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08/01/2011

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Wait, what? Either hard determinism is true or it is not.

Possibility 1: Hard determinism is false. If so, then (so goes the common line) criminals had a choice and maybe deserve to be punished, yada yada. Meanwhile, in this Possibility, people of hard determinist philosophy will (according to you and some big assumptions) try to create a penal system that Just Won't Work. All good so far...

Possibility 2: If hard determinism is true, then we are all determined to treat criminals however we have been treating them and will treat them in the future. In other words, it's not a question of whether we should or should not adjust prisons one way or another -- we either will do so or we won't. I'm determined to write this, just as you're determined to write your defense of free will, and so on. No one is committed to changing the prison system, no matter what philosophy they are determined to espouse (well, they're committed if they're determined to make such a change, you could say).

Note that in Possibility 2, there IS NO REDUCTIO. So your reductio argument falls on its face, since it only does any useful work when we already assume that hard determinism is false. If HD is true, your argument does nothing.

Hi Saul,

Full disclosure: I have not yet read the paper. So I'm shooting my mouth off without checking to see whether you've discussed these issues. That said, let me say that I doubt very much that this reductio goes through, both because I doubt that hard determinists (or other sceptics, like - to take an example at random - me) are committed to funishment, and because I doubt that funishment would have the effects you envisage. First the commitment issue: hard determinists and other random sceptics usually adopt a forward-looking view of punishment. That is, they think that (a) no one deserves punishment but (b) it may be necessary to incarcerate people to bring about the best consequences (via deterrence and incapacitation) . Now (a) and (b) together do entail (c) that because no one deserves to be punished, incarceration should be as non-punitive as possible, consistent with our consequentialist aims. It does not entail (c*) because no one deserves to be punished, incarceration should be as non-punitive as possible, but it is (c*) and not (c) that entails funishment. If funishment has bad consequences, then that is simply a reason to adjust the terms of incarceration.

But would funishment have the bad effects envisaged (to put it slightly differently, how big is the gap between the practices entailed by (c) and those entailed by (c*))? While I doubt that we can close the gap entirely, I think there are very good grounds for making incarceration very much less punitive than it is. We can do so and achieve all our consequentialist aims, including saving money on incarceration, I suspect. Note that this is an empirical issue: one that is settled by the criminological data not by philosophers' intuitions. The data I have seen supports the following claims: there is a deterrent effect, though it may be restricted to property crimes alone (very little deterrent effect for violent crimes except insofar as the violence is instrumental to property crimes). So we do have reason to preserve incarceration for its deterrent effect. But the deterrence effect is is quite independent of length of sentence: certainty of detection, conviction and imprisonment is far better predictor of deterrence than is sentence length. In fact, conditions of incarceration matter - making people have a worse time of it in prison does increase deterrence somewhat but only when this worse time of it does not brutalize prisoners. In fact a short time in solitary confinment - say 2 weeks of boredom - seems to have all the deterrent effect of a multi-year stint in an ordinarily harsh prison. If that's correct, we can save enormous amounts of money by shortening imprisonment terms dramatically. Further, shorter sentences actually increase certainty and therefore have a multiplying effect on deterrence: prisoners do not tend to appeal short sentences and courts have little patience for them when they do. Finally, solitary confinement removes the two factors that cause recidivism: they remove the first-time offender from the company of hardened criminals, which means they don't acquire the dispositions and skills of the hardened criminals, and they are too short to make the offender have a hard time adjusting to life on the outside.

Bottom line: if your empirical claims go through, the sceptic can shrug. But I doubt they do go through. Instead, the sceptic can point to the benefits of dropping retribution: social and economic benefits, as well as moral.

Thanks for the fantastic (and fun!) paper. I remember that when I first read it earlier in the summer I just kept thinking to myself, “Why isn’t this just an argument for consequentialism about punishment?” Of course, you address this at one point, but I still have concerns.

First, the self-defeat claim and the argument against consequentialism seem to trade on an ambiguity between two understandings of hard determinism. On one understanding, hard determinists believe that “no one deserves to be made to suffer”. On this understanding, funishment leads everyone to suffer more than they otherwise would. Fair enough. Reductio. On another understanding, hard determinists believe that “no one deserves… to be made worse off than another”. On this understanding, funishment doesn’t seem to me to clearly lead to self-defeat. If all funishment does is make life in fun-zone just as good (or bad) as life on the outside, then it seems like no one is suffering any less than anyone else, which is just what hard determinists seek. So there doesn’t seem to be any self-defeat here.

But if funishment is only self-defeating on the first understanding of hard determinism, why can’t we escape the reductio by becoming consequentialists whose aim it is to eliminate as much undeserved suffering as possible? The consequentialist option only seems objectionable on the second, egalitarian understanding of hard determinism. But if we object to consequentialism from the egalitarian perspective, then we are no longer entitled to think the practical upshot of hard determinism is objectionable!

Of course, perhaps you intended the “or” in “no one deserves to be made to suffer, or to be made worse off than another” to mean “and”, or the “unjust” in “hence… it would be unjust to do so” to be indefeasible. In either case, we are going to be blocked from going the consequentialist route. But the consequentialist route seems really appealing, at least to me –- especially compared to funishment. Doesn’t that just mean I should reject the egalitarian view of hard determinism, or deny that there really is an indefeasible prohibition on making people suffer (since it might prevent even more suffering)? It seems to me that, just like its counterpart theory of distributive justice, the egalitarian understanding of hard determinism is subject to a leveling-down objection that shows that we were really concerned with absolute rather than relative levels of well-being in the first place. Furthermore, it seems to show that we can't always object to punishing the innocent, since sometimes the alternative is much worse -- for everyone.

I fear my concerns wade into issues analogous to those about ideal vs. non-ideal theories of distributive justice that go beyond the scope of your paper. I am willing to concede that the consequentialist route isn’t going to get the hard determinist everything she originally wanted. It seems to me that the only world that could do that would be one in which there was no crime, no one suffered, and everyone was just as well off. But if we are willing to drive a wedge between theory and practice… what’s the point of engaging in theory? You touch on this at the end of your paper, but it goes by pretty quickly.

I apologize in advance if I misconstrued any part of your argument. Thanks again for the entertaining paper!

Strange Loops--

You overlook the fact that a comprehensive determinism is fully compatible with change within the scope of subsystems of that determinism. There could be deterministic inputs into some more restrictive systems (from sources not available to those systems up to a certain time) that alter them beyond a certain point. We could thus change our deterministic minds about what proper punishment is depending on those inputs at certain times.

To reason otherwise is to conflate determinism with fatalism, unless one could argue that all changes in deterministic systems of a world are coordinated with a plan or prediction of an appropriate superbeing, thus putting fatalism in play. So I'd say.

This is a great post, Saul! I can't get the paper but I like the argument above. In some ways this strikes me as being P.F. Strawson's point: our practices commit us to certain beliefs (or perhaps the practices are a reflection of those beliefs). Strawson could not have meant by this that those practices justify the belief. The point is they indicate belief. You can deny the belief all you want but your practice suggests otherwise.

But I suppose you would see your project as VERY different from P.F. Strawson's.

Thanks for the comments, sorry for the delay in replying, flew over to Boulder for the ethics conference. Some quick thoughts, and then I can respond in more detail (unless you surrender):

Strange Loops - the paper may well have mistakes in it, but they are unlikely to be that simple (it was refereed). Let's assume that we are hard determinists, either because that's what we believe, or for the sake of argument. As hard determinists, we still want to do the right thing, morally. Whatever we do, it will have been determined that we do it, and we won't be blameworthy. But we still want to try and get it right. So what do we do about punishment? I think that we can keep the incarceration, but we need to compensate a lot for it, i.e. funish rather than punish. But then this gets us (as HD's) into a lot of trouble, as I argue.

Neil - on whether HD's should morally go for funishment (self-defeat aside), I'll unite my response to the one to Adam. On whether funishment will have the consequences I argue for: you clearly know much more than I do about the empirical situation. But I am suspicious about the idea that "short and hard" will do the trick, in a sufficient number of cases. First, there are many bad guys you will want to keep off the street for long periods, some forever. Second, if it were so easy, why would liberal West European countries not do it? And considering how much standard practices cost, even countries with less humane good will? Something doesn't make sense here. I am not defending the current system, we probably over-criminalize and over-punish and should be open to revision etc. But at the end of the day, if we keep many people in prison for many years (as realistically we will), but instead of punishing we need to funish them, this will cost A HUGE AMOUNT. That already supports my argument (i.e. the public won't pay for funishment). Add to that what must be a significant expected decline in deterrence (crime becomes a Win-Win situation, since risk is considerably lowered, either crime pays or worse case you end up in a top resort) - and HD's seem to be out of business.

Adam (and normative-Neil) - sure, utilitarians don't care about the free will problem anyway, e.g. recall the punishment of the innocent debate and the like. But as I argue in the paper, that's not a good direction for HD's to go. As a deep moral position, HD says that "we mustn't treat people harshly, because no one deserves to be so treated", and not that "we mustn't treat people harshly... but if it adds a lot of utility...then ah, o.k., in that case do whatever you want". That stance doesn't seem to me to take seriously the moral implications of HD. IF one cares about justice, and thinks HD is correct, then funishment seems to follow. But funishment is self-defeating for HD. So HD has a problem. I am not saying that this proves HD mistaken (is a practical reductio enough to carry theoretical weight of this sort?), I don't have a positive proposal myself, but still, HD has a big problem.

Joe - I'm not sure, I want to think about this more. "Freedom and Resentment" is arguably the greatest philosophical paper of the 20th century, but it is complacent. My temperament is different.

Thanks a lot for your response. Please correct me if I’m wrong, but your argument seems to be this: hard determinists can’t go the consequentialist route, because… well, then they wouldn’t be hard determinists anymore. I’m completely on-board with that. On a particular view of what hard determinism is, consequentialist punishment can’t be justified. Sure.

But now putting aside the question of whether funishment shows hard determinism to be theoretically untenable, does it show it to be practically untenable? Yes, this is the point of your paper. Okay, so we have these two practically inconsistent strands of hard determinist thought. They cannot be realized simultaneously in practice. As a matter of practical reason, we need to choose one over the other. We must either get rid of the “no punishment whatsoever” strand in favor of a practical consequentialism, or we need to get rid of the “eliminate as much undeserved suffering as possible” strand in favor of… funishment or nothing, I guess. But we’ve already seen that funishment is abominable, and nothing probably wouldn’t be too good either. So why can’t we go the consequentialist route? Because it doesn’t take the moral implications of hard determinism seriously. But now you’re serving up theoretical considerations to deny a practical position, when we’ve already shown that those theoretical considerations lead to practically undesirable outcomes. So why can’t we be consequentialists in practice, even if we’re hard determinists in theory?

I've often taught in my classes that compatibilism and hard determinism might overlap on consequentialist punishment based on pragmatic considerations, but whereas the former are in principle committed to the FWxMRx connection as satisfied by the truth of FWc the latter are not. So hard determinists could favor simple banishment if that made sense. The UK's historical use of Australia comes uppermost to mind, as well as Captain Kirk's fictional stranding Kahn on Ceti Alpha V. But the intention was not to blame or punish per se, but to simply eliminate the harmful presence of criminals. Though, as it turned out in both cases, the castaways not only ultimately survived but in their own ways flourished (well, Kahn at least had the opportunity to wreak havoc on Kirk in revenge). While banishment does not guarantee the welfare of the banished, it doesn't at all intend correction either (Khan didn't learn any lessons!). But the compatibilist could not accept that option. So hard determinists could banish, but compatibilists could not because it does not necessarily punish/correct.

Saul, you are right: consequentialism is not morally deep. As for me, I'd rather be right than deep. Joe, as I understand Strawson he is making an empirical claim: given the kind of creatures we are, we can't abandon our set of responsibility-related practices and the attitudes they entail. I can't tell you what I think of philosophers making empirical claims from the armchair because this is a family blog.

Adam - I would want to go more slowly. This being philosophy, we need to sit a bit on the questions, before going to the answers, let alone the practical ones. If my funishment argument works, does it refute hard determinism as the true theory? Not necessarily. But it does show that, for HDs, (a) justice is impossible, not in a vague sense where you never get perfection, but in a fundamental way. Here we should sit for a while, have a glass of water, and try to recover - justice is a big deal. And if indeed HD is in practice self-defeating, that also might mean that (b) the view collapses, it cannot give moral guidance. If HD is true (in whole or in part), but it collapses, then that is a problem for moral theory. Also, it is worth while also thinking whether (c) the issue I raise is limited to punishment. I think not, HD will have a big problem with many other forms of making (good or bad) distinctions between people, which means that it will have grave problems with incentives and more broadly with appreciation. This needs further reflection.

So much for HD. My view combines HD with compatibilism. So, very broadly, I think that "ideally" we should continue with the Community of Responsibility based upon compatibilist distinctions, mitigated by the insights of HD which say that such practices are unjust. See, for example, my 2005 piece "Free Will and Respect For Persons", #28 in my site, which is here:

http://philo.haifa.ac.il/staff/smilansk.htm

We should not be e.g. utilitarians because utilitarianism does not respect persons (and doesn't really care about the free will problem, which you should if you respect persons).

In practice, since I am skeptical about the prospects of living with avowed compatibilism, and being here first-order consequentialists is not only in my view mistaken but is also not clearly possible (can we e.g. praise and blame while knowing that these are just manipulative mechanisms?), the implications of the "practical" viewpoint are not obvious. Maybe we cannot be first order hard determinists, compatibilists, or utilitarians! For what it's worth, I am inclined towards a conservative view whereby we are probably better off, overall, living with the false libertarian beliefs (and so for most people not being aware that they are false). That is, Illusionism on free will. See Part 2 of my book Free Will and Illusion, and too many papers since.

So, in sum, I think that we have here HUGE issues about the relationship between theory and practice, what beliefs we can live with, the impossibility of true justice, and so on. Just going for some version of utilitarianism as a guidance for daily practice arguably doesn't make sense even if one is a utilitarian, and also one shouldn't be, even in a world without libertarian free will.

Alan - the analogy between banishment and funishment is interesting. HD's like Derk Pereboom se the quarantine analogy as the most helpful one, and there is a similarity there. I don't know enough about the history of banishment, but since the British were libertarians I would be surprised if they thought that the convicts in Australia would be living a good life (and they made sure this wouldn't be so when they first arrived there). I see your point, but the more such banishment can be construed as punishment, the less compatibilists would object. I don't take compatibilism to be very vengeful.

Neil - I agree that on free will we should in practice probably give up on trying to be deep (but isn't that a deep view?). On P.F. Strawson, I am much more a fan than you. I think that it's not obvious what he is trying to do, but partly he is offering a Humean view which says that we should just live our practical lives and not try to be deep. Here I am not sure that you are that far away (except that he did not think much of making radical revisions).

Thanks for your extensive response! I suppose I’ll surrender for now. I’m still not convinced, but I see where our disagreement bottoms out, which is where I expected it to: respect for persons. I have read that paper in the past and found it quite helpful, but I’m still not driven away from my consequentialism.

On a side note, I think we can praise and blame while knowing these are just manipulative mechanisms, but that it requires fluctuating between being first-order and second-order consequentialists. But that’s an issue for another day, another paper.

Saul: Thanks for your thoughtful replies.

I'm still a little confused. (I've a mere B.A. in philosophy, and not working in that side of academia these days, so forgive my ignorance).

It is possible for determinism to be true, yet no one hold that belief, correct?

Even if belief in determinism would potentially lead to ethically self-defeating consequences, that doesn't provide any evidence for or against determinism. It could be that belief in determinism, and acting on that belief, pulls one in two mutually-exclusive directions, and people with that belief just can't get the ethical outcome they want. But that doesn't say anything about whether determinism does or does not hold, right?

In other words, assume determinism is true. Assume further that Bob believes in determinism (and from the first assumption, Bob's belief was determined -- it could be no other way in this particular universe). Now because Bob sees the world in this way, he also believes criminals aren't responsible, so he desires that they not suffer from punishment; but he further desires that others not suffer from their (determined) criminal actions. In this case, you seem to be arguing, Bob is in a bind: someone will end up suffering (the criminals or the non-criminals).

I'm sure I've misunderstood it all, but if that's the argument, then you've shown that if determinism were true, people with belief in determinism would not be able to produce a penal system they're ethically happy with, and that is supposed to be a reductio of the metaphysical fact of determinism? Or is it simply saying that hey, it would stink to be stuck with a penal system that's not perfect, so believing in determinism is a bad idea if you want to be able to prevent crime?

If your claim is simply that people with belief in determinism are stuck with crappy options for a penal system, so be it. That doesn't make their belief untrue, nor should it provide any evidence against their belief. Believing that there is no god might make an atheist sad (and believing in a god might make a theist happy), but those consequences of belief can't be taken as evidence of the actual existence of a god. The atheist's sadness is not a reductio of atheism, right?

Adam - right, thanks for the exchange.

SL - you are asking the right questions. I am not sure what exactly my argument does imply, since it's purely negative, but we still have to go on living (even as hard determinists). I agree that the truth of determinism is unrelated to any of these issues. With hard determinism, as a "hard" interpretation of the implications of determinism, or more accurately of the absence of libertarian free will irrespective of determinism (by contrast to the "soft" version, i.e. compatibilism) there is more leeway. If we assume for the sake of discussion that HD is true, as a theory, i.e. as the correct interpretation of determinism, and if we accept my argument that it cannot be implemented, then what does that show? That is a difficult question. One could argue that Nothing - being true is one thing, being applicable is another. But in an ethical view, which is supposed to guide moral life, that seems problematic. Perhaps we could play with different levels, so that a view can be true but not action-guiding, or the like. I am not sure what my position is on this question of the relations between ethical truth and practice, in general, and there isn't much philosophical discussion of it as far as I am aware.

In any case, if we believe HD and I am right that trying to apply it will not work, then in practice at least the theory fails; hard determinists cannot produce a penal system that their own theory holds as adequate. Following their theory into practice would be a mistake, for them. That is at least a practical refutation, and, well, its not very comfortable for an ethical theory.

Neil,

Empiricists like to dwell on the origins of knowledge. But in the end it doesn't matter HOW your belief got there. What matters is WHY you continue to believe it. What reasons (or whatever) have you got right now to sustain that belief? That's what matters.

Saul, I am sorry I was slow to join this interesting discussion. Now that I have had the chance to read your paper--which I enjoyed, as always--I thought I would post my two cents. I apologize in advance if what I am about to say touches on issues already raised by other commentators. In order to join the fray while the debate is still active, I was only able to give the comment thread a cursory glance. That being said, you set up your argument in the following way:

“By contrast, hard determinists believe that there is no free will, and so no moral responsibility, and no desert. How, then, can hard determinists deal with the need to punish, when coupled with the obligation to be just?”

You then try to show that hard determinists who lobby for punishment rather than funishment cannot live up to their obligation to be just. However, it seems to me from the outset that you have simply begged the question by assuming that “the obligation to be just” entails that only those who deserve to be punished are punished. Obviously, if the hard determinist believes (a) we ought to punish offenders, (b) we ought to only punish the guilty, and (c) no offenders are guilty, then the hard determinist is stuck with an irreconcilable inconsistency. But I see no reason to saddle the hard determinist with this constellation of incompatible views. All the hard determinist needs to reject is (b)—which is precisely what I think she should do. You attempt to place the hard determinist on a purportedly inevitable road to injustice and inconsistency by suggesting that the hard determinist cannot justify or accept the practice of “hard treatment”—that is, making offenders suffer for their wrong doing. Instead, you think the hard determinist is obligated on pain of inconsistency to lobby instead for not just “soft treatment,” but the “preferential treatment” of murders, rapists, thieves, and other offenders. But I see no reason for thinking the hard determinist is obligated to follow you down this road.

To see what I have in mind, consider the following analogy: While I adore my dogs and care for them deeply, I no more think they have free will than I think humans have free will. I nevertheless think dogs are sophisticated, intelligent, and highly social creatures with a complex constellation of emotional and cognitive capacities that enable them to learn from their mistakes, modify their behavior in accordance with social rules, and the like. So, when raising a dog from birth to adulthood, some hard treatment may be necessary along the way since this treatment may be the most efficient means of teaching the dog how to play by the social rules that will ultimately enable him to enjoy a long and happy life coexisting with me. For instance, when the puppy pees in the house, aversive conditioning may be part of the most effective corrective treatment. Does the dog deserve this negative reinforcement? No, desert has nothing to do with it. But if the negative reinforcement makes sense—that is, if there is a good reason for it—then it would be appropriate. However, if it doesn’t make sense—for instance, the dog has a medical condition that renders him unable to control his bladder or positive reinforcement is a markedly more effective means of eliciting the desired behavior—then hard treatment would be inappropriate.

The same can be said by the hard determinist when it comes to punishment and aversive conditioning in human beings. In short, the hard determinist isn’t committed to the view that the infliction of suffering is always bad. She is merely committed to the view that whenever warranted suffering is inflicted it is not because the offender deserves it. As such, your following comment misses the mark:

‘‘Happy hard determinists’’ (e.g., Waller 1990; Pereboom 2001; Sommers 2007), who have welcomed the demise of belief in free will and moral responsibility, in favor of a moral order in which no one would be made to suffer, or made to be worse off than others, on account of his or her choices and actions.”

I will let Bruce, Derk, and Tamler speak for themselves. As a card-carrying happy hard determinist, I happen not to think that no one should be made to suffer since I think that sometimes aversive conditioning is the most effective way of encouraging people (and pets!) to conform their behavior to the social rules. Desert’s got nothing to do with it. Instead, the hard treatment has to be shown to make the most sense relative to alternative treatments. So, while the hard determinist does and should reject the infliction of suffering solely for the sake of suffering—that is, the hard determinist must reject pure retributivism--I don’t see why she needs to reject the infliction of suffering per se. What she does insist upon is that the suffering be necessary to some individual or social end. In this way, the hard determinist can explain why people who are either delusional or innocent (or both) ought not to be subjected to hard treatment—especially if the hard determinist is a preventive or rehabilitative theorist rather than a deterrence theorist. After all, if someone either cannot conform his behavior to the social rules or he never violated the social rules in the first place, there’s nothing to rehabilitate or prevent. It’s only if the hard determinist opts for deterrence models of punishment that she opens the door to the concerns about punishing the innocent that you and others try to use as a reductio of consequentialist theories of punishment more generally. But that is a story for another day.

For now, I just wanted to point out that I think your present argument falls short of establishing your conclusion. On the one hand, I think you have begged an important question from the start by saddling the hard determinist with a view about the relationship between punishment and justice that she has grounds to reject. On the other hand, I think you have assumed the hard determinist must reject the infliction of suffering on offenders that I also think she has reasons to reject. If I am right, then your attempted reductio fails at least for hard determinists who prefer preventative or rehabilitative models of punishment that allow for the use of warranted hard treatment when this treatment is the most efficient means of getting offenders to play by the social rules.

Thomas, I mostly agree with your assessment here, and I understand and somewhat agree with the move to reject (b), "we ought to only punish the guilty."

I have a hard time translating that to practice or to society, though. We will never essentially be sitting in a relation as master to puppy, except for perhaps when children are younger. If we take some 25-year-old and are asking questions about whether we should apply some fairly stiff penalty, I hope that on such an occassion that we analyze on our own- our society's- failures in the situation (allowing the individual to be raised in a broken home; a failing school; to have dropped out of school; to go psychologically undiagnosed, etc.). That we accept that (somehow) we are as equally responsible for this individual's broken brain/mind as the individual herself is. In other words, our jails and gallows are not filled with the sons and daughters of the rich, of the "better" parents, of professors, and so on. The actions of criminals are almost always a greater indictment of "us" than of them.

The claim, at least for most crimes today, that this, some strict deterrent, is the best method to prevent such a crime from happening or from happening again seems to be a great copout from trying to find a better, more humane deterrent (lessening poverty and creating better schools/families is probably the best start). Anyways, in the end and for theoretical coherence, you may be right in that some strong sentence for the (non)-guilty may be necessary for a society, but I do not think today we can extract such instances away from other gross negligences of prevention of such crimes.

Dear Thomas,

Thanks for your post. Let me try to clarify why (and where) I think that the hard determinist needs to be worried about my argument. In one way you are courageous, in being willing to say that hard determinists have no inherent problem with punishing (=inflicting suffering upon) the innocent if this serves a good social purpose, and more generally in openly aligning hard determinism with consequentialism. But in another way, by talking about the infliction of suffering (as in the dog analogy) as a short, brief "training" period which is also in large measure made for the purpose of the person being trained, you make your life too easy.

Think about people who we believe that it would be unacceptable to have on the street - murderers, rapists, professional thieves, Mafia people. Most of these people are incorrigible, so the infliction of suffering will not change them for the better. In order to protect society, we have to keep them incarcerated, for many years. Thereby we also deter many others. We are not doing it for them, but for ourselves. Surely this is a large portion of the relevant people. And they are the folk we should be worried about.

HD believes that these people are all innocent and undeserving of punishment. Hence the thought that although we may incarcerate them, we need to compensate them for the deprivation ( i.e. funish rather than punish them), is surely morally attractive. You should welcome funishment, as an ideal, in preference to punishment. With funishment, we can both keep ourselves safe and all those people who after all do not deserve to suffer will not suffer. But my paper shows that unfortunately funishment cannot work.

If this is indeed accepted, then I think that it spells the end of HD as a distinct moral position. Again, if funishment were possible, then (on the assumption that there is no free will and desert) hard determinism would be morally wonderful: unlike the retributivists who inflict suffering on the innocent in the name of a false picture of free will, HD protects society but not at the expense of the (innocent) wrongdoers. So it is a tragedy, for HD, that funishment cannot work.

That, I claim, is really the end of the matter. What would have been a genuinely moral hard determinist picture of justice in action (switching from cruel punishment to funishment) turns out to be impossible; the vision cannot be implemented. HD's should acknowledge the significance of this result.

Of course one could go all utilitarian (or a similar consequentialist position), and see no problem about inflicting suffering upon the innocent whenever "the suffering be necessary for some individual or social end". But compared to funishment, that is a sordid result. We inflict suffering upon some innocent people merely as a means to improve the lives of others; society cruelly victimizes some of its members merely as a way to keep social order. I think that calling this "justice" is a travesty. And denying that justice matters is not a trivial stance.

Hi Saul,

This will rehash what others have said, especially Thomas (as well as some discussions we've had about this paper in the past) but let me try to set this out as succinctly as I can.

There are two questions being addressed:

1. Does anyone deserve punishment for their behavior?

2. Is it morally acceptable to punish people who don't deserve to be punished to achieve a social good that would outweigh the suffering of the undeserving person (say, the prevention of even greater suffering)?

The hard determinist is committed to answering 'no' to (1) but as far as I can tell is not committed to any particular answer to (2).

You are committed to answer 'no' to (2) but that's because of your fairly extreme Kantian commitments. You write:

"HD believes that these people are all innocent and undeserving of punishment. Hence the thought that although we may incarcerate them, we need to compensate them for the deprivation ( i.e. funish rather than punish them), is surely morally attractive."

But no, this isn't "surely morally attractive" to a consequentialist if the consequences of punish the (undeserving) criminal are better than those of funishing him. Later you write:

"Of course one could go all utilitarian (or a similar consequentialist position), and see no problem about inflicting suffering upon the innocent whenever "the suffering be necessary for some individual or social end". But compared to funishment, that is a sordid result

But this is only a "sordid result" to a non-consequentialist. The only moral goal for a consequentialist is producing the best consequences. Remember that punishing this undeserving person--even if that requires suffering on his part--will prevent greater suffering of equally innocent people. What is so "sordid" about that? You may find this conception of justice to be a "travesty", but that's a huge assumption on your part--and not one that the hard determinist needs to share. (And I should add that unlike Thomas, I am not a card carrying consequentialist. But I don't find the position to be sordid or a travesty by any means. It's a respectable moral position.)

One further point: by your reasoning, it seems that we all should also be committed to compensating people for being sick or disabled in some way, since they don't deserve their condition and the suffering that comes with it. But that's practically impossible as well. So if this is a paradox, maybe it applies to all moral positions, regardless of their commitments position on the free will issue.

Tamler,

I would put the two points this way:

1) Does anyone deserve punishment?

2') Is it ever morally permissible to punish anyone?

When you say "to punish people who don't deserve to be punished" you prejudice a particular answer. I'm sure if you flat out asked folks if it were permissible to punish those who don't deserve it, they'd say "no." But the answer to (2') has got to be "yes."

Hi Joe,

I don't think 2' captures the point I'm trying to make since it's consistent with the view that you can only punish people who deserve that punishment.

Of course, my (2) doesn't end with "deserve to be punished" It ends with "deserve to be punished to achieve a social good that would outweigh the suffering of the undeserving person (say, the prevention of even greater suffering)?"

Would this help?

2'': Is it morally acceptable to inflict suffering on people who don't deserve to suffer in order to prevent greater suffering of people who also do not deserve to suffer?


Hi Tamler,

Thanks for your post. I actually think that we are making important progress here. Let's try to see where we agree, and then focus on where we disagree. Let's assume hard determinism for the sake of this debate (although as you know I am in part a compatibilist). Given HD, we both agree that no one deserves to be punished. We also both agree with your 2 (or Joe's 2). If the existence of the world depended on punishing an innocent person, sure, I'm all for that. It would actually take less for me to agree. (I don't think that it would be just to do so, but sometimes there are good moral reasons to do unjust things.) So what is at issue?

I'll call this Free Will-Related Justice. The traditional paradigm of the free will problem goes something like this: free will is a condition for moral responsibility, MR is a condition for desert, and desert is a condition for just punishment. ("Condition" here is necessary, not sufficient.) If a person does something bad of his own free will, then it may be just to punish him, if not, then it never is. For, given the paradigm, he cannot deserve to be punished, and hence doing so would be unjust. Now, I think that almost invariably both libertarians and compatibilists share this paradigm, although they have a more demanding and a less demanding view about the required free will, respectively; both think their sense of free will can be met. The HD, as I understand her, agrees with the libertarian in the quest for a more demanding sense of free will (as a condition for e.g. just punishment), but is pessimistic as to whether it can be had.

So what does the HD do, if she still wants to have JUSTICE (based upon the FW paradigm)? IF funishment could work, she could opt for funishment. Since the criminals are compensated for being incarcerated, and are not made to suffer, on balance, funishment is arguably not unjust, even within the FW paradigm. THIS IS WHY I THINK THAT THE PROSPECTS OF FUNISHMENT ARE CRUCIAL FOR HARD DETERMINISM: if funishment could work, then even hard determinists could be just, within the free will parameters!

If my argument is correct, however, funishment doesn’t work. This, then, is a tragedy for hard determinism (of the sort I described). As a theory of JUSTICE (based upon the FW paradigm), the theory is, in practice, self-defeating, and breaks down. Even hard determinists should say that their theory should not guide our practice, insofar as justice is concerned. And if hard determinism is true, this is a tragedy for all of us. For, it means that we cannot have here justice.

This is not the end of the matter, morally, as there is still consequentialism (and perhaps other options, but I will set them aside). But I think that it is only to sow confusion to deny that insofar as the traditional free will related sense of justice is concerned, if HD is true, we have reached the end of the road.

I don't think that utilitarians or similar consequentialists have any intrinsic interest in justice, let alone the free will-dependent variety. They care only about utility. They usually admit this. There is a big issue how adequate utilitarianism is, as a moral theory. I am a normative pluralist, and therefore I think that it is often morally salient, and may occasionally even be decisive. But it would only confuse matters to pretend that it is a theory of justice.

So, to sum up, here are my main claims:

1. It is a great pity, for hard determinism, that funishment does not work. Otherwise we could have just punishment (of a sort) even under the traditional free will paradigm, and even as hard determinists. In other words, we could solve the problems which typically require punishment, without making anyone suffer.

2. If HD is true, then (given that funishment doesn't work), that is by and large the end of the idea of just punishment. When we will punish (make people suffer, for long periods, and for the social good rather than their own), that will be grossly unjust.

[There might still be good consequentialist reasons to do so, but that's not my concern here.]

It seems we are talking past one another based on what we take to be sufficient conditions for just punishment (and maybe based on what we take to be real, final moral values--more below). Never mind what the particular necessary conditions are, for they will only be met under assumption of what they collectively constitute as sufficient. For instance, say that one takes retributive punishment as a neccessary condition for justice, on the basis of taking such punishment as "leveling the scales of justice" where the evil-doer has added unnecessary evil globally into the world by libertarian ultimacy of FW, and thus real, negative-worth-to-the-evil-doer but postive-worth-for-justice punishment is required to level the universal scales (does sound Kantian doesn't it?). Then funishment is completely unacceptable because it cannot complete the sufficient condition for justice by failure of the necessary condition of retribution. But the compatibilist typically rejects the need for libertarian-type ultimacy, and thus the need for any global "leveling of the scales of justice". Justice is thus typically a function of societal satisfaction for compatibilists, and can be achieved typically by utilitarian means: if people in general are satisfied that evil-doing is adequately dealt with, then that's that. But even by those means of achieving justice, attempts at funishment would be a utilitarian outrage! Imagine even trying to implement such a program in anything like a semi-rational atmosphere of what is taken to be balanced justice irrespective of conceptual particulars. The center of what's just punishment is constituted by paying for wrong-doing in some real but generalized sense, and that sense has a huge pragmatic heart, and one that beats to cultural norms as well, which is why highly theoretical anti-compatibilist "why-wouldn't-we-just-use-a-pill-to-cure-the evil-doer?" complaints won't work (pun intended). The compatibilist can attend to these more practical matters on utilitarian grounds, but the incompatibilist must reject them.

And there are basic commitments to values here that are too frequently overlooked. Let's be frank: are people themselves of infinite or inestimable value (or should be if they aren't)? That will drive you one way on matters of justice and toward incompatibilism (and the hard variety if we are deemed to come up short). Are people just containers of value (pleasures, desires, etc.)? That will drive you other ways, and many of those are compatibilist about the relation of FW to those goods.

Saul,

Thanks for your reply. In your response to Tamler, you ask:

“So what does the HD do, if she still wants to have JUSTICE (based upon the FW paradigm)?”

And you cash out FW-related justice in the following way:

“Free will is a condition for moral responsibility, MR is a condition for desert, and desert is a condition for just punishment.”

But this is precisely why I was suggesting earlier that you seem to be begging the question (or at least misunderstanding hard determinism). After all, given that the hard determinist is a skeptic about desert, she will be a skeptic about “just” punishment if this is taken to mean “the punishment of the deserving.” But just because the hard determinist doesn’t believe in “just” punishment, it doesn’t follow that she doesn’t believe in warranted punishment. According to this non-FW paradigm of punishment, something like reasons-responsiveness and trainability (and not libertarian free will) are necessary conditions for legal accountability. Desert and justice simply don’t play a role. The issue is: Does punishing this offender make sense? That is, will it make a difference? If the offender is insane or factually innocent, then it won’t make sense. If the offender is not mentally disordered and factually “guilty” (i.e., causally responsible for the offense), then punishment may be warranted on preventive, deterrent, and rehabilitative grounds. Of course, the hard determinist will insist that no more suffering should be inflicted than is necessary to generate the desired consequences, but I don’t see why anyone would find that to be problematic.

Now, in your earlier response to me, you point out that there is a sizable class of “incorrigible criminals”—i.e., criminals:

“[W]ho we believe that it would be unacceptable to have on the street - murderers, rapists, professional thieves, Mafia people. Most of these people are incorrigible, so the infliction of suffering will not change them for the better. In order to protect society, we have to keep them incarcerated, for many years. Thereby we also deter many others. We are not doing it for them, but for ourselves. Surely this is a large portion of the relevant people. And they are the folk we should be worried about.”

You claim these allegedly incorrigible criminals pose a problem for hard determinism. As you say:

“HD believes that these people are all innocent and undeserving of punishment. Hence the thought that although we may incarcerate them, we need to compensate them for the deprivation (i.e. funish rather than punish them), is surely morally attractive. You should welcome funishment, as an ideal, in preference to punishment. With funishment, we can both keep ourselves safe and all those people who after all do not deserve to suffer will not suffer. But my paper shows that unfortunately funishment cannot work.”

But I am unconvinced that you have shown that the hard determinist is forced down the road to widespread (or even universal) funishment here since I don’t think the percentage of incorrigibles is as high as you suggest. For starters, a sizeable percentage of prisoners—at least in the U.S., which will be my focus here—are drug offenders. Any card carting hard determinist and/or consequentialist ought to think we should not be punishing these people in the first place, not because they are not deserving, but because punishing them doesn’t make sense—i.e., there are alternative treatments that would produce better societal benefits with less associated costs. Once we remove the drug offenders from the prison population, the next largest class of offenders are guilty of committing property offenses. For these criminals, studies have shown that job training, basic educational schooling, etc. make it less likely they recidivate—especially when they don’t have problems with addiction. So, I think that hard treatment plus training/schooling would drastically reduce the incorrigibility of these offenders. That leaves us with the violent offenders—both sex offenders and non-sex offenders. Within this population, a very high percentage of the offenders have Antisocial Personality Disorder—which involves an impaired ability to regulate one’s emotions/impulses. Fortunately, ASPD has been shown to be treatable pharmacologically. So, for these inmates, hard treatment coupled with medical treatment modalities will go a long way to minimizing the percentage of violent offenders who are incorrigible. However, there will nevertheless be some offenders who are genuinely incorrigible—but it will be a very small percentage if the rest of the offenders are treated in ways that reflect the gathering data on violence risk assessment and risk management. A small percentage of these truly incorrigible offenders will even by psychopathtic—a sub-class of ASPD. Here not only will treatment not work, it will make the offenders even more likely to recidivate. So, what should we do with the incorrigible psychopaths and non-psychopathic offenders? We should place them in forensic facilities designed to prevent them from committing further crimes while enabling researchers to study the genetic and social causes of incorrigible criminality. Does this count as funishment? Perhaps, but notice that once we realistically winnow down the number of offenders who will be apt targets for funishment, many of the problems you use in trying to run your reductio no longer apply—e.g., the exorbitant costs of funishing offenders.

In short, I think far fewer offenders are incorrigible than you assume. Once we correct for your mistaken assumptions about incorrigibility, funishment becomes markedly more feasible.

It is also worth pointing out that while I think funishment is more feasible than you suggest for the reasons I mentioned above, the grounds I would use to justify funishing the truly incorrible don't appeal at all to justice. Instead, the justification for funishing rather than punishing the incorrigible is that to punish them is to intentionally inflict suffering that doesn't yield any positive consequences. I don't reject punishment in these cases because it's unjust but rather because it's pointless--i.e., it yields senseless suffering. I suspect this is the paradigm most hard determinists would favor to the justice-based paradigm with which you try to saddle them. But, as always, I will let the other four or five hard determinists speak for themselves! :)

Saul, thanks. One thing I'm still confused about though is what the paradox or the self-defeating aspect of the HD position is supposed to be. I can see that there is a tragic feature of the position since many people who don't deserve to suffer (punishment) will still have to suffer. But that's a tragedy that applies to much of life, regardless of one's position on free will. True, the HD is actually instituting policies that lead to unjust suffering but only to prevent a greater amount of unjust suffering (if the HD is a consequentialist).

Of course, as Thomas points out, there are many cases where abandoning a belief in deserved punishment will lead to the criminal suffering less than he might have otherwise. So not every case of punishment will be tragic in this sense. Some, perhaps the majority, will be though. But where's the paradox? Why isn't this just a sad fact of life, one of many?

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