Some Surprising Implications of Negative Retributivism

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side‐constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side‐constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side‐constraints limit the kinds of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non‐degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non‐moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment.     

Criminal Attempts and the Penal Lottery

In most penal systems, success is punished more than failure. For example, murder is punished more severely than attempted murder. But success or failure is often determined by luck. It thus appears that punishment is allotted on the basis of arbitrary factors. The problem of criminal attempts is the question of how to best resolve this apparent tension. One particularly sophisticated attempt at resolution, first developed by David Lewis, holds that such differential punishment is not unjust when understood as a natural penal lottery. What is most interesting about this view is that it does not appear to involve a commitment to resultant moral luck. I argue that the natural penal lottery fails to deliver justice. Upon analysis, it carries the same implication that it sought to avoid—namely, a commitment to resultant moral luck. I then argue that there can be, in principle, no penal lottery that delivers justice, natural or otherwise.     

Moral Luck and Liability Lotteries

Adversaries of Moral Luck (AMLs) are at pains to explain why wrongdoers are liable to bear burdens (punishment, compensation etc.) which are related to the harm they cause, because the consequences of what we do are a matter of luck. One attempt to solve this problem suggests that wrongdoers who cause more harm are liable to bear a greater burden not because they are more blameworthy but rather because they get the short straw in a liability lottery (represented by the apparently indeterminate causal process). In this paper I argue that this attempt fails on several grounds. Apart from the fact that it is hard to see how the implementation of liability lotteries can be motivated and the fact that such scheme presupposes a political order (whereas the notion of liability does not seem to presuppose one), detaching liability from the outcomes of a culpable action undermines whichever justifications there were for imposing liability in the first place. Moreover, relying on the determination of the causal process as a good indication of the wrongdoer’s degree of culpability is mistaken, because the luck brought about through the causal process is not necessarily the only element involved in cases of harmful conduct which lies beyond the wrongdoers’ control.     

Happiness,Rationality, Autonomy and the Good Life

The paper starts with a general discussion of the concepts of happiness and the good life. I argue that there is a conceptual core of happiness which has to do with one’s life as a whole. I discuss affective and attitude or life satisfaction views of happiness and indicate problems faced by those views. I introduce my own view, the life plan view, which sees happiness as the ongoing realizing of global desires of the person. I argue that on such a view one’s life could be happy without a high level of rationality or a high level of autonomy; such rationality and autonomy are not built into the concept of happiness. So while happiness is a final value, and good for the person, it is not the only final value. Rationality and autonomy are also final values and, where they exist, are good as ends for the person, part of the good life.     

<Emphasis Type="Italic">Justice for Hedgehogs</Emphasis>, Conceptual Authenticity for Foxes: Ronald Dworkin on Value Conflicts

In his 2011 book Justice for Hedgehogs, Ronald Dworkin makes a case for the view that genuine values cannot conflict and, moreover, that they are necessarily mutually supportive. I argue that by prioritizing coherence over the conceptual authenticity of values, Dworkin’s ‘interpretivist’ view risks neglecting what we care about in these values. I first determine Dworkin’s position on the monism/pluralism debate and identify the scope of his argument, arguing that despite his self-declared monism, he is in fact a pluralist, but unusual in denying conflict between plural values. I then set out the structure of his interpretive theory of value relations and present a case of value conflict which I think interpretivism cannot deal with. Following this I argue that there are structural reasons why cases like this are liable to occur and suggest that interpretivism will frequently fail to properly reflect people’s moral commitments because reinterpretation of values has the side effect of excluding important moral commitments from our conceptions of values. While, as Dworkin argues, there are no brute moral facts concerning values, moral psychology constrains the range of acceptable conceptions of values. Given the shortcomings of interpretivism I conclude that we should acknowledge that values may conflict.     

Platonic Personal Immortality

I argue that Plato distinguishes between personal immortality and immortality of the soul. I begin by criticizing the consensus view that Plato identifies the person and the soul. I then turn to the issue of immortality. By considering passages from Symposium and Timaeus, I make the case that Plato thinks that while the soul is immortal by nature, if a person is going to be immortal, they must become so. Finally, I argue that Plato has a psychological continuity approach to personal identity. Thus, for Plato, a person becomes immortal by avoiding reincarnation and securing for themselves psychological continuity forever.     

Knowledge of Self,knowledge of others,error; and the place of consciousness

"Knowledge of self, knowledge of others, error and the place of consciousness" examines texts and problems from the phenomenological tradition to show that the other does not present her/himself as a consciousness enclosed in a merely material body. I discuss Merleau-Ponty's attempt to supplant this view with the view that the other is always seen as an "incarnate consciousness" - a unity of mind and body in activity. This view faces a difficulty in that it seems to collapse the distinction between one's own understanding of one's behavior and the understanding which another might have of this same behavior. In response to this objection, I study how the meaning of people's behaviors are settled in dialogue. I argue that the meanings that an actor gives to her or his behavior cannot rest entirely with that person, nor are they determined solely by the interpreter, but instead develop in the interaction between the actor and the interpreter.     

Retributivism revisited

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task.     

The Moral Status of Nonresponsible Threats

Most people believe that it is permissible to kill a nonresponsible threat, or someone who threatens one's life without exercising agency. Defenders of this view must show that there is a morally relevant difference between nonresponsible threats and innocent bystanders. Some philosophers, including Jonathan Quong and Helen Frowe, have attempted to do this by arguing that one who kills a bystander takes advantage of another person, while one who kills a threat does not. In this paper, I show that the proposals offered by Quong and Frowe have unacceptable implications. I then argue that those who claim that nonresponsible threats may be killed face a dilemma generated by the possibility of a stationary threat, or someone who endangers another person's life without moving. Unless we arbitrarily distinguish between stationary and moving nonresponsible threats, it is unclear how the permission to kill nonresponsible threats is to be explicated. I conclude that nonresponsible threats are not legitimate targets of self‐defence.     

Autonomy and moral deference

The idea that a person might have a duty to defer to the moral judgments of others is typically something that arouses our suspicion, in ways that other kinds of deference do not. One explanation for this is the value of autonomy. According to this explanation, people have a duty to be autonomous, and any act of deferring to another person’s moral judgement is not an autonomous action. Call this “the Autonomy Argument” against moral deference. In this article, I criticise the Autonomy Argument. I argue that, even if we accept that an act of moral deference can never be autonomous, those who believe that people have a duty to be autonomous must accept that acts of moral deference are morally necessary. This is because some people are incapable of becoming autonomous by themselves, and deferring to a moral expert is the only way they might ever become autonomous.     

The Individuation of Actions

I argue against a view of the individuation of actions endorsed most notably by Hornsby and Davidson. This is the view that in, for example, Anscombe's case of the pumping man, we have a single action which can be described, variously, as a pumping, a poisoning and so on. I argue that, even in the area of the standard arguments against this view, such as that based on the logic of 'by' and the argument from temporal dimensions, the case against the Davidson-Hornsby view has not been made as strong as it ought to have been. I show how those standard arguments can be strengthened; and I argue that the principal considerations adduced in support of the view do not in fact lend it the support that they have been widely thought to lend it. I conclude that the view should be rejected.     

Kant's Argument that Existence is not a Determination

In this paper, I examine Kant's famous objection to the ontological argument: existence is not a determination. Previous commentators have not adequately explained what this claim means, how it undermines the ontological argument, or how Kant argues for it. I argue that the claim that existence is not a determination means that it is not possible for there to be non‐existent objects; necessarily, there are only existent objects. I argue further that Kant's target is not merely ontological arguments as such but the larger ‘ontotheist’ metaphysics they presuppose: the view that God necessarily exists in virtue of his essence being contained in, or logically entailed by, his essence. I show that the ontotheist explanation of divine necessity requires the assumption that existence is a determination, and I show that Descartes and Leibniz are implicitly committed to this in their published versions of the ontological argument. I consider the philosophical motivations for the claim that existence is a determination and then I examine Kant's arguments in the Critique of Pure Reason against it.     

Hegel after Nancy: Sensibility,Singularity, and the Problem of the … x

This article takes up two models of punishment in Hegel, one that is underdeveloped in the Phenomenology of Spirit and one more fully developed in the Elements of the Philosophy of Right. Both models focus on the notions of law and the legality of personhood. I argue that beyond this, they share a common concept of singularity as an excess over and above the ethical-political order. This concept opens up to what Jean-Luc Nancy calls the “event” of freedom in Hegel. This point about excess lets me deploy Lacan and then Nancy to underscore how, for Hegel, problems concerning the question “what is law?” might be a clue as to how the bad infinite is opposed to the good or “actual” infinite. I take this up in the context of Hegel’s theory of “value,” including the value of the “good.” Altogether this analysis reveals that Hegel’s method allows for a more complex humanism than is typically understood, since his points about law and punishment lead to a more radicalized notion of intentionality and forgiveness than usually derived from the logic of recognition.     

Taking the Perceptual Analogy Seriously

This paper offers a qualified defense of a historically popular view that I call sentimental perceptualism. At a first pass, sentimental perceptualism says that emotions play a role in grounding evaluative knowledge analogous to the role perceptions play in grounding empirical knowledge. Recently, András Szigeti and Michael Brady have independently developed an important set of objections to this theory. The objections have a common structure: they begin by conceding that emotions have some important epistemic role to play, but then go on to argue that understanding how emotions play that role means that there must be some alternative, emotion-independent route to obtaining knowledge of value. If there has to be such an emotion-independent route, then the perceptual analogy breaks down in a significant way. In this paper, I argue that the right ways for sentimental perceptualists to respond to each of these objections are revealed by thinking through how analogous objections applied to perception and the empirical domain would be answered. Although Szigeti's and Brady's objections should not persuade sentimental perceptualists to give up their view, the objections do put important constraints on what a form of the view has to be like in order to do exciting metaethical work.     

Loving People for Who They Are (Even When They Don't Love You Back)

The debate on love's reasons ignores unrequited love, which—I argue—can be as genuine and as valuable as reciprocated love. I start by showing that the relationship view of love cannot account for either the reasons or the value of unrequited love. I then present the simple property view, an alternative to the relationship view that is beset with its own problems. In order to solve these problems, I present a more sophisticated version of the property view that integrates ideas from different property theorists in the love literature. However, even this more sophisticated property view falls short in accounting for unrequited love's reasons. In response, I develop a new version of the property view that I call the experiential view. On this view, we love a person not only in virtue of properties shaped by and experienced in a reciprocal loving relationship, but also in virtue of perspectival properties, whose value can be properly assessed also outside of a reciprocal loving relationship. The experiential view is the only view that can account not only for reciprocated love's reasons, but also for unrequited love's reasons.     

Complicitous liability in war

Jeff McMahan has argued against the moral equivalence of combatants (MEC) by developing a liability-based account of killing in warfare. On this account, a combatant is morally liable to be killed only if doing so is an effective means of reducing or eliminating an unjust threat to which that combatant is contributing. Since combatants fighting for a just cause generally do not contribute to unjust threats, they are not morally liable to be killed; thus MEC is mistaken. The problem, however, is that many unjust combatants contribute very little to the war in which they participate—often no more than the typical civilian. Thus either the typical civilian is morally liable to be killed, or many unjust combatants are not morally liable to be killed. That is, the liability based account seems to force us to choose between a version of pacifism, and total war. Seth Lazar has called this “The Responsibility Dilemma”. But I will argue that we can salvage a liability-based account of war—one which rejects MEC—by grounding the moral liability of unjust combatants not only in their individual contributions but also in their complicit participation in that war. On this view, all enlistees, regardless of the degree to which they contribute to an unjust war, are complicitously liable to be killed if it is necessary to avert an unjust threat posed by their side. This collectivized liability based account I develop avoids the Responsibility Dilemma unlike individualized liability-based accounts of the sort developed by McMahan.     

Character-Principlism and the Particularity Objection

This paper is a response to particularist critics of the normative force of moral principles. The particularist critique, as I understand it, is a rejection not only of principle-based accounts of moral deliberation and justification, but also of accounts of character in which principles play a central role. I focus on the latter challenge and counter it with a view I call character-principlism .
I begin by discussing in a general way what motivates the particularity objection to principles and then contrast two views – both of which insist on the importance of attentiveness to particularity – about the relative normative status of principles and particular cases. I present some reasons for believing that we need a more normatively robust conception of the role of moral principles than the particularists provide. In the main portion of the paper, I discuss how character-principlism sees principles functioning in our lives and the lives we lead with others. I contrast this with some other accounts of desirable character that particularists can embrace, and argue that these are seriously flawed because, unlike character-principlism, they cannot satisfactorily explain how a person could possess the constancy of character that moral integrity requires.     

How Bad Can Good People Be?

Can a virtuous person act contrary to the virtue she possesses? Can virtues have “holes”—or blindspots—and nonetheless count as virtues? Gopal Sreenivasan defends a notion of a blindspot that is, in my view, an unstable moral category. I will argue that no trait possessing such a “hole” can qualify as a virtue. My strategy for showing this appeals to the importance of motivation to virtue, a feature of virtue to which Sreenivasan does not adequately attend. Sreenivasan’s account allows performance alone to be a reliable indicator of the possession of virtue. I argue that, at least with respect to a classical, Aristotelian conception of virtue, this assumption is mistaken: a person is said to possess a virtue only when she is properly motivated. In my view, the nature of motivation required for the possession of Aristotelian virtue does not admit of blindspots. I am not primarily interested in details about the situationist critique of virtue theory but rather the implications that blindspots have for our conception of virtue. I argue that because the practical reasoning of the virtuous requires both cognitive and motivational coherence, the motivational structure of the virtuous agent cannot accommodate blindspots. My conclusion is neither a defense of motivational internalism nor of an idealized conception of Aristotelian virtue. My aim is to show that because blindspotted virtue does not cohere well with Aristotle’s conception of virtuous agency, friends of virtue theory must choose one or the other; they cannot have both.     

The Break-Up Check: Exploring Romantic Love through Relationship Terminations

People who experience love often experience break-ups as well. However, philosophers of love have paid little attention to the phenomenon. Here, I address that gap by looking at the grieving process which follows unchosen relationship terminations. I ask which one is the loss that, if it were to be recovered, would stop grief or make it unwarranted. Is it the beloved, the reciprocation of love, the relationship, or all of it? By answering this question I not only provide with an insight on the nature of break-ups, but also make a specific claim about the nature of love. I argue that the object that is universally lost in all break-ups is a person with certain intrinsic qualities, who is in a relationship characterised by certain shared activities and recognized as romantic. That means that, at least in romantic terminations, the beloved and the relationship are not independent objects of grief. So, plausibly, they may not independent objects of value in love. Hence, those who state otherwise (within the property view and the relationship view) should face up to this objection coming from the study of break-ups.     

The possibility of resurrection by reassembly

It is widely held that the classic reassembly model of resurrection faces intractable problems. (1) What happens to someone if God assembles two individuals at the resurrection which are equally good candidates for being the original person? (2) If two or more people, such as a cannibal and the cannibal’s victim, were composed of the same particles at their respective deaths, can they both be resurrected? If they can, who gets the shared particles? (3) And would an attempt to reassemble a long-gone individual result in a genuine resurrection, or merely an intrinsic duplicate of the original person? In this paper, I argue that the first of these problems has, in effect, been solved by defenders of a rival view; I propose a novel solution to the second problem; and I show that the third can be solved by upgrading the naïve reassembly model to a novel variety of reassembly model.