This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfeiture and Punishment (Oxford University Press 2017). Primarily, the article grapples with Wellman’s claims regarding the moral permissibility of sadistic punishment. The metaphor of “philosophical languages” is employed throughout, to compare (translate) Wellman’s use of rights-forfeiture discourse to an approach that is grounded in practical-reasons discourse. This study in philosophical translation allows us to reassess and critique Wellman’s conclusions regarding the moral permissibility of sadistic punishment. On one level, the article is an attempt to engage with Wellman’s book and rights-forfeiture based arguments on, and in, their own terms. Yet, the article is also an attempt to explain and defend a practical-reasons based approach to appraising moral permissibility. If the article succeeds, it both pays tribute to Wellman’s masterful rights-forfeiture arguments, while making the case that practical-reason arguments illuminate a wider range of salient considerations that we should wish to keep in view when considering the moral permissibility of sadistic punishments.
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Christopher Heath Wellman, Rights Forfeiture and Punishment (Oxford University Press 2017).
As others have observed, it is “surprising and disappointing that Wellman’s strategy is to assume [the] central premise of rights forfeiture theory.” Kimberley Brownlee, “Wellman, Christopher Heath, Rights Forfeiture and Punishment,” 129 Ethics 158, 159 (2018). My concern here regarding stipulation is not so much about rights forfeiture, but more about the best understanding of moral permissibility.
Specifically, Wellman speaks in a dialect of strong rights forfeiture, with an objectivist accent. Which is to say, there is more than one way to speak rights forfeiture, just as there is more than one way to speak practical reasons.
See Section 3 below. I have occasionally framed my arguments in terms of rights, but prefer to work at the level of value and reasons. See Michelle Madden Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (Oxford University Press 2009). (Compare Chapter 9, examining the rights and duties of domestic violence victims, with the rest of the book, in which my arguments are framed in terms of practical reasons and values).
Specifically, I tend to speak the language of practical reasons in a Razian dialect, with a Gardnerian accent. I cannot claim proficiency, but some of the works I have found helpful in becoming a basic user include: Joseph Raz, Practical Reason and Norms (Oxford University Press 2nd ed. 1999); Joseph Raz, Engaging Reason: On the Theory of Value and Action (Oxford University Press 2000); John Gardner, “Justifications and Reasons,” in Harm and Culpability (A.P. Simester and A.T.P. Smith, eds., Oxford University Press 1996); John Gardner, “The Gist of Excuses,” 1 Buffalo Criminal Law Review 575 (1998); John Gardner, “The Wrongdoing that Gets Results,” 18 Philosophical Perspectives 53 (2004); John Gardner and Timothy Macklem, “Reasons,” in The Oxford Handbook of Jurisprudence and Philosophy of Law (Scott Shapiro and Jules Coleman, eds., Oxford University Press 2004).
I have attempted a good faith reconstruction of the logic of the argument, borrowing from Wellman’s premises. Of course, if I’ve taken liberties in the reconstruction that alter the substance of the argument, I look forward to being corrected.
“[P]ersons typically have a moral right not to be subjected to this hard treatment.” Wellman, n 1 at 2.
“[P]unishment necessarily involves visiting hard treatment upon those who are punished.” Wellman, n 1 at 1.
Wellman, n 1 at 6.
Wellman, n 1 at 3. For Wellman, it is X’s rights-related culpable wrongdoing that forfeits his right not to be punished. (I wish Wellman had done more to explain the notion of “rights-related.” I gather that he means to include both rights violations and attempted rights violations. Id at 69, 71, 201, n 10). Moreover, X’s wrongdoing forfeits his right not to be punished only to a proportionate extent. Id at 178. Neither of these points need derail us here, since I agree that the relevant kind of wrongdoing is culpable wrongdoing, and that proportionality constraints apply under both rights-forfeiture and practical-reasoning accounts.
I will use the generic “Y” throughout to refer to one inflicting punishment or other harsh treatment. Wellman’s argument focuses on the moral permissibility of punishment by the state (Chapter 3), so there is a longer and more complicated story to tell regarding why the state can permissibly claim a monopoly on punishment. The gist is that the state is in this position just insofar as it is “uniquely capable of adequately realizing the morally significant aims that a system of punishment can achieve,” namely, protecting the human rights of all of its constituents—and that it could not achieve these aims “unless it enjoyed exclusive authority to punish all wrongdoers within its territorial jurisdiction.” Wellman, n 1 at 10, 62. I find this view appealing—and I further agree with Wellman that the United States’ criminal system is a long way off from achieving these aims (Chapter 8), so nothing in what follow is meant to criticize his arguments on these points.
Wellman, n 1 at 4.
I am assuming an account of practical reasoning that incorporates rights discourse, to eliminate a potential point of disagreement. I think an account of practical reasoning that eschews rights discourse entirely can be helpful in explaining matters from a purely moral perspective, where our concern is simply to evaluate the moral quality of our conduct (as if noted on a metaphorical “moral ledger”), rather than to consider the permissibility of responses to our conduct (e.g., the permissibility of others holding us accountable for our conduct). On the “moral ledger” view, see Michael J. Zimmerman, An Essay on Moral Responsibility (Roman and Littlefield 1988) 7–8; Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton University Press 1970). Since Wellman’s project is concerned with responses to conduct (punishment), I am content to start at the level of rights, as he does. (For an account of practical reasoning that avoids rights discourse entirely, see Michelle Madden Dempsey, “Victimless Conduct and the Volenti Maxim: How Consent Works,” 7 Criminal Law and Philosophy 11 (2013)).
That is, Y’s duty not to punish X consists in a first-order reason not to punish X, and a second-order exclusionary reason not to act for (some) reasons that weigh in favor of punishing X. Gardner and Macklem, Reasons, n 5 at 465.
On cancelling permissions, see Richard Healey, “Consent, Rights, and Reasons for Action,” Criminal Law and Philosophy (2018) (online first, forthcoming), citing Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 2nd ed. 2009). See also John Gardner, “Justification Under Authority,” 23 Canadian Journal of Law and Jurisprudence 71 (2010).
Once these reasons are unexcluded, Y is now free to act on them. I will leave open the question of whether X’s wrongdoing gives rise to a reason in favor of punishing him (grounded in the retributive value of just deserts). I am inclined to think so, but I need not defend that view here.
This combination of a reason not to Φ, protected by an exclusionary reason not to act for (some) reasons to Φ, is the normative structure of a duty. Gardner and Macklem, n 5 at 465. On the phrase “rational horizons,” see John Gardner, “The Virtue of Justice and the Character of Law,” 53 Current Legal Problems 1, (2000).
Since a cancelling permission is not a reason for action, Y cannot act for the cancelling permission. One can only act for a reason. Rather, Y must “take up” the cancelling permission. That is, Y must allow the permission to bear its normative force on his rational horizons by unexcluding the reasons that were previously excluded in virtue of his duty not to punish.
On guiding/normative and explanatory/motivating reasons, see Joseph Raz, From Normativity to Responsibility (Oxford University Press 2011) 16–20.
As he explains: “(1) one acts permissibly as long as one acts within one’s rights, (2) one’s rights are bounded by the rights of others, and (3) those acting within their rights may permissibly act for any reasons whatsoever.” Wellman, n 1 at 15.
There is another sense of “permissible” on my view that does not concern us here: the sense in which Y’s Φ-ing X is permissible as to X, in virtue of X’s having consented to Y’s Φ-ing X. Dempsey, n 13. Also, of course, terms like “permissible” and “justified” function in the legal realm—as claims about what is recognized as legally permissible or legally justified—but I will leave that issue aside, since our concern here is with the moral justification of punishment.
Jeremy Waldron, “A Right to Do Wrong,” 92 Ethics 21 (1981).
Wellman, n 1 at 194, n 5.
Unless I missed it, Wellman never explicitly writes that one commits a wrong if, and only if, one violates (or at least attempts to violate) another’s rights. Although, I gather from the material at Wellman, n 1 at 21, that that is his position.
If Wellman wishes to add back into the analysis any of the factual details I have stripped away from the hypotheticals, then the ball is in his court to explain why these facts are relevant to the moral evaluation he offers.
Wellman, n 1 at 16.
In previous work, I have characterized the normative force of consent as an exclusionary permission, rather than a cancelling permission. I am indebted to Richard Healey for clarifying that—at least when rights are at issue—the better way to understand the normative force of consent is in terms of cancelling permissions. Healey, n 15.
Wellman, n 1 at 144. As Wellman correctly observes, this case is analytically similar to Frances Kamm’s Baby Killer Nation case. Frances Kamm, Ethics for Enemies (Oxford University Press 2011) 79, discussed at Wellman, n 1 at 127.
Wellman, n 1 at 144.
Wellman, n 1 at 144–146.
Wellman, n 1 at 144.
Wellman, n 1 at 123–125.
Wellman, n 1 at 126.
Wellman, n 1 at 22.
Wellman, n 1 at 22.
Wellman, n 1 at 23.
Wellman, n 1 at 126–128.
Raz, n 5 at 23.
Onora O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge University Press 1996) 4.
Wellman and I do not disagree on the substance of this point, as he acknowledges that rights can be overridden. See Wellman’s discussion of Feinberg’s Backpacker and Kamm’s Resistance at Wellman n 1 at 67–68, 126 (citing Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” 7 Philosophy and Public Affairs 93, 102 (1978); Kamm n 28. Interestingly, in these kinds of cases, it is stipulated that the actor whose conduct is being judged as morally permissible/impermissible does act for the right reasons (to save himself from a storm in Backpacker, and to fight the Nazis in the World Trade Center in Resistance).
Wellman seems to make such a move at 130: “given that theorists often believe that an agent’s reasons for acting do not determine the deontic status of her act, we should not automatically regard it as a reductio if a theory of punishment implies this as well.”.
Wellman seems to assume a Hohfeldian analysis at 25.
As Waldron correctly observes, however, “Hohfeld’s account of privileges was designed to cope with the analysis of normative systems in which duties were perfectly correlative with claim rights, as they are, for the most part, in contract, tort, and property law.” Waldron, n 22 at 24. Hohfeld’s account was not designed to cope with the wide range of morally salient considerations that moral philosophers should hope to illuminate and explain.
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Dempsey, M.M. Reasons for Punishment: A Study in Philosophical Translation (Or, Why Sadistic Punishment is Morally Impermissible). Criminal Law, Philosophy 14, 189–201 (2020). https://doi.org/10.1007/s11572-019-09502-y
- Rights forfeiture
- Practical reason
- Moral permissibility
- Criminal law