The Paradox of Blackmail (Part One)

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David Letterman: A famous target of an attempted blackmail

Consider the following the scenario:

Madeline’s Memoirs: Madeline is an infamous courtesan operating in Victorian London. She counts among her clients some of the most powerful establishment men in Britain. With her career on the wane, she decides to write her memoirs, which will reveal all the sordid details of her many dalliances. This will no doubt cause great scandal and (given the social mores of the time) will be the downfall of her indecorous clientele. Spotting an opportunity to make more money, Madeline offers her former clients a deal: if they pay her a large sum of money, she will keep their name out of the published version of her memoirs.

This thought experiment — which is based on the real-life case of Harriette Wilson — is an example of blackmail: Madeline threatens to do something that would upset or destabilise her clients, unless they pay her a sum of money.

Blackmail is recognised as a crime in most countries. For example, in England and Wales, blackmail is criminalised under s. 21 of the Theft Act of 1968 and carries a potential maximum sentence of 14 years imprisonment. But the fact that blackmail is criminalised is thought to be troubling by many theorists of criminal law. As they see it, there is a paradox underlying the criminalisation of blackmail. And many of them have written at length about this paradox and its possible resolution. Indeed, the volume of literature available on this one topic is frankly overwhelming.

In this series of posts, I want to consider the so-called paradox of blackmail and its possible resolutions. As I said above, the volume of literature is overwhelming, so my discussion is limited to a few idiosyncratic pieces that happened to capture my attention. This may result in some arguments and theories not getting a fair shake in this series. I apologise for that in advance. I’m still reading and learning more about the topic as I write this, and so this series can really only be counted as a preliminary stage in my own education on this topic.

Anyway, in this first post I want to do three things. First, I want to set out the alleged paradox of blackmail in as clear a fashion as I can. Second, I want to introduce the reader to a famous (but not particularly good) article by Richard Epstein, which attempts to explain why blackmail ought to be criminalised. And third, I want to formalise the argument at the heart of Epstein’s paper so to facilitate its critical appraisal in part two.


1. The Paradox of Blackmail
It is easy to conflate blackmail with extortion — indeed the offence of blackmail as defined under English law seems to do this — but it is important to distinguish them nonetheless. When it comes to the paradox of blackmail, the theoretical debate is about blackmail itself, not about extortion. Here’s the difference:

Extortion: A extorts B whenever A threatens to engage in some unlawful act that would harm B (or a third party), unless B secures some benefit for A. For example, if I threaten to beat you up unless you pay me not do so, I am extorting you because beating you up is an unlawful act.

Blackmail: A blackmails B whenever A threatens to engage in some lawful act that would be harmful or upsetting to B, unless B secures some benefit for A. For example, if I threaten to disclose information about your affair to your spouse unless you pay me not do so, I am blackmailing you because I would be within my rights to disclose that information without the demand.

No one is troubled by the criminalisation of extortion since no one believes that people should have the right to gain money or other advantage from either threatening or engaging in unlawful acts. But people are troubled by the criminalisation of blackmail since it seems to involve lawful threats and otherwise lawful acts.

The information disclosure case is the classic example of this, and Madeline’s Memoirs is a classic example of the information disclosure case. In the scenario described, Madeline is threatening to disclose information about her clients to the public at large. She is perfectly within her rights to do so: provided she is not defaming anyone (i.e. provided she is telling the truth), she is entitled to disclose information about her affairs to the public and, indeed, to make money from that disclosure through book sales. Furthermore, she is within her rights to enter a contract for silence with her former clients, provided she does not initiate it. In other words, if her former clients came to her and asked her to remain silent in return for payment, she would be within her rights to accept that payment. It is only when she couples her lawful threat to disclose the information with a demand for money from her former clients, that her actions become criminal.

This is the essence of the so-called paradox of blackmail. Two acts — (a) threatening to do what you are lawfully entitled to do and (b) receiving money for refraining from doing what you are lawfully entitled to do — are innocent in and of themselves, but when they are combined in the form of a conditional demand (Unless you do X….I will do Y) they become criminal. Why is this?


2. Epstein’s Blackmail Inc.
One potential answer to this question can be found in Richard Epstein’s article “Blackmail Inc.”. As I said in the intro, the article is not particularly good, but it was my entry point into the literature so I have some perverse sense of loyalty to it. The majority of the article is given over to setting out Epstein’s understanding of the paradox of blackmail and only a tiny portion at the end is given to resolving the paradox. Despite this, I think the article has two interesting features and I’d like to share them here.

The first is that Epstein seems to sharpen the paradox by analogising blackmail with hard bargaining. (Now may be a good time to note that Epstein analyses everything through a libertarian lens.) Consider a supermarket chain which is negotiating with a firm of apple producers for the supply of apples to their stores. In previous years, the supermarket chain was happy with the price they negotiated with the producers, but they have recently heard of a rival firm of producers who are willing to supply at a lower price. Using this fact to their advantage, the supermarket chain threaten to switch their business to the rival firm unless the old firm can undercut the prices offered by the rival firm.

Structurally, this scenario bears a lot of similarities to blackmail. There is a threat to do something that is lawful, i.e. switch business to the rival firm. This threat is coupled with a conditional demand, i.e. unless the old firm reduces the price the threat will be carried through. And this demand harms or upsets the old firm because they are forced to reduce their profit margins. But for all that, there is nothing illegal about it. We tend to accept that hard bargaining of this sort is just part of the cut and thrust of ordinary commerce. And because of the structural similarities between this lawful practice and the unlawful practice of blackmail, the problems with the criminalisation of the latter are drawn into sharper relief.

The second interesting feature of Epstein’s article is the thought experiment he sketches at the end. In order to present his argument against the legalisation of blackmail, Epstein asks us to imagine a world in which blackmail is legalised to such an extent that a corporation is set up that specialises in blackmail. This is the Blackmail Inc of the title to his article (on this side of the world we would call it Blackmail Ltd.). Such a corporation would spend all its time hunting down salacious and upsetting information about people, carefully gaining monopoly control over that information, and demanding money for its non-disclosure.

Would such a world be a pleasant one? Would it be one we ought to welcome? Epstein thinks not, and his reasons for thinking not form the basis of his argument in favour of the continuing criminalisation of blackmail.


3. The Blackmail Inc. Argument
To make his case, Epstein asks us to reorient our perspective on blackmail. Typically, we look at it from the perspective of the potential blackmailer, i.e. the person who is demanding the money or favour in order to keep quiet. But we shouldn’t ignore the perspective of the potential victim, i.e. the person who doesn’t want the information to be disclosed. As Epstein sees it, this person is engaged in a long-term systematic deceit or fraud in order to gain some reputational or tangible benefit from a third party. And the fact that they are engaged in such a level of deceit or fraud is significant.

It is significant because the legalisation of blackmail could embolden this type of deceit and fraud. And it is this emboldening which, according to Epstein, justifies the criminalisation of blackmail. We can put this in argumentative form in the following manner:

• (1) If an activity would sustain and support deceit and fraud on a massive scale, then it ought to be criminalised. 

• (2) Blackmail would sustain and support deceit and fraud on a massive scale. 

• (3) Therefore, blackmail ought to be criminalised.

Let’s talk about the premises of this argument for a bit and let’s begin with premise (1). The premise is supported by the generally accepted belief that fraud and deceit are harmful — they cause people distress and allow others to make unfair gains — and consequently are ripe targets for criminalisation. That this is generally accepted is apparent from the fact that many legal systems criminalise fraud, and its criminalisation is generally not thought to be theoretically problematic. There are other issues with this defence of premise (1), and we’ll talk about them in part two, but for now just note that it only talks about deceit and fraud “on a massive scale”, thus ruling out the criminalisation of trivial acts that might encourage minor levels of fraud or deceit. No doubt there are many such acts, flowing from social norms for instance, but we ought not to criminalise them. Only when the emboldening crosses a certain threshold will it become a target for criminalisation.

Let’s move on then to premise (2). This is defended by reference to the thought experiment involving Blackmail Inc. and to two mechanisms that Blackmail Inc. could exploit in sustaining and supporting deceit and fraud on a massive scale. The first is simply that Blackmail Inc could use its leverage to force the blackmail victim to engage in other types of fraud, or indeed other criminal acts, in order to pay them off. For example, since the victim already has their toe in the door of fraud, why not go a little further and make a fraudulent loan application, or a dodgy insurance claim, in order to pay off their blackmailers? Coupled with this, there is the possibility that Blackmail Inc could offer ongoing advice and consultation to the blackmail victim on how best to continue their fraud. Indeed, this could well be a necessary element of their business since the victim needs to be assured that the information will not slip out in any other way. So there are least two ways in which the legalisation of blackmail could support and sustain fraud on a massive scale. When we combine this fact with the principle in premise (1), we reach the desired conclusion: blackmail ought to be criminalised.

This is the basic structure and defence of Epstein’s argument. But is it any good? We’ll see in part two.

Consequentialist Theories of Punishment (Part Three)

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(Part One, Part Two)

Welcome to this, the third and final part in my series of posts on consequentialist theories of punishment. The series is working off some of the material contained in Michael Zimmerman’s book The Immorality of Punishment. The book argues for two conclusions. The first is that there are very serious moral reasons that count against the legal imposition of punishment (defined as “intentional harm that is fitting”). The second is that, all things considered, the weight of moral reasons counts against punishment.

I’m not concerned with Zimmerman’s total defence of those claims in this series. My interests are much narrower than that. I’m only concerned with how he defends those claims in relation to consequentialist theories of punishment. These are theories of punishment which seek to justify the imposition of punishment by reference to its desirable consequences, most often that of harm reduction.

There are three such theories dealt with by Zimmerman, each of which highlights a different mechanism through which punishment can achieve its harm-reductive effects. The first is the rehabilitative theory; the second is the incapacitative theory; and the third is the deterrence theory. We’ve already looked at the arguments for and against the rehabilitative theory. In today’s post we’ll look at the arguments for and against the incapacitative and deterrence theories.

Recall at the outset, as was discussed in part one, that the key to evaluating these theories is to ask a contrastive question: Is a punitive form of incapacitation/deterrence more likely to achieve the end of harm-reduction than a non-punitive form? Only if the answer is “yes” will the theories succeed in justifying punishment. This is for a simple moral reason: punishment involves the intentional harming of another human being and it is, all things considered, better not to harm than to harm.


1. The Incapacitative Theory of Punishment
According to the incapacitative theory of punishment, punitive acts, practices and institutions have a harm-reductive effect insofar as they incapacitate harm-producing people. The most common way in which this is achieved is through incarceration, which removes the harm-producing person from society. But other types of punishment can have this effect too. Most obviously, the death penalty could have an incapacitative effect.

The argument might look like this:

• (1) If punitive practices are more likely to reduce harm by incapacitating harm-producing people than non-punitive practices, then there is (at least one) moral reason counting in favour of punitive practices. 

• (2) Punitive practices are more likely to reduce harm through incapacitation than non-punitive ones. 

• (3) Therefore, there is (at least one) moral reason counting in favour of punitive practices.

The principle stated in premise (1) can be accepted for the sake of argument. Premise (2) is where most of the action is. The first problem with it is non-contrastive in nature: can punishment actually achieve the end of incapacitation? Maybe some forms can (e.g. permanent incarceration), but not all (e.g. temporary incarceration, fining or lashing). Further, it seems like there would be certain people for whom the incapacitative effect would be redundant. For example, someone who was never going to commit a crime again, either due to some general disposition or due to the exceptional nature of their crime, would not need to be incapacitated. For such people, punishment could not be justified as it would not achieve the harm-reductive end that is needed to justify it. In practice, it might be very hard to identify such people, and consequently there might be a tendency to err on the side of caution and punish most criminals as a result — Zimmerman suggests this is borne out by the practice on parole boards — but such precaution would still lead to unjustifiable instances of error.

I’m somewhat unsure about this argument. It seems to me that a certain risk of error is both tolerable and justifiable. Indeed, in law it seems like achieving the correct balance of errors (false positives to false negatives) is a constant goal of the system. The trade-off would be the all-important question: are we achieving a sufficient harm-reductive effect to offset the damage done by unjustifiable imprisonment? But this might be a very difficult question to answer in the absence of any ability to identify those for whom punishment has the desired effect and those for whom it does not. Maybe that’s what Zimmerman was getting.

The second problem with premise (2) is probably more telling, though once again I’m somewhat uncertain about it. This problem is contrastive nature: what possible advantage could accrue from punitive incapacitation compared to non-punitive forms? Zimmerman thinks there is none: punishment adds nothing here. It’s difficult to evaluate this argument since Zimmerman doesn’t sketch what he thinks a non-punitive form of incapacitation would look like. To me, it seems like any form of incapacitation would be somewhat punitive since it would involve the elimination of certain choices and the undermining of autonomy. This would be true even in cases of incarceration in a very pleasant environment. And even there problems arise. If the environment is made too pleasant — e.g. if the incarcerated person can interact with a whole group of other prisoners, work in rewarding jobs and so forth — it could open up opportunities for further harmful conduct and thereby undermine the incapacitative effect. Indeed, this happens in contemporary prisons where conditions are far from non-punitive. So we have to wonder about this part of Zimmerman’s argument.


2. The Deterrence Theory of Punishment
According to the deterrence theory of punishment, punitive acts, practices and institutions can be justified in terms of their deterrent effect. In other words, they can be justified because they discourage would-be criminals from engaging in harmful conduct. This satisfies the goal of harm-reduction. The argument runs as follows:

• (4) If punitive practices are more likely to deter would be criminals than non-punitive ones, then there is (at least one) moral reason counting in favour of punitive practices. 

• (5) Punitive practices are more likely to deter would be criminals than non-punitive ones. 

• (6) Therefore, there is (at least one) moral reason counting in favour of punitive practices.

Again, we can skip over premise (1) here and focus our attention on premise (2). In a non-contrastive sense, it seems to be undeniably true that punishment has a deterrent effect. Zimmerman concedes as much. There is a common sense argument for this. To take just one example, would you break the speed limit if you knew that getting caught would result in an automatic five year prison sentence? No doubt the probability of getting caught will factor into the decision too, but I have to say that, from my perspective, an automatic five-year sentence for speeding would make me far less likely to break the limit. In addition to common sense, there seem to be empirical cases backing up the deterrent effect of punishment. Zimmerman cites the case of Singapore, which imposes the death penalty for a wide range of offences, and has a very low crime rate (presumably as a result of punitive practices). Unfortunately, no proper social-scientific analysis of the data is conducted, but the claim is certainly not implausible.

So there is good reason to think that punitive practices have a deterrent effect. But are there non-punitive practices that could be equally as effective? One could argue that punishment is really not needed in order to achieve the deterrent effect. Rather, it is the threat of punishment that is needed. To return to the speeding example, my decision not to speed is guided by the threat of five year imprisonment, not by the actual fact that I have been imprisoned for five years.

The problem with this line of reasoning is that it is very difficult to see how the threat of punishment could have the deterrent effect without there being, at least some, occasional cases of actual punishment. In order to be effective, the threat needs to be credible, and if punishment is never imposed it couldn’t really be credible. One possible source of salvation is fake punishment. In other words, the threat could be made credible by giving people the illusion that they will be punished. However, this would seem to require a massive, and probably unsustainable, conspiracy in order to work. Thus, it seems more likely that an actual system of punishment would be more effective as a deterrent than a fake one.


3. Punishing the Innocent
Perhaps surprisingly then, Zimmerman finds the deterrent argument to be successful. Obviously, this is not a welcome conclusion given the overall project of his book. So what does he do to avoid it? Predictably enough, he falls back on the old problem of punishing the innocent. Ostensibly, this is a problem that works against all consequentialist theories of punishment, but since deterrence is the only remaining candidate we’ll focus on that.

I’ve discussed the problem at greater length before. In essence, it boils down to this: if punishment is to be justified in terms of its deterrent effect, then one could justifiably punish the innocent on this basis. Why? Because the goal is achieving the greatest level deterrence and punishing the innocent as well as the guilty would have a greater deterrent effect than punishing the guilty alone. But there are serious moral reasons against punishing the innocent, so if a deterrence-based justification allows for this, there must be something wrong with that justification.

In effect, this is a slippery slope argument. It claims that embracing the deterrence principle will lead, either logically or causally, to the unpalatable consequence of punishing the innocent. As follows:

• (7) If we accept the deterrence principle of punishment, then we must also accept that it is okay to punish the innocent. 

• (8) It is not okay to punish the innocent. 

• (9) Therefore, we ought not to accept the deterrence principle.

There are a variety of responses open to the proponent of deterrence. The first is to bite the bullet and accept that punishing the innocent is okay. I looked at that possibility in my earlier post on this topic. The other is to argue that there is some logical or causal blockage that prevents the slide from deterrence to punishing the innocent. I’ll look at those possibilities here.

From the causal perspective, one could argue that punishing the innocent is unlikely to have a deterrent effect. Indeed, punishing the innocent may serve to reduce the deterrent effect of punishment, particularly if it is done in a heavy-handed fashion. After all, if our likelihood of being punished was the same irrespective of whether we had engaged in harmful conduct or not, we would lose the incentive to forbear from harmful conduct. Zimmerman acknowledges this point, but thinks it would only imply that governments should be careful in how they punish the innocent, not that they wouldn’t be justified in doing so.

From a logical perspective, one could argue that there’s no obvious inconsistency created by introducing a special clause in the deterrence principle that excludes punishment of the innocent. We would achieve a sufficient deterrent effect from punishing the guilty anyway, so why we would need to take the unwelcome step of punishing the innocent? For Zimmerman, the problem with this argument is that it assumes it is easy to justify punishing the guilty. But he thinks this isn’t the case and he dedicates subsequent chapters of his book to showing why. Unfortunately, those chapters lie beyond the scope of this series, so I’ll have to leave it there. Read the book if you want more.

To sum up, Zimmerman thinks that neither the incapacitative nor the deterrent theory of punishment provides a satisfactory justification for punitive practices. The incapacitative theory fails because non-punitive incapacitative practices are possible and they would be more justified than punitive ones. In my analysis above, I expressed some doubts about this by wondering whether non-punitive incapacitation could really exist. As regards the deterrence theory, this seems much more promising since there do not appear to be viable non-punitive alternatives. Nevertheless, Zimmerman thinks that even the deterrence theory has its problems because it justifies punishing the innocent. But, as we just saw, there may be some reasons for doubting that too. So, I’m a little more sanguine about the deterrence theory than Zimmerman is.

Consequentialist Theories of Punishment (Part Two)

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(Part One)

This is the second part in a brief series of posts looking at consequentialist justifications for punishment. The series works off some of the material contained in Michael Zimmerman’s book The Immorality of Punishment. As explained in part one, Zimmerman uses this book to defend two theses about the nature of legal punishment. The first — the partial unjustifiability thesis — holds that there is at least one serious moral reason (possibly more) that counts against punitive acts, practices and institutions. The second — the overall unjustifiability thesis — holds that the weight of moral reasons is highly likely to count against punitive acts, practices and institutions.

What I want to do here is see how those theses pan out when it comes to consequentialist theories of punishment. In other words, I want to see if there are serious moral reasons that count against such justifications of punishment. As we saw the last day, consequentialist theories of punishment typically justify punishment by pointing to its harm-reducing effects. This is thought to be achievable in one of three ways: (i) through punitive rehabilitation; (ii) through punitive incapacitation; and (iii) through punitive deterrence. In order for these practices to count as “punishment”, they must involve the intentional imposition of fitting harm.

And therein lies the problem. Key to the success of any one of these three theories is its ability to answer (in the affirmative) a contrastive question: Is a punitive form of rehabilitation/incapacitation/deterrence more likely to be successful than a non-punitive form? The question is necessary since non-punitive forms of rehabilitation/incapacitation/deterrence are possible and, if more likely to be successful, will be more morally justifiable than punitive ones. This is for simple moral reasons: it’s better not to harm someone than to harm them.

In this post, we will see how the rehabilitative theory of punishment fares when it comes face-to-face with the contrastive question. The analysis will be divided into two sections. First, we will look at educative approaches to rehabilitation and see whether they can justify punishment. Second, we will look at non-educative approaches to rehabilitation.


1. Rehabilitation via Moral Education
One way in which punishment is thought to achieve the goal of harm-reduction is through the moral education of the punishee. The reasoning is as follows. By engaging in conduct that causes harm (i.e. by engaging in criminal activity of some kind) an offender has signalled a lack of moral knowledge. Only someone who was not aware of the decisive moral reasons that counted against the harmful conduct would have engaged in it. Punishment can be used to make them aware of these reasons. Hence, punishment can be used to morally educate an offender, which in turn can reduce instances of harmful conduct.

To be sure, this reasoning is far from flawless. As Zimmerman notes, it only works if two preliminary conditions are met.

The Unawareness Condition: The punishee must be genuinely unaware of the moral reasons that counted against his conduct prior to punishment. If he learned them immediately after committing the offence and was deeply repentant, punishment would not be needed.

The Receptivity and Responsiveness Condition: The punishee must be both receptive and responsive to the educative effect of punishment. In other words, they must be capable of recognising and responding to moral reasons. Arguably, this condition is not met in the case of many offenders. For example, psychopaths are thought to be peculiarly unreceptive to moral reasons.

Zimmerman argues that it will be difficult to tell whether those conditions are actually met in many cases. But let’s assume that the two conditions can be met and identified and see what follows. Presumably, the rehabilitative defender of punishment would offer something like the following argument:

• (1) If punitive acts are more likely to achieve the end of moral education than alternative non-punitive acts, they can be (at least partly) justified in terms of their harm-reducing effect. 

• (2) Punitive acts are more likely to achieve the end of moral education than alternative non-punitive acts. 

• (3) Therefore, punitive acts can be (at least partly) justified in terms of their harm-reducing effect.

There are certain issues with the way in which premise (1) is formulated, but we’ll talk about those in a minute. The bigger problem, at least as Zimmerman sees it, is that premise (2) is false. Punitive acts are not more likely to achieve the end of moral education than alternative acts. At an empirical level, although some punishees may learn an important lesson from their incarceration (or other form of punishment), the high rates of recidivism suggest that this is not a general truth.

Furthermore, even in principle, it’s not clear exactly how intentionally harming people will make them learn their moral lessons. A common suggestion is that whenever the harm imposed matches the harm involved in the offence, the punishee will learn, not just in the abstract, but in their “gut” why their action was morally wrong. This has an air of plausibility about it, but problems remain. For starters, it would need to be demonstrated that this really is the case. In addition, many forms of punishment do not attempt to replicate perfectly the harm imposed by the offence, nor is it clear that it is desirable that they do so. For example, how do we replicate the harm imposed by a serial rapist? Would we wish to do so? Admittedly, there are some who think we should, but it seems like doing so would create a disturbing level of cruelty in the heart of the criminal justice system.

For these reasons, the argument from moral education seems to fail. But there is an escape for its defender. This is to argue that the version of the argument that I have presented misconstrues their claim. As I have phrased it, premise (1) is all about justifying individual punitive acts by reference to their educative effect. But this is not the argument that is being made. A proponent of educative rehabilitation could concede that individual punitive acts are unlikely to have the desired effect, and argue instead that the cumulative effect of a sustained and systematic series of such acts could have the desired effect. This would lead to the reformulation of premise (1):

• (1*) If a punitive act or sequence of punitive acts is more likely to achieve the end of moral education than alternative non-punitive acts (or sequences thereof), they can be (at least partly) justified in terms of their harm-reducing effect.

The problem is that even if the premise is reformulated in this manner, it is no more likely that the ensuing argument will be successful. If an offender is repeatedly punished, it seems more likely that they will grow bitter and resentful of the system that punishes them, or, perhaps worse, more battle-hardened and less worried about being punished for engaging in harmful conduct. Indeed, this seems to be borne out by the current status of system (and the level of recidivism involved (though one would like to see some figures on this just to be sure).


2. Non-Educative Rehabilitation
The argument we looked at spoke to the role that punishment could play in the moral education of the punishee, and to the role that this could play in rehabilitating character and reducing future harmful conduct. A more cynical rehabilitative theory might argue that punishment could be effective in changing behavioural dispositions, even if it did nothing to improve moral character. For example, it might argue for a form of punishment based on aversion therapy. In aversion therapy, a subject is repeatedly presented with a stimulus that is paired with an unpleasant or noxious event. The idea is that over time they will learn to associate the stimulus with the unpleasant event, and thereby become averse to it. It is often used in cases of addiction. This type of therapy would count as punishment since the unpleasant event would be intentionally harmful.

Could a pro-punishment argument, using this kind of rehabilitative practice as its basis, be made? Well, sure it could. We’d just have to adjust the premises from the moral education argument and make them speak about behavioural alteration instead. But we’d still run into the same problem, or so at least Zimmerman argues. The notion that we could successfully rehabilitate people using something like aversion therapy is purest fantasy, as best he can tell.

But this is just a “put-up or shut-up” argument. It merely challenges defenders of rehabilitation to show that their methods can be successful. There is always the danger that they actually do put up and thereby shut you up. So, unsurprisingly, Zimmerman argues that such methods are always likely to be unsuccessful. He does on the grounds that a rehabilitative punishment, like aversion therapy, relies on the mistaken assumption that criminal behaviour is attributable to some individual pathology that can be fixed or cured. This assumption is mistaken. It is far more plausible to think that criminal behaviour is attributable to a complex set of individual, genetic and environmental causes. Thus, a therapeutic intervention that only targets individual pathologies is always likely to fail.

I think this is difficult argument to evaluate. I would certainly concede to Zimmerman that the causal basis of behaviour is a complex set of individual and environmental factors, but I’m not sure it follows that rehabilitative interventions targetting the individual are thus unlikely to be successful. It seems plausible to me that even if there is a complex set of causal conditions behind any particular criminal act, preventative interventions could be targetted at either the individual and environmental level and still be successful. For example, heart disease might be attributable to a complex set of individual factors (no exercise, high fat and salt diet) and environmental triggers (sedentary pleasures and readily available high fat, high salt food). But even so, it’s possible that interventions targetted at one level or the other might play some role in reducing heart disease. The same could be true of interventions targetting criminal behaviour.

Where Zimmerman seems to be on firmer ground is in his contrastive evaluation of rehabilitative punishment. Even if something like aversion therapy could be successful, it would still need to be shown to be more effective than non-punitive forms of rehabilitative therapy. This seems like a far more difficult claim to prove.

To sum up, rehabilitative theories of punishment are unlikely to provide sufficient justification for punitive acts, practices or institutions. This is for two main reasons. First, it seems implausible, given what we currently know about the effects of punishment, to think that it can be effective in changing moral character or behavioural dispositions in the manner required. Second, it seems implausible to think that punitive acts and practices are more likely to have the required rehabilitative effect than non-punitive ones. Indeed, this conclusion is more in keeping with typical discussions of rehabilitation, which often paint it as an alternative to punishment, not as an instance of it.

That’s it for now. We’ll look at the other consequentialist theories of punishment the next day.

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.