (7) Therefore, to be responsible for how one acts at Tn, one must have chosen to have one’s principles of choice prior to Tn.

And so on and so on and so on.

Here’s my problem: I don’t see how this pattern of reasoning can, in its present form, provide much of an argument against the concept of moral responsibility. In particular, I can’t see why a proponent of moral responsibility couldn’t just call a halt after the first step of the regress, (i.e. at (3)). In other words, I can’t see why they couldn’t just: (a) accept that to be responsible for how one acts at Tn, one must have chosen to be the way one is at Tn and (b) leave it at that. Why must they go on and accept that in order to be responsible for how one acts at Tn, one must also be responsible for the prior choices that lead to one being a particular way at Tn? (This is something Mele brings up, as we shall see in a moment)

It seems like in order for the preceding argument to be successful, we’d need to include an explicit “transfer principle” of responsibility. As follows:

Transfer Principle of Responsibility: An agent is responsible for causing an outcome, event or state of affairs at Tn, if and only if they were previously responsible for the outcomes, events and states of affairs that lead them to Tn.

I call this the transfer principle because it says that responsibility for particular acts at one moment in time must be transferred from responsibility at an earlier moment in time. I think this principle is needed to make the regress argument compelling and I think its truth is, at the very least, open to doubt.

As it happens, the transfer principle is (deliberately) similar to the causa sui principle which guides Strawson’s simplest version of his basic argument. We must define what a causa sui is first:

Causa Sui: An object, event or state of affairs that is the cause of its own existence

Then we can define the causa sui principle as follows:

Causa Sui Principle of Responsibility: An agent is responsible for their actions if and only if they are a causa sui (in a least some crucial mental respects).

Finally, this gives us the causa sui version of Strawson’s basic argument against moral responsibility:

• (8) An agent is responsible for their actions if and only if they are a causa sui (in at least some crucial mental respects)

• (9) No agent can be a causa sui (in crucial mental respects).

• (10) Therefore, no agent can be responsible for their actions.

I trust you can see why I prefer this version of the argument: it’s simpler, more elegant and it makes clear the overarching principle of responsibility that is guiding the reasoning. That said, I’m not sure that this renders the regress argument a pointless distraction. On the contrary, something like the regress argument could be used to support the claim that no agent can be a causa sui (premise 9).

Anyway, this has been a long, and perhaps unnecessary exegesis of Strawson’s Basic Argument. Still, I hope it’s been mildly interesting. For present purposes, all we need to focus on are the transfer and causa sui principles of responsibility because it is these principles that Mele seems to object to in his work.


2. Mele’s Intentional Self-Modification
Mele seems to accept the idea that in order to be responsible for how one acts, one must be responsible for how one is at the time of action. But he takes exception to Strawson’s claim that in order to be responsible for how one is, one must have chosen to be that way. He thinks there are cases of intentional self-modification that allow an agent to be responsible for what they do, without involving an infinite regress of choices. He makes his case by first developing the following thought experiment:

The Case of Betty: Betty is a six-year-old girl who is afraid of the basement in her house. She knows that no harm has come to anyone, including herself, who has entered the basement. But she is still afraid. Nevertheless, she recognises that her fear is “babyish” and takes steps to overcome come it. She starts to make periodic visits to the basement, staying slightly longer each time until she no longer feels afraid. After following this method for a few months, she loses her irrational fear.

The thought experiment is interesting for two reasons. First, it shows how, working from a basic set of desires and preferences, Betty manages to intentionally self-modify her character in a significant way. This modification allows her to do things she was previously unable to do. For example, before undertaking the program of self-modification she might have run away from or avoided the basement; after undertaking the program she might be willing to stay in the basement or perform some household chores down there. Betty seems to have created a positive feedback loop between in her initial desire to be free of her “babyish” fear, and her plan to desensitise herself to the basement. The fact that human beings are able to do these kinds of things is significant

Second, the thought experiment pumps certain intuitions we have about responsibility. Mele acknowledges that Betty does not choose her original set of character traits — the traits that allowed her to self-modify — but he questions whether she needs to have done this in order to be a responsible agent. He thinks that, looking at the thought experiment closely, we will be inclined to view Betty’s self-modification as a responsible act (i.e. one for which she is responsible) and, furthermore, one which allows her to be responsible for future acts. He says we will think this unless we are presented with evidence suggesting she was brain-washed or coerced into the self-modification. The fact that she has not chosen to have the original set of character traits that allows her to do this will not enter into our considerations.

To me, this suggests that Mele (in this context at least — his more considered views on responsibility are not being addressed here) endorses the following principle of responsibility:

The Intentional Self-Modification Principle of Responsibility: An agent is responsible for being the kind of agent that they are at a particular moment in time, if they have intentionally self-modified their character traits up to that point in time. (I shall call this the ISM principle for short)

As is clear, this principle makes no allusion to concepts of regressive transference or causa sui. This principle can then be used to fashion the following counterargument to Strawson (this is my own construction, not that of Mele):

• (11) If an agent is to be responsible for how they act at Tn, then they must be responsible for how they are at Tn (slight modification of (1), above).

• (12) An agent is responsible for how they are at Tn, if they have intentionally self-modified their character traits up to Tn.

• (13) Therefore, if an agent is to be responsible for how they act at Tn, they must have intentionally self-modified their character traits up to Tn.

• (14) It is possible for an agent to intentionally self-modify their character traits (as illustrated by the Betty case).

• (15) Therefore, it is possible for an agent to be responsible for their actions (from 13 and 14).

So there we have it, a direct objection to the causa sui version of Strawson’s argument. The dialectic between Mele and Strawson is illustrated in the argument map below.

Which side wins this particular debate? Unfortunately, there’s no easy way to tell. Both have presented valid arguments for their side, but both of those arguments rest on principles of responsibility that are, at best, intuitively supported. The question then becomes which principle do you find more intuitively compelling. Obviously, based on his thought experiment, Mele thinks his principle is more compelling, but Strawson, no doubt, finds his more compelling.

Is there any more satisfactory way to resolve the dispute? Unfortunately, no. Most disputes in moral philosophy end up like this: a clash between intuitively compelling principles. Still, there might be a way to resolve the dispute if we can find another principle that is more compelling than both Strawson’s and Mele’s, and that better explains our intuitions about judgments of moral responsibility. Essentially, this is what Waller tries to do when presenting his basic argument against moral responsibility. We’ll be talking about that in part two.

The Problem of Punishing the Innocent

This post looks at a classic objection to utilitarian theories of punishment. It starts by setting out the objection as clearly as possible. It then considers the potential replies to the objection.



1. The Problem of Punishing the Innocent
A utilitarian theory of punishment maintains that it is right and proper to punish people for committing a crime, if doing so serves one (or more) of a set of morally desirable goals. According to Howard Simmons’s book Moral Desert: A Critique, these goals can include the following: (i) preventing repeat offences (through incapacitation); (ii) encouraging deterrence (through signalling an intent to punish); (iii) promoting moral education (by forcefully communicating normative standards); (iv) providing emotional catharsis (for the victim or family of the victim); and (v) rehabilitating the offender.

Some of these goals may be more commendable than others (Simmons certainly thinks so), and aiming to achieve one may prevent or undermine the achievement of others. These are things that any fully-developed utilitarian theory of punishment will need to work out. But for the purposes of this post I’ll be ignoring them. Instead, I’ll be focusing on a problem that is supposed to confront nearly all utilitarian theories of punishment (with perhaps the sole exception of pure rehabilitative theories). This is the problem of innocent victims.

The problem can be put like this:

• (1) If utilitarian theories of punishment are true, it is right and proper to punish people if doing so will serve one (or more) of the following goals: (i) preventing repeat offences; (ii) deterrence; (iii) moral education; or (iv) emotional catharsis for victims of crime.

• (2) It is possible that punishing innocent people could help us to achieve goals (i)-(iv).

• (3) Therefore, if utilitarian theories of punishment are true, it could be right and proper to punish the innocent.

• (4) It is not right and proper to punish the innocent.

• (5) Therefore, utilitarian theories of punishment must be false.

In the remainder of this post, I want to see whether this problem can be dealt with by proponents of utilitarianism. Before doing so, I want to briefly check to see whether the above argument is prima facie plausible.

Looking first to premise (1), I note that this is simply a restatement of the utilitarian thesis. As such, I can see no reason to reject it. Turning then to premise (2), I appeal to the standard thought experiments that are used to support it.

Sheriff Case: Imagine that you are the sheriff in an unruly town that has recently been struck by a series of murders. The townspeople are convinced that a certain person (call them “Jack”) committed the murder. They call upon you to execute Jack in your official capacity. But you are pretty sure that Jack is innocent. You try to tell the townspeople your reasons for thinking this, but they don't seem to care. You know that if you do not carry out their wishes, the town is likely to descend into anarchy and violence. These outcomes are contrary to the goals you seek to achieve by having a system of punishment in the first place.

The suggestion is that, if you were a utilitarian, you should have no objection to executing Jack in this scenario. This seems, prima facie, a plausible claim to make.

Premise (3) follows from the conjunction of (1) and (2), so there can be no objection to it here. That leaves us with (4) as the one potential remaining source of controversy. Note here that (4) is intended to be a description of an intuitive judgment about punishing the innocent. Of course, we are entitled to question how seriously we should take such intuitive judgments. But this kind of questioning can only come after we engage in a more detailed analysis of the assumptions underlying the above argument. Looking at the surface level, we have no reason to reject it.

Since (5) would follow from (3) and (4), it looks like the argument is indeed prima facie plausible. The question we must now ask is whether, once we go beyond surface appearances, the argument remains plausible.



2. Possible Replies
So how might a utilitarian undercut the plausibility of the preceding argument? Two strategies — hinted at above — seem workable: (i) challenge premise (2) by arguing that punishing the innocent would never lead to the desirable consequences listed above; or (ii) challenge premise (4) by arguing that punishing the innocent is not necessarily wrong or that the concept of innocence is irrelevant to utilitarian justifications of punishment. Let’s consider both strategies in turn and, to make things slightly less complex, let’s assume that deterrence is the consequence we are trying to achieve with our system of punishment.

Granting that assumption, proponents of the first strategy might argue in the following manner. First, they might argue that deterrence — at least in the present context — requires the presence of an act of wrongdoing. In other words, they might argue that since our goal is to deter people from wrongdoing, we must assume that there are actual wrongdoers out there. Second, they might argue that in order for a punishment to have a deterrent effect, there must be a link between it and the act (or acts) of wrongdoing that are being deterred. That is to say, the punishment must only arise after acts of wrongdoing, not after other kinds of act.

Think of it in terms of the conditioning experiments of the behaviourist psychologists: in order for a particular behavioural response to be provoked (or suppressed) by a particular kind stimulus, there must be a reliable link set-up between the presence of the stimulus and the presence (or absence) of the behaviour. If there is no reliable link between the two, then the chances of provoking (or suppressing) the relevant behaviour are limited. So, similarly, if the link between wrongdoing and punishment is broken, we can’t expect the system to deter people from wrongdoing. This is what would happen if we started to punish the innocent.

We can put this objection like this:

• (6) The goal of a utilitarian system of punishment is to deter future acts of wrongdoing.

• (7) In order for a particular kind of behavioural response to be successfully provoked (or suppressed) by a particular kind of stimulus, there must be a reliable link between the response and the stimulus (i.e. if one happens then the other must also happen either at the same time or soon after).

• (8) A system of punishment is a kind of stimulus and an act of wrongdoing is a kind of behavioural response.

• (9) Therefore, in order for a utilitarian system of punishment to be successful, there must be a reliable link between the punishment and acts of wrongdoing.

• (10) If we start to punish the innocent, then there will be no reliable link between punishment and acts of wrongdoing.

• (11) Therefore, a successful utilitarian system of punishment cannot allow for the innocent to be punishment.

There are two objections to this argument. First, there is an obvious objection to be made to the theory of human psychology appealed to in premise (7). Even if we stay within the behaviourist tradition, we find those who object to the idea that the link between a stimulus and a response must be 100% consistent. Thus, for instance, B.F. Skinner argued that inconsistent (or, rather, probabilistic) “schedules of reinforcement” could be even more effective (addictive, in fact) for conditioning certain kinds of behaviour. If that’s right, then a system of punishment which is not 100% consistent in who it punishes might be better than one that is. I'm not an expert in behaviourist psychology so I could well be wrong about this, but it seems like a possible objection nevertheless.

The second objection is not an objection to the argument per se, but, rather, an objection to its relevance to the problem of punishing the innocent. Recall that premise (2) of the original argument merely appeals to the “possibility” that punishing the innocent might serve a deterrent goal. This mere possibility is then thought to be enough to counter utilitarianism. In other words, premise (2) is suggesting that if the utilitarian theory is not true in all possible worlds, then it is not an acceptable theory. (This focus on truth across all possible worlds is actually a common argumentative ploy in moral philosophy). Premise (2) does not make any claims about what is needed for a successful system of utilitarian punishment. So, in its present form, premise (11) does not actually defeat premise (2).

This raises a general concern about the use of logical possibility as a standard for testing ethical arguments. Is it really true that we need to prove that our ethical principles are true in all possible worlds before we can accept them? I was at a seminar just last week where one participant defended the use of this standard in ethics. At the time I didn’t voice any objections, but on reflection I worry that it sets the bar at a ridiculously high level. Admittedly, that high level is common to many philosophical disciplines (epistemology anyone?), but surely ethics needs to be more sensitive to both our inability to explore all possible worlds and to the outlandish nature of some possibilities? Surely it would be better use probability-of-happening-in-the-actual-world as a standard?

I offer these as questions for the time being since I don’t know exactly how to answer them. (Does anyone know of good papers addressing the specific issue of standards of success for ethical theories?)


3. Could it be right to punish the innocent?
We turn now to consider the second strategy in responding to the original argument. This strategy, as noted above, focuses on the plausibility of premise (4). On the face of it, this premise looks pretty robust: the idea of punishing the innocent seems about as clear an instance of a wrong as one could imagine. Thus, this seems like a less promising strategy for the utilitarian. Still, there are a couple of things that can be said in its defence.

For one thing, there is the whole idea that the appeal to “innocence” is question-begging. Why? Because it is a holdover from a retributive, desert-based theory of punishment. It has no place in a utilitarian theory. After all, the idea that some people are innocent and so shouldn’t be punished is clearly based on the notion that responsibility and desert are both coherent and significant moral concepts. It is open to a utilitarian to reject both of these notions.

They could do so by appealing to some form of hard determinism. According to hard determinism, no one is ever responsible for anything they do, and since responsibility usually goes hand-in-hand with desert, it would follow that no one ever deserves punishment. This, however, does not mean that punishment is unjustified. It could be that punishment is a kind necessary evil, something that is justified because it is needed to maintain a desirable level of social order. This is, in many ways, consistent with the traditional utilitarian approach to punishment: all harm is evil and punishment is a form of harm, but some evil is acceptable if it allows us to achieve a greater good.

Now, to be fair, hard determinism has plenty of critics: it has a number of counter-intuitive and unwelcoming implications. If you wished to use it here, you’d need to know exactly how hot the philosophical water into which you were getting was. Still, it is a possibility for the defender of utilitarianism.

Another objection to (4), this one made by Simmons in the course of defending his own utilitarian theory, focuses on the alleged unjustifiability of punishing the innocent in the extreme one-off cases. It’s these kinds of cases — such as the Sheriff one — that are most commonly used to support the problem of punishing the innocent. What’s more, it’s these kinds of cases that are not vulnerable to the “punishing the innocent is not likely to be successful”-argument that was discussed above.

But when looking at these extreme cases, Simmons argues that the intuitive pull of the “punishing the innocent is wrong”-judgment is much less robust. These are hard cases (or dilemmas), ones in which both outcomes seem undesirable and so intuitions clash. He thinks that if we really thought hard about a case like the Sheriff one, and if we accepted all the assumptions it asked us to make about the probability of certain outcomes, we might be less inclined to reject the utilitarian approach. Thus, premise (4) is at least questionable in these extreme cases.

Note that this objection shows how the sword of logical possibility cuts both ways: if the utilitarian must abandon their position if a logically possible, if improbable, scenario suggests that punishing the innocent might achieve desired outcomes, so too must the non-utilitarian abandon their intuitive judgment if a logically possible, if improbable, scenario leads us to seriously doubt our previously robust moral intuitions. Perhaps this is yet another reason to abandon the logical possibility standard.

Partridge on Performance-Enhancement in Swimming

As part of an ongoing project, I’m looking at the propriety (and regulation) of performance-enhancing drugs and technologies in educational assessment. One of the avenues of inquiry I’m pursuing is the analogy that is sometimes drawn between sports and education. The analogy typically works like this:

• (1) The use of performance enhancers in sports is wrong (it’s cheating; it’s unfair);

• (2) Educational assessments are like sporting contests;

• (3) Therefore (probably), the use of performance enhancers in educational assessments is wrong.

Now, of course, there’s a lot to challenge here. For starters, you might argue that sporting contests are not like educational assessments. While they do share some features (e.g. competitiveness, some seemingly arbitrary rules), they also differ in crucial respects. For example, when I analysed John Harris’s case for enhancement some time back, I looked at his claim that educational success was an intrinsic good, as opposed to a relative good (which is what sporting success seems to be). This kind of challenge focuses directly on the analogy (premise 2) and is common in most assessments of analogical arguments.

But one could also challenge premise (1), which is the claim about the propriety of enhancement in sport. For instance, one could argue that one of goals of sport is to enhance performance, and so it seems silly to think performance enhancement is improper in the sporting context. Proponents of this kind of argument (e.g. Savulescu) will then tend to support the idea of allowing blood-doping and other kinds of drug use in sport.

Although I’m often tempted to reject premise (1), in this post, I want to look at one interesting argument that actually supports premise (1). The argument comes from the following paper:

Brad Partridge “Fairness and Performance-Enhancing Swimsuits at the 2009 Swimming Championships: The Asterisk Championships” (2011) 5 Sport, Ethics and Philosophy 63

As is obvious from the title, the paper is focused on a specific sport (swimming) and a specific enhancement (polyurethane swimsuits). As such, it can only really support a narrower form of premise (1), which we might phrase as follows:

• (1*) The use of performance-enhancing swimsuits in the sport of swimming is wrong.

Narrowing the focus in this manner allows Partridge to make a more interesting, and perhaps ultimately more persuasive argument. But what would happen if we tried to plug this revised version of premise (1) back into the original analogical argument? Maybe very little. After all, we could just draw a specific analogy between swimming and educational assessment rather than one between sporting contests and educational assessments in general. Indeed, this might lead to a much stronger argument. We might even be able to strengthen it further by limiting it to specific forms of educational assessment. I’m not going to look at that here, but it’s something to think about nonetheless.

Anyway, on to the main event: Partridge’s argument in support of (1*).


1. Some Background
Before getting into the meat of the argument, some background is probably in order. For many years now (since the late 1990s, if I recall correctly) professional swimmers have been wearing full or partial body suits instead of the more traditional trunks in swim races. These suits improve race times by reducing drag and increasing buoyancy. They are, without doubt, performance enhancing.

In the 2009 swimming world championships, the latest and most technologically sophisticated version of these swimsuits was used to great effect by a number of swimmers. That much is obvious from the fact that 43 world records were broken in that championship alone. There were only 40 races.

This remarkable bevy of record-beating performances did not lead to widespread rejoicing within the swimming community. The suits seemed to be having an unwelcome effect on the sport. Perhaps the best illustration of the problem came from the 22 year old German swimmer, Paul Biedermann. He broke Ian Thorpe’s 400m freestyle record by improving on his own previous personal best by 7 seconds. He admitted afterwards that this would not have been possible without the suit. Soon after, full body swimsuits of the sort worn by Biedermann were banned.

When I ask students what they think of cases like this, they generally agree that there is something undesirable or unsavoury about them. For technology to play such an integral role in someone’s achievements seems wrong. For one thing, it seems run contrary to the spirit of sporting contests, which is twofold: (i) to test the limits of human performance; and (ii) to do so in a fair and equitable manner. The first of these has to do with the value of authenticity; the second has to do with the value of fairness. Partridge’s argument centres on the value of fairness and the impact that the use of performance enhancing swimsuits has on that value.


2. Relative and Absolute Outcomes
To understand the argument properly, we’ll need to make some important conceptual distinctions. But we can kick things off by looking at an easy version:

• (4) If something is unfair, it is (ceteris paribus) wrong.

• (5) The use of performance enhancing swimsuits in the sport of swimming is unfair.

• (1*) The use of performance-enhancing enhancing swimsuits in the sport of swimming is wrong.

This is pretty uninteresting, but it gives us a scaffold on which to build more interesting arguments. We’re going to take it for granted that premise (4) is true. Our concern will lie instead with premise (5) and the arguments that can be offered in it support.

We’ll start by making an important conceptual distinction between two kinds of outcomes in sporting contest. The distinction originates in the work of Thomas Douglas.

Relative Outcomes: In most sporting contests (with perhaps some rare exceptions) there is a group of competitors, or a group of teams of competitors, whose performances are ranked relative to one another. For example, in most swimming races, the performance of one individual is ranked relative to the performance of another individual: first place, second place, third place and so on. Similarly, in professional football (soccer to Americans) teams are ranked relative to one another, both in the individual matches (winners v. losers) and over the course of a season (points tables).

Absolute Outcomes: In most sporting contests, in addition to the competitors’ performances being ranked relative to one another, they are also scored or evaluated relative to some absolute standard. Indeed, it is often the case that measurement relative to the absolute standard is the way to distinguish the relative performances of the competitors. For example, in swimming races, competitors are performances are assessed against the absolute standard of time: how quickly did they manage to swim a certain distance. In soccer, number of goals scored, number of goals conceded perform similar functions.

A quick comment here on absolute standards before moving on: although absolute standards are common in most sports, I think some standards are more absolute than others. For instance, in a soccer match, while the number of goals scored is a clear objective measure of success, it is not something that easily lends itself to predictions or comparisons of success across teams. Thus, the fact that Manchester United scored 9 goals against Ipswich Town on a particular day says nothing much about their ability to score goals against other teams like Liverpool or Manchester City. Compare this with the swimmer who manages to win his race by swimming 100m freestyle in 49 seconds at a particular meeting. His achievement of that absolute outcome does say something meaningful about both his potential ability to beat another swimmer whose best time is only 55 seconds.

What relevance does the absolute/relative distinction have to our dispute about performance enhancement in swimming? It is to this question that we must now turn.


3. Achieving Fairness in Relative Outcomes
The suggestion of Thomas Douglas is that when it comes to the value of fair outcomes in sport, our concern should lie with the fairness of relative outcomes not absolute outcomes. If we have two competitors, A and B, and we end up ranking A’s performance ahead of B’s, then we ought to worry if A’s performance was only made possible by A’s possession of some unfair advantage over B. We should not worry simply if A’s absolute outcome was better than B’s. After all, the purpose of sport is primarily to distinguish between abilities to achieve absolute outcomes, not to make the same absolute outcomes available to all.

To apply this to the swimsuit example, Douglas’s argument is that Biedermann’s performance in the 400m freestyle race should only concern us if his first place finish was made possible by his having some unfair advantage over his competitors; it should not concern us simply because it broke the pre-existing world record. Obviously, the question then becomes: what counts as an unfair advantage? The concept of equal access provides some clues. If the swimsuit he wore was not equally accessible to all (e.g. if only those with a particular sponsorship deal had access to it), then it would seem like he had an unfair advantage.

There’s a certain appeal to this line of reasoning. It makes use of the concept of equality of opportunity, something that is often thought to be a inherent feature of a sporting contest. The contest itself is supposed to be pure: only those abilities and talents that make up the internal activity of the contest can be used to gain an advantage over a competitor; factors external to the sporting activity have no part to play. To put it more pithily: there is supposed to be a level playing field. If someone has privileged access to a technology, it leads to an imbalance in the playing field. This is what seems to have happened at the 2009 swimming championships

To put this into an argumentative form:

• (6) In order for a sporting contest to be fair, equality of opportunity must be attained.

• (7) If competitor A has privileged access to a technology that enhances his/her performance relative to that of B, then equality of opportunity is not attained.

• (8) Some competitors had privileged access to performance-enhancing swimsuits at the 2009 swimming world championships (SWC).

• (9) Therefore, equality of opportunity was not attained at the 2009 SWC (from 7 and 8).

• (10) Therefore, the use of performance enhancing swimsuits at the 2009 SWC was unfair (from 6 and 9).

Note the narrowness of the conclusion. It only says the use of the swimsuits at 2009 SWC was unfair; it says nothing about the use of those swimsuits in general. This is for good reason. Go back to premise (7) for a moment. This is probably the key to the whole argument. It states that privileged access is a problem, it does not say that universal access is a problem. And this makes sense since only privileged access creates equality of opportunity concerns: if everyone has access to the technology, everyone has the same opportunities.

In other words, if fairness is going to be guiding principle here, it does not follow that all performance-enhancers are unfair. A universal ban might generate fairness, but universal access would also generate fairness. A concern for fairness could work both ways.

In saying all of this, we must realise that equality of opportunity is an ideal, not a reality. There are lots of technologies, training facilities and so forth that are only available to sportspeople in wealthier countries, and yet we seem to tolerate them. Does this mean we are being hypocritical in rejecting performance-enhancers? Not necessarily. Our toleration might stem from the practical impossibility of eliminating all forms of differential access. We should still, however, be looking for ways to level the playing field. Indeed, providing access to performance-enhancers for those in underprivileged countries might be a way of achieving this. A kind of affirmative action policy for professional sports.


3. Fairness in Inter-temporal Comparisons
So much for Douglas’s argument. What does Partridge offer in response? Well, he offers an interesting riposte. The riposte is premised on the idea that there is at least one kind of relative outcome, whose fairness we would like to maintain, that could not be maintained by adopting a permissive attitude towards performance-enhancing technologies like Biedermann’s swimsuit.

Which relative outcome would that be? The answer: the inter-temporal ranking of swimmers’ performances. You see, swimmers don’t simply compete with those who happen to share the pool with them on a particular day; they also compete with their predecessors in the sport. These are the great swimmers of the past, who set the records that contemporary swimmers aim to beat.

So when Biedermann was swimming his record-breaking 400m freestyle, he wasn’t simply competing against those who were in the pool at the same time; he was also competing with the Ian Thorpe (the previous record holder) of seven years previous. And while their two performances were measured against an absolute standard (that of time), they were also, maybe more importantly, being measured relative to one another. Interested spectators and fellow participants would really want to know: whose performance was truly better? But since Biedermann’s performance was made possible by an (unfair?) technological advantage he had over Thorpe, i.e. one that was not accessible to Thorpe, this comparison could not really be made. The fact that the comparison could not be made provides one reason for adopting an anti-enhancement stance, at least on this particular issue. Why? Because to lose the ability to perform inter-temporal comparisons is to lose something of great value. As one coach commented: “we have lost the history of the sport”.

To be clear, Partridge’s argument is not just some naive and misguided lament for some golden age of swimming. He is well aware that there have been some advances in the training techniques available to swimmers and that these probably make inter-temporal comparisons an inexact process — he does note however, in passing, that swimming has been less vulnerable to technological advances that some other sports, e.g. golf. He is also aware that we may accept these advances because they bring other benefits. But two facts remain: (i) there is some value to inter-temporal comparisons (this is accepted by nearly all participants to the sport); and (ii) there has to be a point at which technological advances undermine the sporting activities we value. These two facts are the key to understanding Partridge’s argument. Let’s go through each briefly.

Turning to the second fact first, note how we don’t allow swimmers to participate with jet engines attached to their legs. Why not? Well, presumably, because if they did so they would no longer be swimming: they would no longer be engaging in the activity we value and reward. This means that there are some technological performance-enhancers we could not tolerate. But if this is true if, doesn’t it then follow that performance-enhancing swimsuits of the sort used by Biedermann could possibly be intolerable?

It does, but of course, the question then becomes: is it actually intolerable? This is where the first of the two facts comes into play. If inter-temporal comparisons are a valuable part of the sport of swimming, and if performance-enhancing swimsuits undermine that value by making such comparisons unfair, then they are actually intolerable. Why? Because they are preventing us from engaging in a particular kind of sporting activity that we rightly enjoy.

To summarise the argument (exchanging “intolerable” for “wrong”):

• (11) If some technological advance undermines a valuable aspect of a sporting activity, then the use of that technology is wrong (within that sport).

• (12) Inter-temporal comparisons of sporting (or, maybe, just swimming) performances are valuable.

• (13) The use of performance-enhancing swimsuits, such as those used in the 2009 SWCs, undermines the inter-temporal comparison of swimming performances by making such comparisons unfair.

• (1*) Therefore, the use of performance-enhancing swimsuits in the sport of swimming is wrong.

This argument is much stronger than the one we just considered from Douglas. That’s why it supports the broad conclusion of (1*), rather than the narrow conclusion of (10). It provides succor for the more staunchly anti-enhancement proponent. Yet for all that, it is far from unassailable. One could, for example, always question the value of inter-temporal comparisons. One could also, perhaps, argue that we shouldn’t cling to a particular kind of sporting activity in the face of technological development: if the technology brings greater advantages with it than did the sporting activity, then perhaps we should simply abandon the sport? Sports do occasionally go extinct or lose their appeal, and there may be no good reason to lament this fact. Who now mourns for the decline of interest in pinball, for instance?

Madness, Badness and Neuroimaging-based Responsibility Assessments (Part Three)

(Part One, Part Two)

This is the third part in a brief series on Nicole Vincent’s article “Madness, Badness and Neuroimaging-based Responsibility Assessments”. In part one, I covered the basics of criminal law and responsibility, and looked at Vincent’s suggestion that neuroimaging could play a role in assessing capacity for responsibility. In part two, I explored some of the problems with this suggestion. In particular, I explored the problem that arises from the overlap between conceptions of moral badness and mental illness.

In this final part, I’m going to consider Vincent’s defence of her original suggestion. Just to reiterate, her claim is based on the following schematic:

• Mental capacity → can & can’t → duties → culpability

Read from right to left, this schematic says that one’s culpability arises from the violation of one’s duties; one’s duties are dependent on what one can and can’t do; and what one can and can’t do is dependent on one’s mental capacities. Consequently, evidence of impaired mental capacities — which is the kind of evidence brain scans might provide — can undermine culpability.

How is this position defended?


1. Some Conceptual and Practical Distinctions
As a first step towards defending her position, Vincent distinguishes between two different responsibility concepts (see my earlier post on her STRC for more). They are: (i) capacity responsibility and (ii) virtue responsibility. She explains the distinction by reference to two fictitious children:

“Responsible” Jane: Jane is eight years old and very well behaved. She gets up in the morning, washes, dresses and prepares her lunch all on her own accord. She doesn’t get into trouble at school, she always does her homework, she helps prepare the dinner and even looks out for her older brother John. Yet despite all of this, she is only eight years old and so has not fully developed the capacities needed for blameworthiness. When she slips up or does something wrong, we do not blame her for doing so. In other words, Jane is responsible in the virtue sense of responsibility, but she is not responsible in the capacity sense of responsibility.

“Irresponsible” John: John is seventeen years old and badly behaved. He constantly plays truant from school, frequently skips his homework and avoids helping out at home. He has to woken up most morning and someone else has to clean his room and prepare his lunch. Yet despite all this, John has developed the capacities needed for blameworthiness. When he fails to do what we expect of him we blame him for this. In other words, John is responsible in the capacity sense of responsibility, but he is not responsible in the virtue sense of responsibility.

Vincent uses these examples to make the following point: if we accept the legitimacy of the virtue/capacity distinction, then we will notice that people can be assessed for responsibility on two separate grounds. First, they can be assessed on the basis of who they are (virtue) and second they can be assessed on the basis of what they did (capacity). Furthermore, when we say that someone is responsible on the grounds of who they are, nothing in particular follows about their responsibility for what they did. The two judgments are conceptually distinct.

Before we consider the implications of this distinction for Vincent’s overall argument we need to make another distinction. This distinction has to do with the different stages in the criminal trial. In particular, with what we might call the guilt determination stage and the sentencing stage. At the guilt determination stage our primary concern is with capacity responsibility: did the accused person have the requisite capacities to be held responsible for what they did? At the sentencing stage, capacity responsibility is taken for granted and we shift to consider virtue responsibility: does the person have the kind of character traits that make them a fit subject for punishment?


2. In Defence of the Capacitarian Role for Neuroimaging
Obviously, these distinctions have significant implications for Vincent’s argument. She is claiming that evidence of a reduction in capacity would be exculpatory. This is contrary to the view of Heidi Maibom, who maintained that a reduction in capacity could sometimes be inculpatory (because it could suggest that the person was morally evil). And it is also contrary to the view of Margo Reimer, who maintained that: (a) a reduction in capacity could be, at the same time, inculpatory and exculpatory; and (b) there was no principled basis for choosing between the two interpretations.

Vincent responds to these contradictory views in the following manner. First, she argues that Maibom’s claims conflate the virtue and capacity senses of responsibility. To go back to the earlier example of Conrad the psychopath, Maibom’s belief that he is culpable is a belief about virtue responsibility, not a belief about capacity responsibility. It is something that would be relevant at the sentencing stage of the criminal trial, not at the guilt determination stage. Consequently, such a belief should not affect Vincent’s suggested role for neuroimaging.

The same basic argument applies to Reimer’s claim. When she says that evidence of incapacity can be both inculpatory and exculpatory, she is failing to distinguish between the two responsibility concepts and the two stages in the criminal trial. The evidence of incapacity could be exculpatory at the guilt-determination stage and inculpatory at the sentencing stage. What’s more, the conceptual distinction between virtue and capacity responsibility provides the principled basis for shifting between these two interpretations.

To sum up, Vincent thinks her argument has done two things. First, it has identified how neuroimaging evidence could affect judgments of criminal responsibility. And second, it has shown, contrary to the views of Maibom and Reimer, that there is no genuine conflict between the inculpatory and exculpatory interpretations of neuroimaging evidence: they simply apply to different stages of the criminal trial and to different concepts of responsibility.


3. Some Quick Concluding Thoughts
Allow me to conclude with two observations.

The first observation has to do with Vincent’s claim to have dissolved the conflict between the inculpatory and exculpatory interpretations of neuroimaging evidence. I’m not convinced that she has managed to do so. Indeed, I think a clear conflict remains. In this regard, look at Vincent’s response to Reimer. In this response, she seems to be doing two things: (i) she is arguing that evidence of incapacity (such as the evidence of the psychopath’s lack of empathy) would be potentially exculpatory at the guilt determination stage but inculpatory at sentencing stage; and (ii) she is arguing that this means there is no real clash between the exculpatory and inculpatory interpretations of such evidence.

But this second is clearly not the case. Since guilt-determination is a necessary precursor to sentencing, a person who was excused at the guilt-determination stage would never reach the sentencing stage. Thus, to hold to the inculpatory interpretation of the evidence at that stage would necessarily exclude the exculpatory interpretation at the later stage. And if one judgment is necessarily excluding another, a conflict clearly remains: the judgments are not as conceptually distinct as Vincent seems to be claiming (at least, within the criminal law they are not that distinct). Furthermore, if we run with the exculpatory interpretation we fail to do justice to the intuition that is guiding people like Maibom and Reimer to the inculpatory interpretation. This would mean we ignore the main issue.

The second observation has to do with Vincent’s interpretation of the Jane and John examples. She says that because Jane is only eight years old she lacks the capacity for responsibility, and that this is true despite the evidence of good, responsible character. I think this claim adopts an questionable account of the development of capacity, and an unrealistic account of the relationship between virtue and capacity.

As regards the first of these issues, while it is true that the legal system traditionally viewed children as lacking in capacity, this is a view that is in decline. There is a push now for much more individualistic and functional assessments of capacity, as well as an increasing call for the views and interests of children to be taken into consideration in legal decisions that affect them. I think these moves are driven by an acknowledgment that a bright-lined rule like “all persons under the age of 16 (or whatever) lack capacity” fails to do justice to the differential rates of capacity-development across individuals. Why couldn't Jane just be a precocious developer of responsibility-relevant capacities?

(Incidentally, in saying this I’m not welcoming the idea that children should be held responsible or should be punished for criminal acts; I’m just pointing out that increasingly individualistic judgments of capacity in certain areas of the law could have this affect.)

As regards the second of these issues, I can’t see why evidence of virtuous character would not also lead us to conclude that the person has well-developed capacities as well. At any rate, I don’t think the disconnect is as pronounced as that suggested by Vincent.

Madness, Badness and Neuroimaging-based Responsibility Assessments (Part Two)

(Part One)

This is the second post in a brief series on Nicole Vincent’s article “Madness, Badness and Neuroimaging-based Responsibility Assessments”. In part one, we covered the basics of criminal responsibility and provided one suggestion for how neuroimaging could play a part in responsibility assessments within the criminal law.

To summarise what was said there, in general responsibility seems to track mental capacity. That is: the possession of certain properly functioning mental capacities (e.g. the capacity for rationality) is usually seen as a necessary precondition of responsibility. If these capacities are not functioning properly in a particular agent, then that agent may be excused from responsibility. Since the brain is the organ in which mental capacities are instantiated, and since functional brain-imaging reveals the workings of the brain, it would seem like brain scans could tell us whether or not the responsibility-relevant mental capacities are properly functioning.

I identified several problems with this line of reasoning at the end of part one. In particular, I said it makes dubious factual assumptions about mind-body physicalism (assumptions that some physicalists reject) and that it makes dubious normative assumptions about the link between capacities and responsibility. In this post, we look in more detail at these dubious normative assumptions, following Vincent’s arguments as we do so.


1. Three Interpretations of the Psychopath
Vincent grounds the discussion in an example. Suppose there is a man named Conrad and that he is a psychopath. As a psychopath, he lacks the capacity for empathy. Functional brain scans reveal that certain areas of Conrad’s brain — areas that have been independently connected to empathy — are functioning below or outside some statistically normal set of parameters. Suppose Conrad kills somebody. What should we conclude about Conrad’s responsibility for the killing? Vincent considers three possibilities.

The first, which seems to be her own preference, is to adopt a standard capacitarian line. If the capacity for empathy is a necessary precondition for responsibility, then evidence of Conrad’s impaired capacity counts against his responsibility. Now, to be clear, we’re not saying here that empathy is a necessary precondition of responsibility; we’re just saying that if it is, then Conrad’s incapacity could be an excusing factor. If empathy is not a necessary precondition for responsibility, then the evidence does nothing to excuse.

The second possibility, one that Vincent attributes to Heidi Maibom, analyses the brain scans from the perspective of the madness vs. badness dichotomy. These terms are used somewhat loosely here, but, roughly, the idea is that a mad person is one who has an illness that exempts or excludes them from responsibility assessments, whereas a bad person is one who has some moral failing and who ought therefore to be blamed. Maibom’s proposal, according to Vincent, is that evidence as to impaired mental functioning will reveal whether or not a person is mad or bad; and whether or not a person is mad or bad will determine whether or not they are responsible. She summarises this view in the following schematic (see previous post for details on how to read these):

• brain scan → mental capacity → mad or bad → culpability

Applied to Conrad, Maibom’s approach would work like this: a lack of empathy is a moral failing, something that makes a person bad as opposed to mad. Therefore, Conrad is responsible for causing the death. Indeed, he is many ways the worst kind of criminal, one that is completely without remorse for what he has done.

The third possibility, this time attributed to Margo Reimer, is to adopt an uneasy and unprincipled amalgamation of the other two. Reimer believes that evidence of impaired capacity could be both an excusing and an aggravating factor. It just depends on how we choose to look at it, and there is no objective or principled basis from which to make this choice.

From one perspective, Conrad’s lack of empathy could be viewed as a deficit or disorder, something that impairs him relative to the normal person. As a result, this perspective tends to excuse Conrad. From another perspective, Conrad’s lack of empathy could be seen as an evolutionary adaptation: something that allows a few non-cooperators like him to “free ride” on a society of otherwise cooperative individuals. As a result, this perspective tends to morally condemn Conrad.

Obviously, having all three of these possibilities out there is unappealing. Vincent thinks her interpretation is correct, but why? To answer that question, we must do two things. First, we must look at her reasons for dismissing or, at least, discounting the views of Maibom and Reimer. And second, we must look at her reasons for endorsing her interpretation. We’ll focus on the first of those tasks in the remainder of this post.


2. Dismissing Alternative Views
Vincent is surprisingly quick in her dismissal of Reimer. In essence, she says that Reimer’s concern — about the lack of a principled basis for choosing between the madness/badness interpretations — is nothing new. Which is to say: it doesn’t say anything in particular about how we ought to interpret neuroimaging evidence of incapacity. The very same interpretative difficulty applies to behavioural evidence of incapacity.

For example, Gary Watson famously discussed the case of Robert Alton Harris in his work. Harris was executed in 1992 for murdering two people in cold-blood in 1978. The murder was brutal, and Harris was without remorse. But Harris had also suffered extraordinary hardship, rejection and brutality during his upbringing which had no doubt moulded him into the person he became. So was Harris mad or bad? The question arises even without any neuroimaging evidence.

I’m not so sure about this quick dismissal of Reimer. For one thing, I don’t think either Maibom’s or Vincent’s interpretations say anything in particular about neuroimaging evidence. Their arguments could just as easily apply to behavioural evidence as well, so why make that a ground for dismissing an argument? I’m not sure that relevance to neuroimaging should be a guiding consideration here. Surely the issue Reimer raises is important, irrespective of whether it is new to neuroimaging evidence or not?

Moving on to her dismissal of Maibom’s interpretation, Vincent has something more interesting to say here. She says that Maibom’s argument that incapacity could actually be evidence of responsibility is question-begging against the capacitarian. How so? Well, because it simply reverses what the capacitarian thinks about the entailment relationship between judgments of madness/badness and judgments of responsibility.

In other words, Vincent thinks that Maibom must hold the following view of the entailment relationship between those sets of judgments (applied to the Conrad case):

• (7) If Conrad lacks the capacity for empathy (as revealed by a brain scan), then Conrad is bad.

• (8) If Conrad is bad, then he is responsible for what he does.

• (9) Therefore, if Conrad lacks the capacity for empathy, then Conrad is responsible for what he does.

The key premise here is (8) which suggests that judgments about madness or badness entail judgments about responsibility. This is in almost direct opposition to what the capacitarian has to say. Which is as follows:

• (10) If Conrad lacks the capacity for empathy, and if such a capacity is a necessary precondition for responsibility, then Conrad is not responsible for what he does.

• (11) If Conrad is not responsible for what he does, then he is mad (in the sense that he suffers from an excusing disorder).

• (12) Therefore, if Conrad lacks the capacity for empathy, then he is mad.

As you can see, premise (11) here suggests that judgments about responsibility entail judgments about madness/badness. This contradicts premise (8) above. This is a problem since it suggests that Maibom and the capacitarian disagree about a fundamental premise, and so Maibom cannot hope to persuade the capacitarian simply by appealing to the concepts of madness and badness.

I think what I’ve just said is a reasonably fair summary of what Vincent says in her article, but I could be wrong. I found it difficult to summarise the reasoning presented in a precise manner. Assuming it is correct, I think there are plenty of problems with it. What seems lacking here is any explicit acknowledgment of the role of norm-setting in theories of responsibility and theories of illness. To be fair, Vincent is aware of this (see post on the STRC), but allow me to explain why I think it’s particularly important here.

For starters, I think it’s true to say that whether some physical or mental incapacity is classified as a disease (madness) or a moral defect (badness) is a normative or evaluative question. It is not something that can be simply read off the physical data, it is something we impose on the data. This is a problem for Maibom’s view since it means that classifying something as a disease or a moral defect is not going to be a straightforward or value-free exercise. If we classified a lack of empathy as a disease, as opposed to as a moral defect, then there would be no real disagreement between her and Vincent. They would both reach the conclusion that Conrad was excused.

At the same time, whether or not a particular capacity is a necessary precondition for responsibility is also a normative or evaluative question. This is explicitly acknowledged in how I phrased premise (10) of the above argument. Note how the premise is a double conditional: it only applies if the capacity for empathy has previously been acknowledged as a precondition for responsibility. Plenty of people disagree about whether empathy is necessary for responsibility and their disagreement is a normative one: it is concerned with the standards or ideals we expect of a responsible agent. If we decided that empathy was not necessary for responsibility, then there would be no real disagreement between Vincent’s position and Maibom’s. They would both reach the conclusion that Conrad was responsible.

So, as you see, the disagreement between the two sides here is being driven by their answers to the norm-setting questions in theories of responsibility and theories of disease respectively. Change the answers and the disagreement vanishes. This suggests to me that the issue here is not really one of question-begging on the part of Maibom, but, rather, one of questions being ignored by both sides.

Anyway, that’s all for now. In the next post, we’ll look in more detail at Vincent’s defence of her position.

Madness, Badness and Neuroimaging-based Responsibility Assessments (Part One)

Following on from my previous post looking at Nicole Vincent’s structured taxonomy of responsibility concepts (STRC), this post begins to take a look at another article by the same author. Subsequent posts will also look at this article. The article in question is:

“Madness, Badness and Neuroimaging-Based Responsibility Assessments” in Freeman, M (ed) Law and Neuroscience: Current Legal Issues (vol. 13) (Oxford University Press, 2010)

As might be guessed from the title, the article deals with the role that advances in neuroimaging might play in responsibility assessments. Now, the phrase “responsibility assessments” is slightly ambiguous, but as becomes clear when one reads the article, Vincent is concerned with the kinds of assessment that take place within the criminal law.

In this post, I follow Vincent’s discussion by laying out the basic responsibility assessment process that is used in the criminal law, and then look at her suggested role for neuroimaging in this process. I close the post by identifying a problem with this suggested role (one that is also identified by Vincent), which is then taken up in the next post. You should note at the outset that some of the ideas in the STRC will show up in the discussion here. So you might like to take a look at the previous post on the STRC before reading this.


1. Responsibility Assessment in the Criminal Law
We hold people responsible for crimes. As students of criminal law will know, a crime is made up of two basic components or elements: the external element (traditionally called the “actus reus”); and the fault element (traditionally called the “mens rea”). These can be defined as follows:

External Element: This is the conduct, outcome or state of affairs that is deemed criminal. For example, a causal link between the actions of one person and the death of another is the external element of both the offence of murder and of manslaughter; damage to another person’s property is the external element of the offence of criminal damage; and non-consensual sexual intercourse is the external element of the offence of rape. Although this element of an offence was traditionally referred to as the “actus reus”, I think “external element” is better as criminal offences cover more than just “actions”.

Fault Element: This is the blameworthy mental state of the agent that accompanies the external element of the offence. It is usually the presence of the fault element that makes it right to hold the agent responsible for the external element. For example, intention to kill or cause grievous bodily harm is the fault element of murder; recklessness as to the outcome of one’s actions is the fault element of manslaughter, and so on. It’s worth noting that not all criminal offences have fault elements attached to them. There are such things as strict liability and no liability offences. For instance, where I come from, it is technically an offence to be found in a property with a television without a TV licence. This is true irrespective of whether one was knowingly, intentionally or recklessly without a TV licence. In other words, no excuses are tolerated (at least officially).

Because these two elements form part of most criminal offences, they provide a basic recipe or formula for criminal responsibility. It’s perhaps best to refer to this recipe as a “responsibility assessment process” just so the meaning is clear. The assessment process has, as Vincent notes, two stages to it: (i) determine whether or not the external element of the offence has taken place and can be linked to the actions of a particular agent; and (ii) determine whether or not the agent fulfills the criteria established by the fault element of the offence. (To those of you who are keeping tabs, this assessment process hearkens back to the outcome, causal, role and capacity concepts in the STRC.)

To give the example used by Vincent, suppose you come across the body of Smith in the forest. There is a gunshot wound to the head and the body has been hidden beneath a bush. The first thing you would do would be investigate whether Smith’s death by shooting could be linked back to the actions of another agent. This would be an investigation into the external element of the offence of either murder or manslaughter. To keep things simple, we’ll suppose that murder is the only relevant offence here.

Now suppose that your investigation is successful: you manage to link Smith’s death to the trigger pulling action of Jones. Then you confront the issue of blame: can Jones be blamed for Smith’s death? This, of course, would require an investigation into the fault element of the offence. There are two issues to consider here: was Jones’s conduct justifiable or was it excusable? This introduces us to two very important concepts in the criminal law:

Justification: We generally think that killing people is wrong. That is our default moral presumption. If Jones claims that his shooting Smith was justified, then he would be trying to rebut this default presumption. Pretty much the only way he can do this is if he can prove that he acted in self-defence. The best way to think about a justification is as a denial of wrongdoing.

Excuse: In contrast to a justification, an excuse is a denial of responsibility. If Jones claims that his shooting Smith should be excused, then he would be trying to show us that he does not match the criteria for responsibility. Typically, this will mean that he lacks some capacity that we expect of responsible agents or, alternatively, that a responsibility-relevant capacity that he normally has was impaired at the time of the offence.

Obviously, we would need to prove the absence of both of these possibilities before we could deem Jones responsible.

Vincent summarises the responsibility assessment process in the following schematic:

• Mental capacity → can can’t → duties → culpability

Read from right to left, the schematic says the following: an agent is culpable when they violate their duties; their duties are dependent on what they can and can’t do; and what they can and can’t do is dependent on their mental capacities. If they lack some capacity that would be necessary for the performance of their duties, then they can be excused. Alternatively, if they are justified in what they do, then they have not — despite initial appearances — violated their duties.


2. A Suggested Role for Neuroimaging
Thus far we have been dealing with some pretty basic aspects of criminal law. Now we move on to the more interesting question: how might advances in neuroimaging affect the responsibility assessment process in the criminal law? Vincent suggests two possible roles.

First, it’s possible that neuroimaging could play a role in investigating the external element of the offence. The most obvious way in which this could happen is if one of the proposed lie-detecting or mind-reading tests that are based on neuroimaging technologies are proven to work. They could, in theory, help us to figure out what happened in the past and whether an agent’s actions were linked to (or constituted) a crime. As it happens, however, such technologies are subject to a number of limitations. I’ve actually written about this in past (see my personal webpage for more), and may do so again in the future. For now, we’ll these possibilities to the side.

Second, and more relevant here, neuroimaging could play a role in investigating the fault element of the offence. In particular, it could play a role in assessing whether or not the agent has the mental capacity we require for responsibility. The rationale behind this claim can be laid out in a simple formal argument. The argument refers to "Capacity X". This is intended to stand in for any responsibility relevant capacity. No specific capacity is mentioned because different theories of responsibility focus on different capacities.

• (1) The mental capacity X (which is responsibility-relevant) is instantiated in or is some way constituted by a brain mechanism or set of brain mechanisms.

• (2) Functional neuroimaging allows to see how sets of brain mechanisms are working.

• (3) Therefore, functional neuroimaging will allow us to see how the mental capacity X is working.

The argument is not perfectly valid. I suspect an additional premise would be needed stipulating that if X is instantiated in or constituted by Y, then seeing how Y works is equivalent to seeing how X works. This might well be challengeable, or, at least, present significant hurdles for the use of brain scans in responsibility assessments. How so? Well, it could be that the mental code — i.e. the precise relationship between brain states and mental states — is both complex and convoluted. Consequently, reading how a particular mental capacity is working off of a scan showing how a particular brain mechanism is working could be quite tricky. Indeed, I suspect it is quite tricky.

This leads to another problem with the argument, namely: it presumes a very simple form of physicalism, one in which brain states, and only brain states, correlate with mental states. The problem is that one doesn’t need to be a dualist to deny this. Proponents of the extended mind thesis, for instance, would probably argue that mental states correlate with brain states and other physical states including states that are external to the body of the agent. If the extended mind thesis is true, then the argument will need to be revised.

But let’s not get bogged down in these problems here. Let’s assume, instead, that the argument is basically correct and that we can determine how a mental capacity is working from a brain scan. What then follows? In general, this kind of reasoning is attractive:

• (4) The proper functioning of mental capacity X is a necessary condition for responsibility.

• (5) Therefore, if mental capacity X is not functioning properly or is somehow impaired in a particular agent, then that agent cannot be held responsible for what they do.

• (6) Therefore, if a brain scan reveals that brain mechanism Y (which constitutes or instantiates X) is not functioning properly in a particular, then that agent cannot be held responsible.

As I say, this kind of reasoning is attractive. It gives a very direct and important role to neuroimaging in responsibility assessments. To put it most simply, neuroimaging can be used to introduce evidence of incapacity. But as attractive as it may be, it throws up some problems. First, and most obviously, sometimes evidence of impairment works in the opposite way, i.e. it makes an agent seem more blameworthy, not less. This would be when the impairment suggests that the agent is morally evil, perhaps irredeemably so. Second, and similarly, it’s not clear that the relationship between agency-capacities and responsibility assessments is a straightforward as is being suggested here. In particular, it sometimes seems like a failure to have a properly functioning mental capacity can sometimes be blameworthy and that blame for particular actions can be traced back to the blame for having this improper mental capacity.

Vincent tries to resolve (or dissolve) the first of these problems in her article. We'll start looking at this in the next post.

Vincent's Structured Taxonomy of Responsibility Concepts

Nicole Vincent

Nicole Vincent is one the best contemporary philosophers of responsibility. Her work deals with the intersection between neuroscience, criminal law, and theories of responsibility. As it happens, I originally intended to focus my research on these intersections too. Although my research focus has changed somewhat, I still try to read Vincent’s work regularly and when I do I’m always impressed by its content.

In this post, I want to share what I think is (to date) Vincent’s most significant contribution to the philosophy of responsibility: her structured taxonomy of responsibility concepts. In the first instance, this taxonomy attempts to distinguish between the various responsibility concepts that permeate the literature on this topic. Many authors have attempted similar conceptual breakdowns in the past. What makes Vincent’s attempt more interesting is that she goes on to identify the potential links (entailment relations etc.) between these responsibility concepts. I think this is a valuable exercise and hopefully you’ll think the same once you’ve read this post.

I’ve broken this post down into three main parts. The first part describes the six responsibility concepts identified by Vincent. The second part looks at Vincent’s proposed structural relationships between these concepts. And the third part considers the all-important role of norm-setting in theories of responsibility. For those who are interested, the article on which I’m basing this post can be found here.


1. The Six Responsibility Concepts
It’s long been recognised that the term “responsibility” is deployed in ordinary speech to cover a diverse set of concepts. For example, the famous legal philosopher HLA Hart once told a story about a reckless and incompetent ship’s captain whose ship was sunk. In the story, the word “responsibility” was used to describe the cause of the event, the captain’s incompetence, the captain’s duties and the captain’s liability. This level of conceptual ambiguity is unappealing.

Using Hart’s and similar stories as her guide, Vincent identifies six different concepts that tend to attract the “responsibility”-label. They are as follows:

Virtue-Responsibility: This covers descriptions of a person as being diligent, dutiful and so forth. In other words, it covers the idea of the “responsible person”, the one who has the virtuous character traits we would expect of a responsible agent.

Role-Responsibility: This covers the duties which are attached to a person in virtue of their institutional, social or moral position. In other words, it covers a person’s responsibilities: the things they are expected to do and which they are subjected to moral criticism if they fail to do. For instance, a ship’s captain is responsible for the well-being of his crew and the safety of his vessel.

Outcome-Responsibility: This covers the outcomes (events or states of affairs) for which a person is held responsible. For example, a murderer is held responsible for a murder; and a ship’s captain is held responsible for the sinking of his vessel.

Causal-Responsibility: This covers the causal links between events and states of affairs. For example, a storm might be responsible for a flood; a drought might be responsible for a famine; and so forth. In some ways, the causal sense of responsibility might be deemed metaphorical or analogical as opposed to real. But, as we shall see, causal judgments do play a crucial role in determining when and where our other responsibility concepts apply — so it’s not right to exclude it from a taxonomy of responsibility concepts.

Capacity-Responsibility: This covers the capacities (distinct from character traits) that an agent needs in order to be deemed responsible. For example, it has often been held that an agent needs a capacity for rational thought, for choice, and for voluntary decision-making in order to be responsible. The precise mix of capacities needed is not important here, all that matters is the general idea that certain capacities are needed.

Liability-Responsibility: This covers the punishments, sanctions or, more generally, the burdens that will apply to the responsible agent. For example, a person who is responsible for committing a crime, may be liable to spend some time in jail; or an employer who wrongfully dimisses an employee may be liable to pay damages to the employee.

These six responsibility concepts capture the key aspects of what we might call the responsibility ecosystem, i.e. the environment in which judgments about responsibility are actually made. Although we may have a desire to single out one of these concepts (e.g. outcome-responsibility) as being the “true” or “paradigmatic” sense of responsibility, Vincent suggests that there is little rationale for doing so. Each has an important part to play.


2. The Structural Relationships Between the Six Concepts
As I said at the outset, performing a conceptual breakdown on the idea of responsibility is nothing new, and while Vincent’s conceptual breakdown is perhaps more complete than others I have seen, her main contribution comes in her attempt to identify the structural relationships between each of the six concepts. By identifying these relationships, Vincent hopes to show how judgments about one kind of responsibility (e.g. role-responsibility) might shape or influence judgments about another kind of responsibility.

The following diagram captures the broad outlines of Vincent’s model of these structural relationships.

Here, roughly, is how the diagram is to be read: judgments about capacity-responsibility influence judgments about causal and role-responsibility; judgments about outcome-responsibility are derived from judgments about causal and role-responsibility; and judgments about liability-responsibility are derived from judgments about outcome and virtue-responsibility.

Vincent goes through these structural relationships in more detail in her article. Interestingly, she starts in the middle by looking at how outcome-responsibility depends on causal and role responsibility. From there, she works her way back to capacity-responsibility, before finally moving on to consider liability-responsibility. What follows is an abbreviated summary of what she has to say.

I. Outcome-Responsibility comes from Causal and Role-Responsibility: When we come across an event or state of affairs that seems morally troubling to us, we typically ask “who’s responsible?”, i.e.”who is responsibility for this outcome?”. In answering this question, we first try to trace the event or state of affairs to the actions of an agent or group of agents. This tracing exercise involves an assessment of causal responsibility. But causal responsibility is never enough for outcome responsibility. Why not? Because outcomes are typically the result of many causes and to single one out for particular attention is questionable unless you have some good reason for doing so. This is where role-responsibility becomes important: it determines the duties that apply to agents and makes it legitimate to single ascribe outcome responsibility to them.

II. Capacity Responsibility Shapes Causal and Role-Responsibility: An agent’s capacities determine what it is possible for them to do. As a result, responsibility concepts tend to track capacity. This happens in positive and negative ways. In the positive way, capacities tell us what kinds of roles it is appropriate for an agent to fulfill. In the negative way, a lack of capacity provides excuses for an agent. In particular, an incapacity can make it illegitimate to causally attribute an action to an agent.

III. Liability Responsibility comes from Outcome and Virtue Responsibility: Liability responsibility is, as noted above, concerned with the burdens and sanctions that it is fair to impose upon an agent. Vincent argues that the process of deciding whether and how much of a burden to impose on an agent is guided by outcome and virtue responsibility. Outcome responsibility might act as a necessary, but perhaps not sufficient, condition for liability responsibility. And then an agent’s virtue (i.e. how good or bad a person they are) determines how much of burden to impose on that agent.

Although the three structural relationships identified by Vincent are plausible, I can’t help but wonder whether other structural relationships are possible.


3. The Role of Norm Setting in Responsibility Concepts
Norm-setting plays an important role in determining the scope and applicability of the responsibility concepts outlined above. In this instance, norm setting is, unsurprisingly, the process of establishing some standard or ideal. The failure to obtain this standard opens one up to the possibility of moral criticism. Norm-setting often allows for some leeway, but it must be guided by moral considerations.

Vincent identifies three areas in which norm-setting plays a part in her structured taxonomy. The first is in relation to capacities - deciding which capacities impose duties upon an agent and which incapacities provide excuses is, in essence, a norm-setting task. The second is in relation to role responsibility - deciding which duties it is appropriate to impose on agent (depending on their social or institutional context) is a norm-setting task. Finally, the third is in relation to liability - deciding which kinds of burdens to impose upon an agent, as well as the extent of those burdens, is also a norm-setting task.

This brings us to end of this post. As we have seen, Vincent has broken responsibility down into six component concepts. She has also attempted to map the structural relations between these concepts and to identify the role that norm-setting plays in determining the applicability of those concepts. One may ask: what’s the use of all this? Vincent actually spends a long time trying to answer this question in her article (link is above), but the answer is relatively straightforward: it allows us to bring clarity to otherwise uncertain debates about “responsibility”, it shows the different kinds of question we can ask about an agent’s responsibility, and it gives us the outline of a process for resolving disputes about responsibility. For more on each of these, you’ll have to read the article.