Consequentialist Theories of Punishment (Part One)

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I’ve recently been reading Michael Zimmerman’s book The Immorality of Punishment. As one might guess from the title, the book presents a sustained critique of the moral justifiability of punishment. It does in an engaging and minimalistic style, one that is replete with formal arguments but devoid of all footnotes. I would recommend it highly, particularly if read alongside David Boonin’s denser and more scholarly (in the sense that it engages more with the available literature) work The Problem of Punishment.

Anyway, in an effort to better understand his critique, I thought I might provide an overview of the arguments Zimmerman marshals against consequentialist theories of punishment on the blog. A consequentialist theory of punishment is one that justifies punitive acts and practices (more on the distinction between these in a moment) by reference to their consequences. Usually, this amounts to the claim that punitive practices can reduce/deter harmful conduct and that since this is a good thing, all things considered, it is morally justified.

Unsurprisingly, Zimmerman begs to differ. I’ll try to explain why over the next few posts. This particular post is purely introductory in nature. It outlines what Zimmerman means when he refers to punishment, what he means when he refers to moral justification or the lack thereof, and sketches the overall goal of his critical project. Subsequent posts will look at particular consequentialist justifications of punishment and explain why Zimmerman thinks they fail.


1. What it Punishment?
Interestingly, nearly ever book or article I’ve ever read on the topic of punishment starts by carefully delineating the set of practices picked out by the term “punishment”. This is understandable: if we are going to challenge or support the practice of punishment it is a good idea to know exactly which practice(s) we are talking about. Nevertheless, I find the careful attention paid to the definition of punishment to be interesting in that it suggests that many authors fear their arguments will be misconstrued because those tasked with its interpretation will have a tendency to misapply the term. This fear may be well-founded. I admit that I myself am not entirely sure whether a person who is obliged to pay out compensatory damages is properly considered a punishee or not.

This is roundabout way of saying that Zimmerman is very particular about the kind of practice he is challenging in his work. Indeed, he dedicates his entire first chapter to the definition of (legal) punishment (something that Boonin also does, incidentally), explaining why this definitional task is necessary and carefully formulating and reformulating a particular definition.

I shall not summarise every stage in Zimmerman’s definitional machinations. Instead, I shall skip straight to the last stage and provide his final, preferred definition of legal punishment, which is (pg 20):

Legal Punishment: Person A legally punishes Person B if and only if A acts on behalf of the state in such a way that:

(1) he harms the punishee; 

(2) this harm is intended by the state; 

(3) this harm is believed by the state to be fitting - in particular, fitting to the fact, perhaps in conjunction with some other facts, that the punishee is associated with some offence; 

(4) he thereby expresses the state’s disapproval both of the offence and of the offender; and 

(5) he thereby acts in some legally official capacity.

This definition has many significant features, which Zimmerman discusses at some length. The first three conditions set out what we may call the core requirements of punishment: intended harm that is fitting. The last two, while no doubt important in the legal setting, are peripheral to this core. The definition is also interesting in that, despite the fact that five conditions are set out, it is surprisingly open-ended. This is particularly noticeable in condition (3). Notice how the fittingness relationship alluded to in this condition is not cashed out in terms of the offender’s responsibility for the offence. It is merely cashed out in terms of the offender’s association with the offence. Similarly, notice how condition (5) does not specify a particular group of legal officials with the authority to punish.

One could get bogged down in these technical aspects of the definition all day, but let’s not do that here. Let’s simply accept it and move on to consider what Zimmerman is trying to do in his book.


2. Zimmerman’s Basic Thesis about Punishment
Put somewhat crudely, Zimmerman’s basic thesis — the one that is developed at length throughout his book — is that punishment is very unlikely to ever be morally justified. To make this a little less crude, we need to do two things. First, consider the different forms that moral justification (or the lack thereof) can take. Second, consider the differences between punitive acts, practices and institutions.

On the first of these matters, Zimmerman distinguishes between something that is partly morally justified and overall morally justified. Something is partly morally justified when there is at least one moral reason that counts in its favour or when no moral reason counts against it. Something is overall morally justified when, all things considered, the weight of moral reasons comes down in its favour. Correlatively, something is partly morally unjustified whenever there is at least one moral reason counting against it. And something is overall morally unjustified whenever the weight of moral reasons counts against it. Obviously, to say that something is only partly morally unjustified is weaker than saying that it is overall morally unjustified.

That said, there are grades of moral seriousness that need to be taken into consideration when assessing the moral status of a particular act type or token. As Zimmerman sees it, something can be overall morally unjustified, without it being seriously wrong. And similarly, something can be only partly morally unjustified, and nevertheless seriously wrong. Zimmerman gives the example of a small business owner tasked with distributing bonuses at the end of the year. He asks us to suppose that the overall morally preferable decision is to distribute on the basis of talent, i.e. the most talented workers get the most money. But he then asks us to imagine that the business owner refuses to do this in order to avoid conflict and instead gives everybody an equal bonus. Given the assumptions, what the business owner did was overall morally unjustified, but it was not seriously unjustified. Degrees of seriousness in unjustifiability become particular important when Zimmerman presents his overall conclusion about punishment in the final chapter of his book. I won’t be looking at that chapter here, however.

This brings us to the second matter, namely: the distinction between punitive acts, practices and institutions. To illustrate the distinction, Zimmerman uses the analogy of taxation. There can be particular acts of taxation wherein a person has some percentage of the income they earn or the money they pay collected by the government. There can also be practices of taxation, which in effect amount to a sustained and systematic sequence of acts of taxation. Finally, there can be institutions of taxation — tax departments, officials, advisers, courts and so on — that oversee the implementation of the particular acts and practices.

The same is true of punishment. The intentional and fitting imposition of harm on an individual in response to a particular offence is an act of punishment. A sustained and systematic set of such fitting impositions of harm is a practice of punishment. And a variety of official bodies and persons might be necessary to oversee the implementation of those acts and practices.

Why does any of this matter? Well, it obviously matters when it comes to the interpreting the kind of argument that someone is offering against punishment. The problem is that people tend to conflate acts, practices and institutions in their everyday talk about punishment. So when we are presented with an argument against punishment, we must ask: is this argument about particular acts of punishment, the state-sanctioned practice of punishment, or about the institutions of punishment?

Zimmerman’s work is interesting in that it is an attack on the justifiability of all three. In fact, it is more complex than this because it speaks to both the partial and overall moral justifiability of all three. Consequently, Zimmerman argues for six theses. In the interests of brevity, I will condense these down to just two:

Partial Unjustifiability Thesis: It is highly likely that any act, practice and/or institution of punishment — past, future or present — is very seriously partly morally unjustified. In other words, it is highly likely that there is at least one very strong moral reason (possibly more) that counts against punitive acts, practices and institutions.

Overall Unjustifiability Thesis: It is highly likely that any act, practice and/or institution of punishment — past, future or present — is overall morally unjustified. In other words, it is highly likely that the weight of moral reasons count against punitive acts, practices and institutions.

3. How to Assess Consequentialist Theories
The preliminary work is now done. We know what is meant by “punishment” and we understand the nature and the targets of Zimmerman’s arguments. We can now move on to look at the arguments he offers against consequentialist theories of punishment. As I said at the outset, a consequentialist theory of punishment is any theory that aims to justify an punitive act, practice or institution by referring to its likely consequences. In most cases, this amounts to the claim that punishment is justifiable because it reduces instances of harmful conduct.

As Zimmerman notes, there are thought to be three mechanisms through which punishment can achieve this end.

Rehabilitation: By being intentionally harmed, the offender can learn the moral disvalue of the conduct in which he/she engaged and thereby improve their moral character. This will reduce the likelihood of their engaging in further acts of wrongdoing.

Incapacitation: By being intentionally harmed through involuntary detention or other means, the offender can be prevented from engaging in further acts of wrongdoing.

Deterrence: By intentionally harming people if they engage in wrongdoing, both they and others will be deterred from engaging in further acts of wrongdoing.

One thing should be noted about each of these justifications: although they have been carefully defined here to necessarily involve punishment, this need not be the case. In order to punish a person, one must intentionally harm them. But it seems plausible that one could rehabilitate, incapacitate or deter without necessarily doing this. So the key question for defenders of punitive rehabilitation, incapacitation and deterrence is whether they are more likely to be effective than their non-punitive equivalents.

To put this another way, when it comes to assessing the merits of each of the consequentialist theories of punishment, the key question to be asked is a contrastive one: is this act, practice or institution more justifiable than an alternative act, practice or institution with a similar end in mind?

We’ll see if we can answer that contrastive question with regards to the rehabilitative theory of punishment in part two.

The Ethics of Pre-Punishment (Part Three)

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(Part One, Part Two)

This post is part of a series on the ethics of pre-punishment. The series looks at whether it is permissible to punish someone for crimes they have not yet committed, but will. Although drawing inspiration from science fictional examples, such as Minority Report, the ethical questions at the heart of the series have implications for the widespread practice of preventive detention.

To date, the series has looked at the arguments found in a classic set of papers from Christopher New and Saul Smilansky. Part one covered New’s argument, which claims that there is nothing ethically improper about punishing a person before they commit a crime, although there are some obvious epistemic limitations on this. Part two looked at Smilansky’s response to New. Smilansky argued that pre-punishment is ethically impermissible because it fails to accord proper respect to a person’s capacity to refrain from morally improper conduct. Part two also looked at New’s response to this argument which pointed out that respect can pull in the opposite direction too. If someone has declared an intention to break the law, why is it not respectful to assume they will be true to their word and punish them before they do so?

As I said originally, the New-Smilansky essays are probably the classics in this particular area. But many more philosophers have chimed-in in recent years. Now, I can’t possibly look at all the arguments that have been made, but I will look at one, coming from an article by Roy Sorensen entitled “Future Law: Prepunishment and the Causal Theory of Verdicts”.

In the remainder of this post, I will cover Sorensen’s argument. I do so in two stages. First, I will consider the structure of his argument and explain how it responds to the original argument offered by New. Second, I will examine the deeper justification that Sorensen offers for his argument.


1. The Causal Asymmetry Argument
As you recall from part one (and two), New’s central thesis could be summed up as follows:

Temporal Neutrality Thesis: It is morally acceptable to punish people both before and after the commit a crime, provided we know (or believe beyond a reasonable doubt) that they will commit the crime.

Epistemic Constraint Thesis: The only thing that really prevents us from prepunishing people is that we usually lack proper epistemic access to future crimes.

Although it might tempting for critics of this position to reject the temporal neutrality thesis, Sorensen avoids doing so directly. Instead, he offers an alternative thesis that does not reject the temporal neutrality thesis outright, but tends to have its falsity as an implication.

Sorensen’s alternative thesis is that verdicts which purport to justify the imposition of a punishment — such as the verdicts reached in a criminal trial — must be causally related to the crimes that underpin them in the appropriate manner. Specifically, the crime for which the punishment is imposed must cause the verdict. We can call this the causal asymmetry thesis since it holds that crimes must cause verdicts; and verdicts cannot cause crimes. In other words, it holds that there is an asymmetry between the causal powers of crimes and verdicts:

Causal Asymmetry Thesis: A verdict of punishment (Vp) for a crime C is justified, if and only if C causes Vp; Vp cannot be justified if Vp causes C.

Before considering the deeper justification for this thesis, a couple of limitations and implications are worth noting.

First, the thesis claims that verdicts of punishment must be caused by the crimes for which the punishments are imposed. It does not claim that punishments must be caused by the verdicts. This is a subtle, but nevertheless significant, difference. Pre-trial detention is common in many jurisdictions, and that detention can be taken into consideration when a final verdict of guilt is reached. For instance, a person who served six months in jail pre-trial will have that six months included as part of the one year sentence that is finally imposed on them. Sorensen’s thesis does not challenge the propriety of this practice.

One can see why. First, it’s an extremely common practice and such practices tend to go unquestioned in some dialectical contexts. Second, and perhaps more importantly, it’s not central to the original debate sparked by New. New was arguing that punishment could be justifiably imposed pre-crime, i.e. before a crime was actually committed. He was not talking about the justifiability of punishments post-crime. Indeed, he took the justifiability of those punishments for granted. In the case of pre-trial detention, the crime has already taken place, it’s just the verdict that has not. If the pre-verdict detention is punitive, it still post-dates the crime.

Despite the understandability of Sorensen’s position, the notion that punishments can be justifiably imposed pre-verdict, despite the fact that verdicts themselves need to be caused by the crimes, is odd. Sorensen hints at this oddness when he suggests that a person who is detained pre-trial, but eventually acquitted, could say that their pre-trial detention was not a form of punishment. Conversely, the person who was eventually found guilty could say that they had been punished by the pre-trial detention and have their post-trial sentence reduced as a result. But can it really be the case that the eventual verdict has a retrospective causal effect of this sort? This seems to raise the same kinds of question as did New’s suggestion that people could be pre-punished.

The other point worth addressing before moving on is that the causal asymmetry thesis can be used to explain why punishments are thought to necessarily post-date crimes. The reason is that, from a temporal perspective, causes usually precede their effects. Thus, in the normal run of events, pre-punishment is impermissible. But if time travel is possible, this need not be the case. Consider Bruno, who is sentenced to be punished for committing a murder in the future, but escapes via a time machine into the past. The future police procure their own time machine, follow him into the past, and punish him there. This sequence of events is depicted in the timeline below, with the letter E being used to represent the events and Ts being used to represent the times at which they take place.

On the face of it, the imposition of the punishment in the past looks to justified, and this seems to be because of the causal sequence of events: Bruno’s crime causes the verdict, not vice versa. The point can be emphasised using Lewis’s famous distinction between personal time and external. As Lewis argued, in time travel cases, it is important to disambiguate the different timelines involved. As follows:

Personal Time: The sequencing of the events from the perspective of the person who travels through time. This is always linear and forward-moving. The person continues to grow old, their hair lengthens etc.

External Time: The sequencing of events from a neutral, or third-person standpoint. This follows the sequencing of historical dates such 1901, 1902 and so on.

If we are looking at things from the perspective of personal time (e.g. Bruno’s perspective), then it is indeed true that crimes must precede verdicts of punishments. But if we are looking at things from the external perspective, this need not be so. What’s going on here is that Lewis’s concept of personal time is designed to maintain the ordinary relationships of cause and effect, whereas the concept of external time is not. So the reason why it looks like punishments must post-date crimes is because we yearn for the appropriate causal sequencing, not because the temporal neutrality thesis is false.

Now, I’m a big fan of time travel and its associated philosophy — you’re talking to someone who managed to sit through the entirety of Primer here — but I take it that this example is more fun than serious. The jury is still out on whether time travel is logically/metaphysically possible and what precise implications this would have for the notion of an external and personal timeline. Still, even if it is possible, in precisely the form envisaged in Bruno’s case, there is an obvious philosophical worry. It could be that, despite what has been said, the verdict of punishment does cause the crime. This could be the case if there is a closed temporal-causal loop between all the events depicted above such that: (i) E2 (the verdict) causes E3 (the time travel); (iii) E3 causes E4 (the punishment); (iii) E4 causes E1 (the crime); and (iv) E1 causes E2.

Would such a closed temporal-causal loop pose a problem for Sorensen’s theory? Looking at the deeper justification Sorensen offers for his thesis will help us to answer that question.


2. The Need for Grounding
Sorensen’s deeper justification for the Causal Asymmetry Thesis turns on the notion of appropriate grounding. Roughly, the idea is that every truth-bearing or justifiable statement needs an appropriate grounding. That grounding can vary from case to case, but it needs to be there. In the case of verdicts of punishment, the grounding is causal in nature.

The argument that Sorensen makes would appear to have roughly the following form:

• (1) Where P is some proposition or claim, P is justified or true if and only if P is appropriately grounded in something else (G), where G is P’s object. 

• (2) A verdict of punishment, Vp, is claim that it is justifiable to impose a punishment on someone for a crime C. 

• (3) Therefore, Vp is justified if and only if it is appropriately grounded in C. 

• (4) The appropriate grounding for a claim like Vp is causal in nature. 

• (5) Therefore, Vp is justified if and only if it is causally grounded in C.

This is a tricky argument to evaluate, mainly because Sorensen doesn’t offer anything like a formal presentation of it. What’s given above is my own reconstruction, and it’s not pretty. Still, reading between the lines, I find Sorensen trying to offer defences of something like premises (1) and (4). Hence, I think it is a reasonable reconstruction of what he was trying to say.

Sorensen’s defence of (1) points to a number of analogous cases in which an appropriate grounding relationship seems to be necessary. He then inductively generalises from those cases to the principle stated in (1). He actually uses a joke as the basis for one of these cases, and I can’t resist sharing that joke here:

Colonel Henry Watterson was a newspaper editor during the late nineteenth century era of American railroad travel. As a journalist, he and his reporters were issued special railroad passes. These passes were non-transferable. This restriction was widely violated. During one crackdown, a conductor con- fronted a young man who presented the pass of a certain Mr. Smith who was a correspondent for Watterson’s paper. The suspicious conductor told the nervous man that Colonel Watterson happened to be on the same train. He escorted ‘‘Mr. Smith’’ for authentication. The conductor asked, ‘‘Mr. Watterson, is this man your employee?’’ To the young man’s amazement, the answer was ‘‘Yes’’. The conductor left. The relieved man began to effusively express his gratitude. ‘‘Compose yourself, young man. I don’t happen to be Colonel Watterson, but I am riding on his railroad pass.’’

I don’t know if that is actually funny, or whether I’ve been reading philosophy papers for so long that my sense of humour has become distorted, but nevertheless I smiled when I read that. And the cheap laugh has a payoff too. It makes a serious point about grounding relationships. As Sorensen points out, the punchline works because it reveals something important about chains of verification. One person can only vouch for the identity of another if their identity has been appropriately vouched for. The “Colonel Watterson” in this case had his identity vouched for in the same manner as Mr. Smith. And since we were unsure about the identity of Mr. Smith, there is no reason why we should be more sure of Watterson’s identity.

Similar points are made about the Liar Paradox. Sorensen contends that the reason “This sentence is false” is so problematic is that it is not appropriately grounded. The truth or falsity of a sentence must be assessed against something else, either another sentence or the external world. For instance, the reason that the sentence “there is a blue car in my driveway” is true is because it conforms with the actual state of the world. That is, the sentence is grounded in the state of the external world. The liar paradox lacks this feature: it tries to ground itself in itself. To borrow Hofstadter’s term, the sentence forms a “Strange Loop”. Instead of reaching out to the external world for grounding, it reaches back in on itself. It is this that leads to the paradox, and to Sorensen’s claim that, generally speaking appropriate grounding is needed for all claims.

This then ties into the defence of (4). The reasoning here is based on the intuitive oddness of cases in which (4) is violated, i.e to cases in which Vp is not causally grounded in its object. Consider Judge Farsighted who convicts a woman for an offence he knows she will commit upon release from prison. He knows the woman will resent her imprisonment and, upon release, will seek revenge by attacking him. Sure enough she does this when released. The police arrest her but Judge Farsighted releases her since she has already served her sentence for this crime.

The problem here is that the judge’s verdict (Vp) forms a strange loop with its supposed grounding (the attack on him). He justifies Vp by appeal to his future attack, but Vp is what causes his future attack. It just doesn’t seem right that verdicts of punishment could become self-fulfilling prophecies in this manner. Indeed, if judgments did have this effect, their nature would be radically altered. As David Duffy pointed out in the comments to part two, a speeding fine that is imposed in advance of the speeding, at the request of the putative speedster, just doesn’t have the look and feel of a punishment. Rather, it feels more like the speedster is trying to buy a permission to speed, and it looks like the person who imposes the fine is granting that permission.

Sorensen makes a similar point about forgiveness and permission: to forgive a person in advance seems like giving them a permission to do it. But, of course, all of this links back to the time travel case discussed earlier. The problem with Bruno’s scenario is that it may form a Strange temporal-causal loop. Every event in the chain seems to be appropriately grounded — in particular, the verdict is causally grounded in the crime — but the sequence of events loops back on itself. The question is whether that renders the verdict unjustified?

The answer is that it’s difficult to say. Sorensen acknowledges that there may be some benign loops or ungrounded chains. For instance, he imagines the case of the infinite recidivist who repeatedly gets one year added to their sentence for trying to escape from jail. Though the chain of events at the heart of this case is ultimately without grounding, each event within the chain has an appropriate grounding. So what’s the problem?

The analogies with the cosmological argument in the philosophy of religion are palpable here and the dialectical moves will be the same. Some people will insist that chains of this sort need an ultimate grounding, while other will argue that everything’s fine so long as the each link in the chain has an appropriate grounding. I’m honestly not sure where I come down on this issue. In any event, the worry maybe a relatively minor one since it would only really seem to arise in the case of a closed temporal loop, and such loops — at least when it comes to punishments — will be rare. To say the least.

Anyway, there is much more to Sorensen’s paper, including many more playful thought experiments and analogies, but I’d best leave it there. Hopefully, the gist of the overall argument is clear enough: pre-punishment is not (usually) morally acceptable because verdicts of punishment must be causally grounded in the crimes for which the punishments are imposed. To reverse the causal relationship between crime and verdicts of punishment would be do to something other than impose a punishment.

Doping, Cheating and the Olympic Games

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Earlier in the year I did a series of posts on the ethics of performance enhancement in sports (and education). Since the Olympic Games have just started I thought it might be worth reposting links to each of the entries in that series. This is perhaps not entirely in keeping with the ethos of the games, but is certainly an important issue in elite sports.


1. Partridge on Performance Enhancement in Swimming

2. Schermer on Enhancement and Cheating (Part One)

3. Schermer on Enhancement and Cheating (Part Two)

4. Tannjso on Enhancement and the Ethos of Elite Sport

5. Overview of the Arguments Against Doping in Sport (Part One)

6. Overview of the Arguments Against Doping in Sport (Part Two)

7. Doping, Slippery Slopes and Moral Virtues

The Ethics of Pre-Punishment (Part Two)

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(Part One)

This series of posts is looking at the ethics of pre-punishment. That is, at the moral propriety of punishing people for crimes that they have not yet committed, but will. This scenario has been popularised by the film (and short story) Minority Report, but it has been considered by philosophers as well. Furthermore, it is arguably a common practice in many parts of the world today where it masquerades under the title “preventive detention” so this is an issue of some practical import, though there may be some distinctions to be drawn between prepunishment and preventive detention.

In part one, I looked Christopher New’s argument in favour of pre-punishment. New argues for two theses, which I formulated in the following manner:

Temporal Neutrality Thesis: It is morally acceptable to punish people both before and after the commit a crime, provided we know (or believe beyond a reasonable doubt) that they will commit the crime.

Epistemic Constraint Thesis: The only thing that really prevents us from prepunishing people is that we usually lack proper epistemic access to future crimes.

New supported both theses with a thought experiment in which a man named Algy was fined for speeding before he actually sped. The fine looked to be morally acceptable because it was known (beyond a reasonable doubt) that Algy was going to commit the offence. Thus, it looked like pre-punishment was, at least in some cases, morally acceptable.

In this post, I do two things. First, I outline Saul Smilansky’s objection to New’s temporal neutrality thesis. And second, I outline New’s response to Smilansky. This is based on two articles from the journal Analysis, entitled “The Time to Punish” and “Punishing Times: Reply to Smilansky”, respectively. The wit of philosophers shines through in those titles.


1. Temporal Imbalances and Determinism
Smilansky accepts many of the key premises in New’s argument. For instance, he accepts that the pre-punishment scenario is most interesting from a non-consequentialist perspective (on the morality of punishment). This is because consequentialist theories seem to provide obvious resources for supporting punishment of the innocent, so it’s no great surprise to learn that they support pre-punishment. Furthermore, he accepts New’s epistemic claim that we can have proof beyond a reasonable doubt about future crimes. Thus, epistemically speaking, our judgments about pre-punishment and post-punishment could be on a par.

Where Smilansky disagrees with New is in the morality of pre-punishment from a non-consequentialist perspective. As I outlined at the end of part one, New’s main reason for thinking that pre-punishment is unobjectionable from a non-consequentialist perspective is derived from retributivism. As he sees it, retributivism justifies punishment on the grounds that it achieves moral balance: for every culpable wrong performed by X there must a corresponding harm imposed on X. But retributivism says nothing about the timing of the moral balance. True, in most cases we will not be aware that an imbalance has been created until after the fact so we won't be able to correct it until then, but if we are aware that it will be created in the future, acting pre-emptively to restore the balance is acceptable. This is depicted in the timeline below which depicts Algy’s punishment for speeding.

As you can see, Algy creates a moral imbalance at T3, but that imbalance is corrected at T2. Thus the state of affairs covering the events from T1 to T3 is morally balanced. The same thing could have been achieved by punishing Algy after T3, but from a moral perspective this does not matter. Morally speaking, punishment is justified on temporally neutral grounds.

Smilansky rejects this reading of the situation. He argues that there’s more to punishment than achieving moral balance. Another key justifying criterion for punishment is whether it respects persons as agents with responsibility for their actions. As agents, people have the moral capacity to make decisions for themselves. This includes a capacity to refrain from performing previously intended actions. In other words, Smilansky rejects New’s overly linear reading of the timeline in favour of a branched reading of the timeline. The branches in this timeline represent the moral opportunity to change one’s mind. This is represented for Algy below.

Smilansky’s argument is that pre-punishing Algy is objectionable because it fails to respect his moral capacity to refrain from speeding. He argues that this is also part of what makes punishing the innocent so objectionable: it fails to respect people for the choices they have made and can make. It treats them merely as a means to a more desirable end, not as morally autonomous agents capable of creating and following their own ends.

Obviously, Simlansky’s argument is tied to a particular view of the free will and determinism debate. The branching timeline that he envisages for Algy would make no sense for a hard determinist (one who believes there is really only one possible future). But, Smilansky argues, hard determinists would have a hard time justifying punishment anyway since on their worldview concepts of guilt and innocence seem to fall away. So maybe this whole dialectic is not for them; it is only for those who accept the morality of punishment. And for them, Smilansky claims, pre-punishment should be deemed unacceptable for the reasons just stated.


2. New’s Responses
New offers three responses to Smilansky’s respect argument. The first is that Smilansky’s argument could only supply justifying conditions for the punishment of actual persons, not juridical persons like corporations. New thinks that punishment of juridical persons is permissible for reasons that have nothing to do with their moral agency. Corporate agents do not have the same kind of agency as ordinary persons.

This is difficult claim to evaluate, particularly given that New spends very little time discussing it. He seems to throw it out as a possibility, and leave it at that. List and Pettit’s recent book Group Agency offers what I think is the best available discussion of corporate agency and responsibility and could be used to develop this argument. I haven’t conducted an in-depth study of the book, but as I read them List and Pettit argue that it is indeed possible to hold corporate agents responsible (like New seems to think) but that this is only because there are sufficient analogies between the conditions for individual responsibility and corporate responsibility. Thus, it may be that, contrary to what New argues, the punishment of juridical persons relies on similar agency conditions to those discussed by Smilanksy. In particular, it may rely on some close analogue to the capacity to refrain from certain actions.

New’s second response to Smilansky’s argument is rather meatier and, I think, more persuasive. New agrees with Smilansky that any theory of punishment will need to include some respect for persons as agents. He just disagrees that respecting persons agents necessarily involves respecting the possibility of them refraining from certain actions. As he sees it, if someone like Algy has declared an intention to perform a certain action and that action normal attracts punishment, we can respect him by assuming he will carry out his intention. Indeed, isn’t this more respectful than what Smilansky demands?

Smilansky’s respect for the capacity to refrain seems tantamount to assuming weakness of the will on the part of Algy, i.e. to assuming he won’t follow through on his declared intent. But weakness of the will undermines moral agency, so why should we respect it? I’ve no doubt Smilansky could respond by distancing his brand of respect from the problem of akrasia, but even if he manages this, the respect argument ends up a draw: it could just as easily support New’s position as it could Smilansky’s.

New’s final response is offer independent support for the temporal neutrality thesis. This support is provided by way of analogy with the obvious corollary of punishment, namely: reward. New asks us to imagine the Japanese government giving military honours to Kamikaze pilots before they flew on their fatal missions. Although we obviously don’t approve of such missions, New nevertheless asks us: is there anything deeply incoherent or problematic about pre-rewarding people in this manner? He thinks not. And since punishment is just the flipside of reward, there’s nothing problematic or incoherent about pre-punishment either.

This is an interesting argument, and one that I wish New developed in more detail. It is often annoying how the morality of rewarding is often left out of discussions of responsibility and punishment, despite its obvious connections to such discussions. New is to be commended for drawing out attention to it. Still, there are those who would question his assumption of symmetry between punishment and reward. I’ve certainly come across some who argue that our criteria for rewarding someone are justifiably laxer than our criteria for punishment, and that this is partly attributable to asymmetrical way in which we treat harm and benefit. We typically have much higher moral standards for avoiding harm than we do for securing benefit. Since punishment is a harm, it seems reasonable to suppose we have higher standards for its imposition than we do for reward.

Okay, that brings us to the end of this post. So far we’ve looked at the exchange between New and Smilansky. In the next post, I’ll branch out and consider the views of Roy Sorensen, who like Smilansky rejects the propriety of pre-punishment, but for a slightly different set of reasons.

The Ethics of Prepunishment (Part One)

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Scene from Minority Report

One of my favourite science fiction films of the past decade — despite the presence of Tom Cruise as lead — is Minority Report which is based on a short story by Philip K. Dick. The film depicts an imagined future in which specially-reared mutants have the ability to foresee murders. Capitalising on this ability, the police force set up a pre-crime division. This division tracks down and incarcerates people before they commit a murder. In other words, it pre-punishes people for crimes that they have not yet committed, but will.

The film is great. It’s vision of the future is fascinating, with many interesting design elements that are not central to the plot. I highly recommend it (although there is the ending...). The short story is also great, but then again a lot of Philip K. Dick short stories are.

Many potential avenues for philosophical discussion are opened up by the plot, but the one I want to focus on here is the morality of the system of prepunishment itself. Philosophers think and write about everything, so it should come as no surprise to learn that they have thought and written about this topic at length. The classic discussion was an exchange between Christopher New and Saul Smilansky in the journal Analysis in the 1990s. But several more philosophers have chimed-in in the intervening years, many directly referencing Minority Report in their work.

I want to focus on some of the arguments in this area over the next few blog posts. I’ll start today by going back to New’s classic article on the topic “Time and Punishment”. I’ll try to set out his argument as best I can in this post before going on to look at the response from Saul Smilansky in the next.


1. Some Background
Before getting into the nitty gritty of New’s argument, some background is in order. First, we should note that we are starting out with the assumption that normal punishment (“postpunishment”) is morally acceptable. In other words, it is okay to punish a person after they have committed a crime. The reason being that there is a desert-relation subsisting between the person and the crime. This relation warrants their punishment. I have covered the topic of the desert relation before.

It is the need for this desert-relation that renders punishment of the innocent (another topic I’ve covered before) so morally abhorrent. We can’t wantonly pick out innocent people and fine them, or incarcerate them or otherwise harm them simply because we’d like to, or simply because it would serve some desirable end. Innocent people don’t deserve to be treated like that. They lack the necessary desert-relation. (Or so the argument goes, at any rate).

But is the same true of people who are punished before they commit crimes? Superficially, it seems like it is: once again the desert-relation is absent. But this may be because we are viewing the situation from a temporally biased direction. If we know the person is going to commit the crime, then what’s the problem? The desert-relation does not yet exist, but it will.


2. New’s Argument for Prepunishment
No doubt, the whole notion of prepunishment will seem logically and metaphysically incoherent to many. But New wants to argue that it is not. He argues that there are no logical, metaphysical or moral impediments to pre-punishment, only practical and epistemic ones. In other words, he thinks it possible to defend the following two theses (my interpolation, based on other stuff I’ve read):

Temporal Neutrality Thesis: It is morally acceptable to punish people both before and after the commit a crime, provided we know (or believe beyond a reasonable doubt) that they will commit the crime.

Epistemic Constraint Thesis: The only thing that really prevents us from prepunishing people is that we usually lack proper epistemic access to future crimes.

To support both theses, he develops a somewhat elaborate thought experiment. One that is coherent and consistent, and in which prepunishment seems acceptable. He then defends the conclusion of the thought experiment from a variety of counterattacks.

The thought experiment is as follows:

Alaskan Speeding: Algy is a well-known speedster who intends to break the speed limit on a remote, unpatrolled Alaskan highway (Wilderness One) tomorrow morning at 10.31. He rings up Ben, a local traffic policeman, to inform him of his intention. He knows that Ben and the police do not have the resources to reach and patrol the highway at that time. He also knows that it will be possible for him to flee the jurisdiction soon after committing the offence. So he offers Ben a deal. If Ben fines him today for the speeding, before he commits the offence, he will pay the fine in full. However, if Ben waits until after 10.31 tomorrow morning, Algy will flee the jurisdiction and never pay the fine. Ben issues the fine today and the following morning Algy breaks the speed limit on Wilderness One.

New’s argument is that there is nothing objectionable about prepunishment in this case. The desert relation is present, and we have knowledge (or belief beyond reasonable doubt) as to guilt. If we still think it is wrong then we need to explain why.


3. Objections and Limitations
New deals with a variety of objections in his article. He does so in somewhat disorganised and rapid-fire manner. At least, in my opinion he does. I’ll try to cover what I think are the most interesting objections and New’s responses thereto. New’s responses highlight some significant limitations in his argument, so I’ll be covering those too.

First up is the objection that the example only seems compelling because we are punishing Algy for planning to commit an offence, not for actually committing one. There are such things as crimes of planning (e.g. the crime of conspiracy), so it is not surprising that we think it okay to punish Algy for planning to speed. New emphatically denies this interpretation. Suppose the fine that Ben imposes is exactly identical to the fine imposed for those committing the offence of speeding, suppose that it is the offence of speeding that is written on Algy’s record. The pre-punishment still seems unobjectionable. Or at least that’s what New thinks.

Related to this is the claim that Algy is being punished for attempting the offence not for committing it. This is subtly different from being punished for planning the offence. Without getting into too much detail — I’ve discussed the topic before — punishment for attempts sometimes mirrors punishment for completed offences. This might trick us into thinking we have accepted pre-punishment when all we have accepted is punishment for attempts. There’s a lot of finicky theoretical concepts to untangle here. All I’ll say is that what Algy has done — i.e. declared an intention — wouldn’t seem like enough for him to have attempted the offence. An attempt usually requires more that a declared intention. That said, if the argument for prepunishment goes through, we may be forced to reconsider how we view attempt liability.

The next objection is epistemic in nature. It points out that in order for punishment to be justified we must know that the offence has been or will be committed. In other words, judgments as to punishment must meet a knowledge criterion. But we could never meet that criterion in the case of future crimes: we could never actually know that the offence was going to be committed at the time of the punishment.

New points to several flaws in this argument. The main one being that the knowledge criterion for punishment isn’t nearly as strong as this objection purports. We are typically uncertain about what happened in the past, but our judgments that punish past conduct are still deemed to justifiable. All we need is proof beyond a reasonable doubt. Why couldn’t the same be true of the future? Why couldn’t we believe beyond a reasonable doubt that a crime was going to be committed? In fact, isn’t this exactly what is true in the case of Algy. Ben is left in no reasonable doubt as to the fact that Algy will commit the crime: Algy has told him he will; and Algy’s past record suggests that he will definitely follow through on his intention. The other point to make is that even if a relaxed version of the knowledge criterion could not be met in these cases, it is still worth speculating so as to see whether there are any moral as opposed to epistemic objections to future punishment. (This is part of the epistemic constraint thesis, highlighted above)

That brings us to the next objection, one that derives from the morality of punishment. Under consequentialist theories of the desert-relation it looks like future punishment could be justifiable since it could lead to better outcomes. But that’s not really interesting since consequentialist theories also seem to support punishment of the innocent (in certain cases) and that is deemed morally objectionable. The more interesting question is whether retributivist theories, which rule out punishment of the innocent, can force the rejection of pre-punishment.

The initial feeling is that they might. Retributivism is about achieving moral balance: an eye for an eye, a tooth for a tooth, and so on. In the case of the innocent person there is no moral disequilibrium created by their actions and hence no justification for their punishment. The same is true of Algy in the prepunishment scenario: he has not created a moral disequilibrium so punishment cannot be justified.

New thinks this is wrong. He calls for a distinction to be drawn between people who will never commit the crime for which they are punished and people who have not yet committed the crime for which they are punished. It is true that, for the former group, no moral disequilibrium is created, but it is not true for the latter. They do ultimately create a moral disequilibrium, and so do warrant punishment. It's just that it comes after the punishment, not before.

To support his point, New asks us to consider an analogy. If you buy a TV from me, you can justifiably pay for it either before or after delivery. The movement of the TV from me to you creates a disequilibrium of sorts, but as long as it is corrected at some stage it does not really matter when. The same is true of retributive punishment. The misdeeds of the punishee create the disequilibrium, but the moral books can be balanced by punishment either before or after the event.

But this reveals an important limitation in New’s argument, one that he himself recognises. Under his theory, it still must be the case that the moral disequilibrium is created. Thus, forms of punishment that would actually rule out the future performance of the crime would be impermissible. New uses the obvious example of the death penalty here, but incarceration could also have this preventative effect.

This is a significant limitation since it seems to disconnect New’s argument from the debate over preventive detention. Prison sentences are frequently extended, and terrorists detained indefinitely, because of their future risk of committing a crime. The practice is common, even more so in the aftermath of the war on terror. What’s more, preventive detention is used in medicine too, for instance in the quarantining of those with certain infectious diseases. While we could argue over the propriety of some of these preventive punitive practices, New’s argument seems to rule them all out. That looks counterintuitive: can we really not act so as to prevent future crimes?

There’s an easy solution to this: yes, we can act so as to prevent future crimes, we just can’t punish people in order to prevent crimes. In other words, we can engage in non-punitive preventive practices. But this solution looks weird in light of New’s claim that we can punish people for future crimes, provided they actually will eventually commit the crimes. New seems to allow for the commission of crimes in order to ensure moral balance. But surely it's better to avoid moral imbalance in the first place? New may not deny this. He may just be arguing for the propriety of prepunishment in an extremely limited set of cases. But then one has to wonder about the usefulness of his argument. Does it really prove anything interesting?

That pretty much brings us to the end of New’s article. We’ll look at Smilansky’s counterargument the next day.

Blinding, Information Hiding and Epistemic Efficiency

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This post is about the importance of information hiding in epistemic systems. It argues (though “argues” may be too strong a word) that hiding information from certain participants in an epistemic system can increase the epistemic efficiency of the overall system. While this conclusion is not particularly earth-shattering, the method adopted to reach it is quite interesting. It uses some of the formal apparatus from Roger Koppl’s work on Epistemic Systems, which combines game theory and information theory in an effort to better understand and intervene in certain social systems.

In what follows, I lay out some of the key elements from Koppl’s theory and then describe a simple model epistemic system (taken from Koppl’s article) that illustrates the importance of information hiding.


1. What is an Epistemic System?
An epistemic system is any social system that generates judgments of truth or falsity. The classic example might be the criminal trial which tries to work out whether or not a person committed a crime. Evidence is fed into this system via witnesses and lawyers, it is then interpreted, weighed and evaluated by a judge and jury, who in turn issue a judgment of truth or falsity, either: “Yes, the accused committed the crime” or “No, the accused did not commit the crime”. Although this may be the classic example, the definition adopted by Koppl is broad enough to cover many others. For example, science is viewed as an epistemic system under Koppl’s definition.

The goal of epistemic systems theory is to adopt some of the formal machinery from game theory and information theory in order to better understand and manipulate these epistemic system. In effect, the goal here is to develop simple models of epistemic systems, and use these to design better ones. The first step in this process is to identify the three key elements of any epistemic system. These are:

Senders: A set of individual agents who choose the messages that are sent through the system. 

Message Set: The set of possible messages that could be sent by the senders. 

Receivers: A set of individual agents who receive the messages and determine whether they represent the truth or not.

In its more mathematical guise, an epistemic system can be defined as an ordered triple of senders, receivers and messages {S, R, M}, with a formal symbology for representing the members of each set. I will eschew that formal symbology here in both the interests of simplicity and brevity. Full details can be found in Koppl’s article. I will use some elementary mathematics and pictures, such as the following, which represents a simple epistemic system with one message, one sender and one receiver. 

The system issues a judgment, and this judgment will either be true of false. Whether it is in fact true or false is not determined by the beliefs of the senders or receivers.


Senders and Receivers are viewed as rational agents, sometimes locked in strategic battles, within these systems. As such they have utility functions which represent their preferences for particular messages or conclusions and they act so as to maximise their utility. One of the key assumptions Koppl makes is that these utility functions will not usually include a preference for the truth. For instance, he assumes that scientists will have a preference for their pet theory, rather than for the true theory; or that lawyers will have a preference for evidence that supports their client’s case, not for the true evidence. In doing so, he adopts a Humean perspective on epistemic systems, believing we should presume the worst in order to design the best. He uses a nice quote from Hume to set this out:

… every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest. By this interest we must govern him, and, by means of it, make him, notwithstanding his insatiable avarice and ambition, co-operate to public good.

This assumption of knavishness is fairly common in rational choice theory and I have no wish to question it here. What does need to be questioned, however, is what represents the “public good” when it comes to the design and regulation of epistemic systems. One could argue about this, but the perspective adopted by Koppl (and many others) is that we want epistemic systems that reach true judgments. To be more precise, we want epistemically efficient systems, where this is defined as:

Epistemic Efficiency: A measure of the likelihood of the system reaching a true judgment. Either: 1 minus the error rate of the system; or the ratio of true judgments to total judgments.

So the goal is to increase the epistemic efficiency of the system. The argument we will now look at claims that information hiding is one way of achieving this.


2. The Importance of Information Hiding
The argument, like all arguments, depends on certain assumptions. One of the advantages of the formal machinery adopted by Koppl is that these assumptions are rendered perspicuous. If you think these assumptions are wrong, the strength of the argument is obviously diminished, but at least you’ll be able to clearly see where it’s going wrong as you read along.

So what are these assumptions? First, we are working with an extremely simple system. The system consists of one sender, one receiver, and two messages. It does not matter what these messages are, so we shall simply denote them as m1 and m2. We shall refer to the sender as S and the receiver as R. S must pick either m1 or m2 to send to R. R does not question whether S is right or wrong. In other words, R always assumes that the message sent by S represents the truth. This is, roughly, illustrated in the diagram below. We assume that m1 has a 0.25 probability of being true, and m2 has a 0.75 probability of being true.

The second crucial assumption relates to the payoff functions of R and S. They are as follows:

Receiver’s Payoff Function = U(m) = 1 (if m=m1) or 0 (if m=m2)

Sender’s Payoff Function = V(m) = Pr(m is true) x E[U(m)]

In other words, we assume that R prefers to receive m1 over m2. And we assume that S’s payoff function is partly determined by what he thinks is the truth, and partly determined by what he expects R’s payoff function to be (E(U) denotes expected utility. This looks like a fairly realistic assumption. Imagine, for instance, the expert witness recruited by a trial lawyer. He will no doubt wish to protect his professional reputation by picking the “true” message from the message set, but he will also wish to please the lawyer who is paying for his services. So if he knows that the lawyer prefers one message over the other, he too may have a bias toward that message. That such biases may exist has been confirmed experimentally, and they may be entirely subconscious.

This is where information hiding comes into play. Look first at the efficiency of the system when there is no information hiding, i.e. when S knows exactly what R’s payoff function is. In other words, when E[U(m)] = U(m).

If S sends m1 then: 

• (1) U(m) = 1; P(m1) = 0.25 

• (2) V(m) = P(m1) x E[U(m)] 

• (3) V(m) = (0.25) x (1) 

• (4) V(m) = .25

If S sends m2 then: 

• (5) U(m) = 0; P(m2) = 0.75 

• (6) V(m) = P(m2) x E[U(m)] 

• (7) V(m) = (0.75) x (0) 

• (8) V(m) = 0

Since we assume S acts so as to maximise his payoff, it follows that S will always choose m1 in this system. And since m1 only has a one in four chance of being correct, it follows that the epistemic efficiency of the system as whole is 0.25. Which is pretty low.

Can efficiency be improved by hiding information about R’s preferences from S? Well, let’s do the math and see. Assume now that S has no idea what R’s preferences are. Consequently, S’s adopts the principle of indifference and assumes that R is equally likely to prefer m1 and m2. In other words, in this scenario E[U(m)] = (0.5)(1) = (0.5).

If S sends m1 then: 

• (1*) E[U(m)] = 0.5 ; P(m1) = 0.25 

• (2*) V(m) = P(m1) x E[U(m)] 

• (3*) V(m) = (0.25) x (0.5) 

• (4*) V(m) = 0.125

If S sends m2 then: 

• (5*) E[U(m)] = 0.5; P(m2) = 0.75 

• (6*) V(m) = P(m2) x E[U(m)] 

• (7*) V(m) = (0.75) x (0.5) 

• (8*) V(m) = 0.375

S’s preference now shifts from sending m1 to sending m2. And since m2 has a three in four chance of being correct, the epistemic efficiency of the system is increased from 0.25 to 0.75. This is a significant improvement. And, if the assumptions are correct, illustrates one significant way in which to improve the overall efficiency of an epistemic system.

As I said at the outset, this is not a particularly earth-shattering conclusion. Indeed, it is what motivates blinding protocols in scientific experimentation. What’s nice about the result is the formal apparatus underlying it. This formal apparatus is flexible, and can be used to model, evaluate and design other kinds of epistemic system.

Is Death Bad or Just Less Good? (Part 4)

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(Part One, Part Two, Part Three)

This is the final part in my series of posts looking at the badness of death. The series works off the article by Aaron Smuts entitled “Less Good but Not Bad: In Defense of Epicureanism about Death”. In the article, Smuts defends a position he calls innocuousism, which holds that death is not bad for the one who dies.

The argument behind this is called the Dead End Argument (DEA). This argument holds that death is neither intrinsically nor extrinsically bad because it is an experiential blank. When one is dead one has no mental experiences, and only mental experiences carry value. The key premise of the DEA sets forth something Smuts calls the “causal hypothesis”:

(4) Causal Hypothesis: An event is extrinsically bad if and only if it leads to intrinsically bad states of affairs.

The causal hypothesis is challenged by defenders of the deprivation account (DA). The DA holds that death is bad because it deprives the person of the good experiences they would have had if they had remained alive. In the previous post, we saw how Smuts rejected the DA. He did so on two, interrelated, grounds. First, because it leads to absurd conclusions, such as that a person whose life is filled with positive experiences is actually living a bad life because things would have been better (however marginally) if they had made different choices. Second, because it confuses a state of affairs’ being less good with its being bad.

Despite this rejection of the DA, Smuts’s argument is not home and dry. There are three question marks still hanging over it. First, there is a worry that the causal hypothesis itself leads to absurd conclusions. Second, there is a worry that the DEA as whole would alter our attitude toward the wrongness of killing. And third, there is a worry that the DEA is incompatible with our seemingly well-founded fear of dying.

In this post, we’ll see how Smuts responds to each of these worries.


1. Is it bad to deny anaesthesia?
A long time ago — all the way back in part two — I put forth the following thought experiment (taken from Smuts):

Denying Anaesthesia: Suppose a person is undergoing surgery that will alleviate some serious condition. The surgery clearly leads to an intrinsically good state of affairs. But the surgery itself can be performed in two ways: (a) with anaesthetic; or (b) without. If it is performed without anaesthetic, the person will not die, but will be in considerable pain. If it is performed with anaesthetic, this is avoided.

I then asked the question: would it be bad (extrinsically) to deny anaesthesia to the person undergoing this surgery? Or, rather, would it be good (extrinsically) to administer the anaesthetic? The answer seems obvious: Of course it would!

This is where the causal hypothesis runs into trouble. In the scenario just described, the result of the surgery is the same irrespective of whether it is performed with anaesthetic or without. So administering an anaesthetic does not lead to an intrinsically better or worse state of affairs. Thus, it would seem that, under the causal hypothesis, denying anaesthetic is not bad and administering it is not good. Surely this is absurd?

Smuts, as I read him, offers two replies. First, he notes that whether the anaesthetic leads to intriniscally good states of affairs or not, depends on how fine-grained an analysis of the scenario you undertake. True, the outcome of the surgery is the same. But the person undergoing that surgery will be in great pain (presumably), while it is ongoing, if they are denied the anaesthetic. Experiences of great pain are intrinsically bad, and so denying anaesthetic would be extrinsically bad since it would causally contribute to such experiences. Thus, even under the causal hypothesis, denying anaesthetic would be bad. Absurdity avoided.

Second, Smuts argues that maybe administering anaesthetic is not all that good. Rather, it is far (far) less bad. He admits that this position seems counterintuitive at first glance but enjoins us to give it a chance. It’s not too bad once you get to know it. The reasoning is as follows: any state of affairs in which the administration of such anaesthetic is needed to avoid pain must be itself bad (i.e. you must be sick or dying). So is it not true to say that you’d rather not have to be anaesthetised in the first place? It’s just that, given your predicament, the surgery is necessary and so undergoing the surgery with anaesthesia is far less bad than undergoing it without.

This second point is not trivial. For one thing, it tracks the kinds of distinctions (between less good and bad, and less bad and good) that the DA failed to track. This was a major factor in the patent absurdity of the DA. Furthermore, it might explain why we have a moral duty to anaesthetise a person (if we are, say, the surgeon). Duties, Smuts argues, tend to be oriented toward preventing the bad not toward promoting the good. If administering anaesthesia is understood as promoting the good, not just as preventing the bad, then it would be less likely for us to have a duty to do it. But we do have a such a duty. So, since under his account the administration of anaesthesia is about preventing a far worse situation not about promoting a good one, we seem to have an additional reason to support the causal hypothesis.


2. The Wrongness of Killing
So much for the causal hypothesis. How about the conclusion of the DEA itself. As you recall from part one, the argument concludes that:

(7) Therefore, death is not prudentially bad for the person who dies.

Is this conclusion not wildly at odds with our views about the wrongness of killing? If it turns out that death is not bad for the one who dies, then what’s so bad about people going around and randomly euthanising other people? But isn’t that just insane?

Consider the process of reasoning here. First, one accepts the logic of the DEA. Then, one realises the clash between it and one’s beliefs about the wrongness of killing. Then one reasons: my belief in the wrongness of killing is about as solid as any belief I could possibly have (after all, it’s the foundation of every ethical theory and every human society). My belief in the DEA is rather less solid. So if the DEA clashes with my belief about the wrongness of killing, the DEA itself must be wrong.

This is tempting line of thought. Is there anything that a defender of the DEA can say in response? Smuts is somewhat cagey, but he suggests two possible lines of counterargument.

The first line highlights the distinction between something being prudentially bad and something being morally bad. An event is prudentially bad if it reduces the welfare of the person who is subject to it; an event is morally bad if it breaches some morally principle or causes some moral disvalue. The DEA is an argument about prudential badness not moral badness. The two are only equivalent under the normative position known as welfarism, which reduces all normative claims to claims about individual welfare. But welfarism is rejected by many. So it's not clear that the DEA entails that killing is okay.

The second line suggests that, even if welfarism is true, the morality of killing might be more complex than our initial gloss on it suggests. Under the DEA, death is not deemed prudentially neutral; it is deemed less good. If it were prudentially neutral, then the permissibility of killing might follow, but since it is not, it may not. We might still have an obligation to prevent less good states of affairs and so the DEA need not entail an absurdity.

Smuts accepts there is more to be said, but he leaves it there. Others have taken up this topic in more depth and I hope to look at their arguments at a later stage.


3. The Fear of Death
A final problem (for now) with the DEA is the implications it has for our fear of death. Like our beliefs about the wrongness of killing, our fear of death and dying seem pretty solid. That is to say, we seem to have good grounds for fearing our deaths. But if the DEA is true then our death is not bad for us, so why should we fear it?

There are a lot of things to be said about this. First of all, one must distinguish between death and dying. The process of dying might be painful and drawn out, i.e. riddled with intrinsically bad states of affairs, and so we might have good reasons for fearing that. Additionally, there is the fact that Epicureanism about death, at least as traditionally conceived, was all about removing the fear of death. If that’s one of the implications of the DEA, so be it.

Nevertheless, Smuts thinks there probably are good reasons to be anxious or saddened by one’s demise (though perhaps not stricken with fear at the prospect). Death may prevent us from completing our projects, or cut us down before we reach our potential. These are things to be deeply regretted. The DEA does not deny the appropriateness of such emotions. So while it may not encourage fear, it may not be all that counterintuitive.


4. Conclusion
To sum up, this series of posts has looked at Aaron Smuts’s defence of innocuousism. This is the view that death is not bad for the one that dies. Innocuousism relies on the causal hypothesis, according to which an event is extrinsically bad if and only if it leads to an intrinsically bad state of affairs. Since being dead is not intrinsically bad (because it is an experiential blank), it follows from the causal hypothesis (and some other premises) that death is not bad for the one who dies.

The causal hypothesis is challenged by defenders of the deprivation account of the badness of death. According to them, death is bad because it deprives us of states of affairs that could have been good. But as we saw in part two, the deprivation account has some absurd implications. Primarily, this is because it fails to track the distinction between less good and bad. The causal hypothesis tracks this distinction and so is to be preferred.

Nevertheless, as we saw in this post, the causal hypothesis, and innocuousism more generally, have troubling implications of their own. However, each of these can be neutralised. The upshot is that death is not bad, but it may be less good. Defenders of life extension policies will no doubt be encouraged by this, but at the same time they need not fear death as much as they might.