Rethinking The Ends of Harm

In The Ends of Harm, Victor Tadros claims that the general justifying aim of the criminal law should be general deterrence. He also takes seriously that we cannot use people as a means, and thus he argues that we may only punish people in the name of general deterrence who have a ‘duty’ to suffer. Tadros claims that this duty arises as follows: An offender initially has a duty not to harm the victim. If the offender violates that duty, the offender still has a duty to stop the harm from occurring (so that, for example, an offender would have to jump in front of his own bullet). And if the harm does occur, then the offender has a duty to rectify that harm. This duty to rectify, argues Tadros, requires the defendant not only to compensate the victim but also to protect the victim to the extent that he would have been able to have been harmed to prevent the threat from occurring. Tadros further advances intricate arguments for why the state may therefore punish the offender to protect other potential victims to the extent of the offender’s duty to rectify. This symposium contribution seeks to explore three problems with Tadros’ analysis, ultimately arguing that Tadros’ theory fails on its own terms. First, attempts present a substantial problem for Tadros’ regime because attempts do not give rise to duties to prevent harm because there is no harm to be prevented. Tadros’ attempt to account for attempts, as completed offenses of diversions of security resources, ultimately leads to punishments that bear little resemblance to the crime attempted. Such a wildly counterintuitive result creates problems for a regime premised on general deterrence, which must be understood and respected. Second, Tadros’ regime will often exempt the rich from suffering criminal punishment. Tadros claims that duties to prevent harms from occurring (by jumping in front of bullets) are only enforceable when compensation will be inadequate. However, affluent offenders may be able to fully compensate. Moreover, since the scope of the duty to suffer will be determined by what remains of the duty after the victim is compensated, affluent offenders will be able to compensate more and thereby suffer less. Again, the actual sentences will thereby bear little resemblance to the rationale for criminalization, thus threatening the deterrent message of the law. Moreover, a system that exacerbates distributive inequalities will not achieve public respect. Third, Tadros cannot justify taking the duty that the defendant owes to the victim and forcing the victim to transfer this asset to the state. In his quest to articulate a theory that does not impermissibly use defendants, he ultimately endorses a theory that impermissibly uses their victims. He thus fails to achieve the very goal he sets for himself, which is to achieve general deterrence without impermissibly using anyone.     

Public Reason and the Need to Identify State-Relevant Desert

Plausible retributivist justifications for punishment assert that the commission of a moral wrong creates a pro tanto reason to punish the person who committed it. Yet there are good case-based and theoretical reasons to believe that not all moral wrongs are the proper subjects of criminal law or that they are within the proper domain of the state. This article provides these reasons, which suggest that a plausible retributivist justification for punishment must make distinctions between state-relevant and non-state-relevant moral wrongs and (consequently) state-relevant and non-state-relevant desert. The article makes the case for Rawlsian public reason as a plausible method for making these distinctions.     

Rehabilitating Retributivism

This review essay of Victor Tadros’s new book, “The Ends of Harm: The Moral Foundations of Criminal Law,” responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve – to suffer? to be punished? something else? Second, what does it mean for them to deserve it? That is, what is the normative force or significance of valid desert claims, either with respect to retributivist desert in particular or with respect to all forms of desert? Because the answers that this essay offers are preliminary, the essay also serves as a partial blueprint for further work by criminal law theorists with retributivist sympathies.     

Retributivism In Extremis

I defend two objections to Tadros’s views on punishment. First, I allege that his criticisms of retributivism are persuasive only against extreme versions that provide no justificatory place for instrumentalist objectives. His attack fails against a version of retributivism that recognizes a chasm between what offenders deserve and the allthings-considered permissibility of treating offenders as they deserve. Second, I critique Tadros’s duty view – his alternative theory of punishment. Inter alia, I object that he derives principles from highly unusual examples of self-defense he subsequently tries to apply to ordinary cases of punishment.     

Wrongdoing Without Motives: Why Victor Tadros is Wrong About Wrongdoing and Motivation

A central principle in Victor Tadros’s book, The Ends of Harm, is the means principle (MP) which holds that it is, with limited exceptions, impermissible to use another as a means. Tadros defends a subjective, intention-focused interpretation of the MP, according to which to use another as a means is to form plans or intentions in which the other serves as a tool for advancing one’s ends. My thesis here is that Tadros’s defense of the subjective interpretation of the MP is unsuccessful. To make that case I argue for three claims. First, the subjective interpretation has implausibly harsh implications in certain cases, implying that certain people would be guilty of much more serious wrongs than they can plausibly be thought to have committed. Second, the cases that Tadros offers to argue that the subjective interpretation of the MP must be right are better interpreted as showing that it is impermissible to act on an illicit intention – one that would direct an agent under certain, foreseeable circumstances to perform impermissible acts – than that it is impermissible to act for an illicit reason. Third, while Tadros correctly rejects the objective, causal-role-focused interpretation of the MP – according to which to use another as a means is for the other to play the causal role of means to the good which might be offered to justify the act one performs – there is another way of defending the significance of causal roles, one that has implications that track those of the MP fairly closely. I argue elsewhere at length for this other principle, which I call the Restricting Claims Principle. Here I simply sketch the basic idea in a way sufficient to show that one can escape the dilemma that the MP faces without grabbing either the subjective or the objective horn, and without moving into a consequentialist world in which it is permissible to punish the innocent for the sake of the general welfare.     

Can Self-Defense Justify Punishment?

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; and he cannot account for punishment of inchoate crimes.     

The Instruments of Abolition, or Why Retributivism is the Only Real Justification of Punishment

Victor Tadros’ The Ends of Harm is the most recent systematic attempt to defend the good old utilitarian justification of punishment. The attempt fails for a variety of reasons, which are here explored. First, the attempt presupposes an implausible account of human’s psychology. Second, the attempt confuses an attack on retributivism with an attack on certain criminal justice systems. Finally, Tadros admits that his justification of punishment is best seen as a mere step along the road to full-blown abolitionism – and so he unwittingly admits the extraordinarily thin sense in which he could be said to be really attempting to justify punishment.     

The Intrinsic Good of Justice

Some retributivists claim that when we punish wrongdoers we achieve a good: justice. The paper argues that the idea of justice, though rhetorically freighted with positive value, contains only a small core of universally agreed meaning; and its development in a variety of competing conceptions simply recapitulates, without resolving, debates within the theory of punishment. If, to break this deadlock, we stipulate an expressly retributivist conception of justice, then we should concede that punishment which is just (in the stipulated sense) may be morally wrong.     

Innocence Lost: A Problem for Punishment as Duty

Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution.     

American Criminal Justice Exposed

In The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences, Matthew Kramer argues that none of the standard rationales used to justify capital punishment successfully vindicates it and that a new justification, the purgative rationale, justifies capital punishment for defilingly evil offenders. In this article, it is argued, first, that a version of retributivism that adheres to the lex talionis as Kramer understands it does seem to call exclusively for the death penalty. Second, it is submitted that the purgative rationale is over-inclusive inasmuch as Kramer considers it applicable to certain offenders with abusive or deprived backgrounds, some offenders indoctrinated to adhere to pernicious ideologies that have impelled their crimes, and wrongdoers who have sincerely repented. Third, doubts are expressed about whether the purgative rationale justifies the execution of any offenders. Even if it is true that the continued existence of an extravagantly evil offender represents an affront to humanity, as Kramer suggests, a moral obligation to execute him does not follow. Since repentance is intrinsically valuable and since repentance would extinguish the affront to humanity, the community in which an unrepentant evil offender abides is duty-bound to foster repentance on the part of the offender by imposing banishment or life imprisonment, sanctions that afford the offender the most extensive opportunity for repentance. The community is therefore obligated to impose one of these sanctions instead of capital punishment.     

The Duty to Protect the Victim – Or the Duty to Suffer Punishment?

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender (D) and D’s duty to protect the victim (V) from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued.     

Hard Determinism and Punishment: A Practical <Emphasis Type="Italic">Reductio</Emphasis>

How can hard determinism deal with the need to punish, when coupled with the obligation to be just? I argue that even though hard determinists might find it morally permissible to incarcerate wrongdoers apart from lawful society, they are committed to the punishment’s taking a very different form from common practice in contemporary Western societies. Hard determinists are in fact committed to what I will call funishment, instead of punishment. But, by its nature funishment is a practical reductio of hard determinism: it makes implementing hard determinism impossible to contemplate. Indeed, the social practices that hard determinism requires turn out to be morally bad even according to hard determinism itself. I conclude by briefly reflecting upon the implications.     

Penal Disenfranchisement

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners (or serious offenders) is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes.     

行为功利主义违法观

刑法绝对排斥对正当行为的处罚;评价行为正当与否,应当以行为功利主义为原则,因而应当采取结果无价值论;在两种法益存在冲突的情况下,应当通过法益的衡量判断行为正当与否;符合构成要件的行为,即使违反了某种规则,但只要保护了更为优越或者同等的法益,就应成为正当化事由;行为正当与否与行为人应否受谴责不是同一个问题,因此,刑法理论必须严格区分违法与有责。     

Punishing Wrongs from the Distant Past

On a Parfit-inspired account of culpability, as the psychological connections between a person’s younger self and older self weaken, the older self’s culpability for a wrong committed by the younger self diminishes. Suppose we accept this account and also accept a culpability-based upper limit on punishment severity. On this combination of views, we seem forced to conclude that perpetrators of distant past wrongs should either receive discounted punishments or be exempted from punishment entirely. This article develops a strategy for resisting this conclusion. I propose that, even if the perpetrators of distant past wrongs cannot permissibly be punished for the original wrongs, in typical cases they can permissibly be punished for their ongoing and iterated failures to rectify earlier wrongs. Having set out this proposal, I defend it against three objections, before exploring how much punishment it can justify.

     

Intoxication and the Act/Control/Agency Requirement

Doug Husak has argued, persuasively I think, that there is no literal ??act requirement?? in Anglo-American law. I begin by reviewing Husak??s reasons for rejecting the act requirement, and provide additional reasons to think he is right to do so. But Husak??s alternative, the ??control condition??, I argue, is inadequate. The control requirement is falsified by the widespread practice of holding extremely intoxicated offenders liable for criminal conduct they engage in even if they lack control over their conduct at the time of the offense, and even if they are acting involuntarily. I provide examples from Canadian, US and German law to flesh out our legal practices with respect to intoxicated offenders. I then argue that, at least with respect to one class of intoxicated offenders?Cthose known as ??grand schemers??, who plan their criminal offending prior to rendering themselves incapable of voluntary control over their conduct?Cwe are morally justified in imposing liability. I then propose an alternative to both the act and control requirements: what I call the ??agency requirement??. I argue that our law does and should impose liability for conduct that is expressive of or constitutive of the defendant??s practically rational agency. Adopting an agency view allows us to expand our focus from just the moment of the offense to temporally extended instances of agency, such as is involved in planned offending by grand schemers.     

Predicting Proportionality: The Case for Algorithmic Sentencing

A basic principle in sentencing offenders is proportionality. However, proportionality judgments are often left to the discretion of the judge, raising familiar concerns of arbitrariness and bias. This paper considers the case for systematizing judgments of proportionality in sentencing by means of an algorithm. The aim of such an algorithm would be to predict what a judge in that jurisdiction would regard as a proportionate sentence in a particular case. A predictive algorithm of this kind would not necessarily undermine justice in individual cases, is consistent with a particularistic account of moral judgment, and is attractive even in the face of uncertainty as to the legitimate purposes of punishment.     

Criminalizing Health-Related Behaviors Dangerous to Others? Disease Transmission, Transmission-Facilitation, and the Importance of Trust

Statutes criminalizing behavior that risks transmission of HIV/AIDS exemplify use of the criminal law against individuals who are victims of infectious disease. These statutes, despite their frequency, are misguided in terms of the goals of the criminal law and the public health aim of reducing overall burdens of disease, for at least three important reasons. First, they identify individual offenders for punishment, a paradigm that is misplaced in the most typical contexts of transmission of infectious disease and even for HIV/AIDS, despite claims of AIDS exceptionalism. Second, although there are examples of individuals who transmit infectious disease in a manner that fits the criminal law paradigm of identification of individual offenders for deterrence or retribution, these examples are limited and can be accommodated by existing criminal laws not devoted specifically to infectious disease. Third, and most importantly, the current criminal laws regarding HIV/AIDS, like many other criminal laws applied to infectious disease transmission, have been misguided in focusing on punishment of the diseased individual as a wrongful transmitter. Instead of individual offenders, activities that enhance the scale of disease transmission—behaviors that might be characterized as ‘transmission facilitation’—are a more appropriate target for the criminal law. Examples are trafficking in human beings (including sex trafficking, organ trafficking, and labor trafficking), suppression of information about the emergence of infection in circumstances in which there is a legally established obligation to disclose, and intentional or reckless activities to discourage disease treatment or prevention. Difficulties remain with justifications for criminalizing even these behaviors, however, most importantly the need for trust in reducing overall burdens of disease, problems in identifying individual responsible offenders, and potential misalignment between static criminal law and the changing nature of infectious disease.     

Contract Damages, Corrective Justice and Punishment

This article re-examines the established principle that contract damages compensate but do not punish from the theoretical perspective of corrective justice and, in particular, the version advocated by Professor Ernest Weinrib. Weinrib argues that corrective justice affirms the traditional view that contract damages should be circumscribed by compensatory functions, and the notion of punitive damages is inconsistent with the structure of corrective justice and hence contractual rights. The correctness of this conclusion depends, however, on what is understood by punishment. This article argues that punishment is not necessarily explicable only as a form of state punishment, but may (adopting the retributive idea of punishment expounded by Jane Hampton) also be understood as a form of correlatively-structured response that redresses the moral injury inflicted by one's conduct on another. If that is the case, punitive damages for breach of contract may be justified even within the framework of corrective justice.     

International Crimes and the Right to Punish

What can international courts say when criminals ask, by what right do you try me? Some authors attempt to draw a connection between humanity's responsibility to call offenders to account and the harm humanity has suffered as a consequence of the offender's crimes. Others have argued that there need not be a special connection between those calling to account and the offenders, as the right to punish offenders is a general right each and every person has. Both lines of argument are ultimately unconvincing. Instead, I argue for a modified version of the second position which proposes a democratically based theory of responsibility for punishment held by international criminal law institutions.