Scanlon on Blame, Part 2: Criminal Blame?

Part 1, for those of you old enough to remember, was posted two years ago here.  Yes, I'm a very slow thinker.

In Part 2, I want to explore the possibility of extending Scanlon's account of blame to include criminal blame.  For both legal and moral theorists writing on these issues, criminal responsibility (and the intelligibility of criminal blame) entails moral responsibility (and the intelligibility of moral blame).  I have begun to believe that this assumption is just false, or at least the relation between criminal and moral responsibility is far more complicated than people have believed.  In order to explore this idea, I want to look at recent, plausible accounts of blame to see how, if at all, they might ostensibly explain both moral and criminal blame.  I begin today by discussing one worry about doing so with Scanlon's view.  I hope (sooner this time!) to discuss another worry of doing so, and if I'm energetic enough, I'll then turn to George Sher's account of blame to explore the same issues.  If anyone's still awake by then, I may offer a diagnosis of the problem.  Warning: long row to hoe ahead!


Start with a brief review of Scanlon's account of blame, according to which my blaming you for Φ rests on a judgment of your blameworthiness for Φ (a judgment that you did something to impair our relationship) and consists in my modifying my attitudes and dispositions with respect to you in a way rendered appropriate by that judgment.   So how might this work with respect to state sanctioned punishment of criminals?  (Assume that there’s some rough sense of the “state” as being the relevant blaming agent here.)  When the state punishes someone for a crime, it judges him to be guilty—-blameworthy—-for that crime, and then, in the standard case, coercively restricts his freedom in response to that verdict, presumably in a way that is rendered appropriate by that verdict (so that, for example, the amount of punishment dished out is “proportional” in some sense to the crime).  This may seem tightly analogous to, if not a direct instantiation of, Scanlonian blame, for it at the very least involves the state’s modifying its ordinary dispositions to leave citizens alone to live their lives as they please (to the extent that doing so doesn’t interfere with others doing the same).  It also may involve modification of future dispositions, e.g., the default disposition to let its citizens vote.  There also may be a sense in which the state’s attitudes have been modified, such that the punishment expresses its disappointment or anger at what the defendant did (perhaps better: it expresses our disappointment or anger?).

There remain serious questions, though, about the extension.  In particular, can a Scanlonian extension to criminal blame preserve the two elements fundamental to his account, namely, its emphasis on relationships and meaning?  Here I'm just going to discuss the former.  Blame, for Scanlon, is a response to relationship impairments, to violations of the norms and expectations that are constitutive of various relationships.  The account seems most plausible with regard to intimate relationships—-friendships and loves—-for these are often long-standing and so thoroughly integrated into the very framework of our lives that their impairment is a truly personal blow, and so it can explain how blameworthy activity has a special significance within these relationships that does not extend to outsiders.  These relationships are often constituted by norms and expectations specific only to the parties of the relationship—-determined precisely by the parties’ actual attitudes toward one another-—and so the forms blame can take may vary as wildly as the forms personal relationships can take, a fact reflected throughout our blaming practices.  The account thus may seem to get less plausible as we move beyond this personal realm to the purely “moral” relationship in which we allegedly all stand to one another in virtue of our capacities for “understanding and responding to reasons.”   Here the way in which we stand to one another isn’t determined by any special attitudes we may actually have, and so it may seem that there just is no “relationship” involved for which the relationship-impairment story Scanlon gives could be true.  What he says in response to this worry, however, is that relationships don’t always have to depend on any actual attitudes between the parties to generate norms and expectations (e.g., the parenting relationship); rather, the existence of relationships with this generational normative power can merely depend on facts about the parties (parents are required to care for their children in virtue of the fact that they are their children and are dependent on them).  And so it may be with the moral relationship: “morality requires that we hold certain attitudes toward one another simply in virtue of the fact that we stand in the relation of ‘fellow rational beings’” (Moral Dimensions, p. 140).   We may thus impair this relationship—-defined, for Scanlon, in terms of a kind of mutual concern—-with strangers, just as we may do so with friends, and blame again takes the form of modification of attitudes and dispositions rendered appropriate by the relevant impairment, ranging anywhere from indignation to refusing to enter into business exchanges to failing to take pleasure in the other’s success.

Suppose we grant the extension of the relationship model to include the impersonal moral relationship.  Can it also extend (or at least apply) to the criminal realm?  If so, what “relationship” does the state stand in to those it “blames”?  These are hard questions, not least because it just isn’t clear precisely who the parties of the “legal relationship” would even be.  To the extent that the state “is us” in a democratic society, perhaps we might try to say that the criminal has impaired some sort of relationship that all of us qua citizens bear to one another, such that the response rendered appropriate by the impairment is punishment.  Call this the "citizenry relationship."  What might such a relationship consist in?  First, would it just be identical with the moral relationship Scanlon articulates?  It couldn’t be.  For one thing, there would be jurisdictional differences.  It is appropriate to punish only those who have violated laws under our state’s jurisdiction (whether it be municipal, state, or federal), whereas it could well be appropriate to morally blame anyone anywhere.  After all, it is only our fellow citizens who may appropriately be subject to our punishment response.  For another thing, as the case of strict liability reveals, we punish for violations of the law that do not count as moral impairments: if one engages in “consensual” sex with a minor that one had no way of knowing was a minor, one simply isn’t guilty of violating the demands for mutual concern that, roughly, constitute the norms and expectations of the moral realm, i.e., one just isn’t at moral fault in a genuinely unwitting statutory rape case.

More fundamentally, though, the facts giving rise to criminal norms and expectations are just different from those giving rise to the Scanlonian moral norms and expectations.  In the latter case, the relevant facts are about the capacities of the parties, namely, their abilities to understand and respond to reasons generally.  When these conditions are met in two people, they relate to one another as “‘fellow rational beings,’”  and it is ostensibly in virtue of these conditions that the norms and expectations of the moral relationship are instantiated between them.   In the criminal realm, what are the relevant fact(s) giving rise to the legal norms and expectations?  They certainly aren’t facts about our facilities with reasons.  Instead, they have more to do with external facts about our status as citizens and adults (where that borderline is specified at different points with respect to different laws and locales).  There are also internal facts about competence that matter here: competence to stand trial, or competence with respect to grasping the law (where someone lacking these competences could still have a basic facility with reasons).  Our question, then, is this: if these external and internal conditions were met in two people, would this be sufficient to put them in a “citizenry relation” with one another defined in terms of the norms and expectations articulated in the law?

I cannot see that it would, but the reason for this is surprising: there is no such relationship, at least in the terms we would need to extend Scanlon’s story about blame to the realm of criminal responsibility.  What makes blame appropriate is one party’s impairment of the relevant relationship, be it a friendship or a moral relationship.  This impairment consists in lacking the sorts of attitudes demanded by the norms of friendship or moral relating.  But in any event, we may think of these norms as providing the basic structure for our relating to one another, so that when one party violates the norms it weakens the structure of that relationship in some respect.  This is not to say that the content of the norms will always consist in rules for how the parties deal just with each other—it might specify, for instance, how the parties are to deal with entities outside the relationship as well—but the norms at least must provide tendrils between the parties, articulating the variety of ways in which they are connected.  This way of thinking helps clear up the notion of impairment a bit.  When the norms are in place and adhered to, they provide connections that are weakened via transgression by one or more parties.  The modification of attitudes and dispositions in which blame consists is thus appropriate insofar as it really involves a re-envisioning of the nature of the relationship itself, seeing it more clearly—if it is to go on—as different, weaker, than it was before.  Consequently, what distinguishes the norms of a relationship from regular old non-relationship norms (e.g., “Men should take their hats off in church”) is that the former are directed obligations, whereas the latter are not.   That is, the former, but not the latter, are owed to others, such that those to whom things are owed have a claim on those obligated to fulfill their obligations.  These directed obligations are symmetrically mutual in most relationships, though not all (parenting is one example where they are not).  Having a directed obligation connects one to those to whom the obligation is owed; violating such an obligation impairs that relationship by weakening the relevant connection. 

Are there such directed obligations in the criminal law?  I fail to see that there are, although I admit that this is a controversial position.   When, contrary to the legal prohibition against stealing, I steal some money out of a store’s till, the legal wrongness of my doing so does not consist in the store’s proprietor having a claim against me that I not steal from her.  This is hard to see, of course, because in such a case legal obligation overlaps with moral obligation, so it’s easy to conflate our thought that the store’s proprietor does indeed have a claim against me that I not steal with the illegality of doing so.  To see the case more clearly, then, we have to focus on a couple of things.  First, suppose that I steal $99, and suppose further that, due to various pragmatic difficulties in prosecuting petty crimes, it is only illegal in our society to steal items worth $100 and above.  Nothing about the proprietor’s claim against me would seem diminished or changed in such an imagined society, despite its not contributing to an illegality there.  And adding the criminal illegality to such theft in our actual society fails to involve any additional claims, as far as I can see.  Would, for example, others in society have a claim on me that is distinct from the proprietor’s moral claim?  This would be quite odd, stretching as it does the notion of directed claims to the breaking point: surely I don’t legally wrong others when I steal from the proprietor.

Second, consider criminal regulatory obligations, those involving no mala in se (evil/harm in itself), e.g., tax fraud.  These are very clear cases of nondirected duties: my obligation not to cheat on my taxes isn’t owed to anyone; no one has a claim on me not to do so.  It would seem, then, that criminal obligations with respect to mala in se crimes need not be thought of in any way as a fundamental difference in kind from criminal regulatory obligations, as suddenly a codification of directed duties; rather, it makes much more sense to think of what’s going on simply as an extension of nondirected duties to harm or victim-based cases.

If this is right, then the norms of the criminal law do not create a lattice of connections between citizens, for they don’t have the structure of directed duties.  This means either that there is no citizenry relationship or any relationship that does obtain is not of the sort that grounds Scanlonian blame.  Absent the relationship model within which Scanlon’s notion of impairment makes sense, criminal punishment cannot count as (Scanlonian) blame.

12 Replies to “Scanlon on Blame, Part 2: Criminal Blame?

  1. A few quick questions/comments nto adding up to anythign in particular:
    (1) Can’t non-citizens be charged with crimes so that being a co-citizen is unlikely to be the right relationship to focus on?
    (2) I don’t think that the comment about mala in se crimes is quite right. Surely the fact that we have a legally created relationship that involves paying a certain level of taxes can create a duty to pay taxes even if in the absence of such a law there would be nothing wrong with paying no taxes at all. And I see no obstacle to such duties being directed at one’s fellow citizens or co-taxpayers or whatever. There seems to be a duty to do one’s bit that is a moral duty. But it might only kick in once we have a legally binding set of rules telling us what one’s bit is.
    (3) The discussion above includes “It is appropriate to punish only those who have violated laws under our state’s jurisdiction (whether it be municipal, state, or federal), whereas it could well be appropriate to morally blame anyone anywhere.” This seems true but not necessarily a deep problem. I would think being criminally liable could have blameworthiness as a necessary but not sufficient condition for being found legally guilty.
    Anyway, as I said, these comments aren’t supposed to add up to anything — just off the cuff responses to some of what you say.

  2. Hey, Mark. Thanks for the questions.
    (1) You’re right that we charge non-citizens with crimes. I suppose I’m thinking of the citizenry relation as taking place amongst “Lockean” citizens, those who, either by express or tacit consent (e.g., by living amongst us and benefiting from our joint efforts) hand over certain legislative and punishment rights to the state.
    (2) I’d like to hear more about this, because it’s a central point of the post. First, I’m fine agreeing that we have a duty to pay taxes. This duty could also well be a moral duty (a duty to do one’s bit). But I simply can’t see this as a directed duty, one that anyone else has a claim on us to carry out. Another way to put this: whose rights have I violated in failing to pay my taxes? I’ve done something wrong, perhaps even morally wrong, but who have I wronged?
    (3) The jurisdictional point is indeed very minor, and I agree that one could maintain the view you do (blameworthiness as necessary but not sufficient for criminal liability). My point was simply that, from the get-go, there would be curious little differences between the “citizenry” and the “moral” relationship if the former existed. The main point, though, is that the former just doesn’t exist.

  3. David,
    Hmm, more on the second point . . . I guess I think that when there is an arrangement that requires all to do their fair share to get some benefit those it does seem to me that the duty to do one’s fair share is partly directed. I can think that the free rider in Canada is a scumbag for not doing his/her bit, but I seem to be warranted in having a special attitude toward American free riders who free-ride on the contributions of myself and other tax payers.

  4. Interesting. A couple of points:
    1. You ask what the relationship is that grounds criminal blame given that it cannot the purely moral relationship nor anything like friendships. You call it the citizenry relation, but argue that it’s not clear what the relationship is nor that it could ground criminal blame. I think this is a bit quick and that much more could be said for the citizenship relation. It’s interesting to note that the notion of citizenship has been one of the major concepts to be investigated in political philosophy since 90s. There’s a good overview of this in Kymlicka’s Contemporary Political Philosophy chapter 7. I’m not completely familiar with this vast literature, but it seems to me that there are rich notions of citizenship available in the political philosophy debates that might just support Scanlonian accounts of criminal blame. This would at least be an interesting research topic for someone.
    2. A minor point about tax evation: I find it hard to accept the point that paying taxes is not owed to anyone and that no one has a claim against a person who evades taxes. At the moment, here in the UK, hundreds of thousands of people are layed off from the public sector because allegedly the state has run out of money. At the same time, the tax evation by corporations and wealthy individuals is ever more general. However, we also have many protest movements in which layed off public sector workers and the often poorly off people who benefitted from their services protest that the corporations and the wealthy owe it to them that they pay their taxes. As far as I see, people who evade taxes wrong this people many of whom are already amongst the worst off in the society.
    3. Finally, I think you might read the directness of Scanlon’s account a bit too strongly. There’s an interesting short discussion of blaming from the third person perspective on page 169 in Moral Dimensions. You might think that, if the society did not criminally blame the criminal through punishments, it would fail to recognise the victims legal rights for protection. This would be a way of impairing the society’s relationship to her which is wrong by the standards of the citizenship-relation. For this reason, the society is required to impair its relationship to the criminal. What this shows is that the society cannot uphold standard citizenship relations to both the criminal and the victim. Impairment is done anyway.
    I think that there’s also a way of arguing that criminal actions legally wrong everyone. In a democracy, ideally, we all have contributed to setting the basic legal rules that govern our co-living. Violating these rules does express certain attitude of indifference and contempt towards all of us as deliberators and participants of the democratic process. For this reason, those actions do express impairing attitudes towards all of us which justifies distancing ourselves from the criminal through the state actions set in law. I guess the idea here is that democratic decision-making is the glue that binds all citizenships to the relationship that can be impaired.

  5. Mark: Granting that the citizens of a country are in some sort of (non-contractual) arrangement requiring each to do his fair share, my special negative attitude toward some fellow member who cheats on that arrangement isn’t necessarily yet the sort of complaint that would reveal there to be any sort of distinct (i.e., not just moral) relationship structured by directed duties. My complaint of unfairness, say, at your getting some sort of advantage over me via your tax fraud isn’t yet a claim-based complaint. Consider J.J. Thomson’s example: you and I are sitting next to one another during an exam, and my one and only pencil breaks. You’ve got twenty sharpened pencils sitting next to you. I have good grounds to complain about the immorality of your not lending me one of your extra pencils, but I don’t have a claim on you that you do so.
    Jussi: I worried that there could be a “vast literature” on one of these issues, as I’ve really just begun exploring them. Thanks, then, about the tip on citizenship. I obviously need to look at this stuff.
    On the tax evasion point, interesting. It really does depend on whether or not you view taxation as explicitly redistributive, I suppose, but then you’d also have to know much more than you do about where the precise channels of redistribution are. It seems to me that only if there’s a specific pipeline from Simon von Poppinjay’s estate to me (laid off worker) that I have a claim against him that he pay his taxes. But this isn’t how things work at the state level: the collected taxes all go into a pool that’s then funneled to various outlays, some of which include (some of) the poor. (Incidentally, I think the primary complaint you’re referring to isn’t about tax fraud but perfectly legal ways of avoiding paying taxes in one’s home state, but that’s not a subject of criminal responsibility.)
    Finally, thanks for the reminder about Scanlon’s remarks on p. 169, about why the family of a murder victim may get so upset about perpetrators of the crime not being punished. The idea is that “there is something inappropriate about being asked to treat [the perpetrators] as respectable fellow citizens, and to accept others’ treating them in this way.” But what’s doing the work here is the moral relationship, not any sort of citizenry relationship: you thus morally wrong the victim in not publicly blaming the criminal, and insofar as the state is best situated to do so, that’s the entity that ought to carry it out. But then what to do in cases of criminal wrongdoing in which there is no victim or (as in the strict liability case) there is no moral fault? The sort of blame engaged in by the state in these sorts of cases is perfectly akin to the blame in the victim-based cases, yet I can’t see what relationship it is (with its grounding in directed duties) that’s been impaired. I think your last suggestion could be promising, for it attempts to get a citizenry relation out of a moral, contractualist one. Much more needs to be said, then, about the details of the contract, the way in which we get justification for coercive enforcement of a subset of (sometimes non-victim-based) rules, and so forth. Perhaps this is included in the citizenry literature, though.

  6. David, We might just have different views on the duty to pay taxes. So I won’t keep this going much longer. But on behalf of the view that the duty is owed to other members of one’s own society, I purposely contrasted my attitude towards citizens of another country who don’t contribute with my attitude towards those in my own country because I thought it made a case for a kind of legally created community-directed moral requirement. Something which was not owed to other citizens absent the law winds up being owed after the law sets the relevant standard. Perhaps we also need a fact of general compliance to get the obligation off the ground. But I think legally mandated practices of cooperation create the sort of relationship that Scanlon wants to employ in his account of blame.
    Also, I just don’t think the pencil analogy is apt. The public has a right to have tax laws enforced against flagrant cheaters, whereas there is no analog in the pencil case.
    Anyway, that’s how the tax case looks to me.

  7. Suppose we are in a small hunter-gatherer tribe and people will go hungry if each adult doesn’t bring in a sufficient amount of food. In the circumstances, failing to bring in enough will get you publicly chastised and, eventually, exiled from the tribe. I would call this blaming, and say that each adult has a directed duty to the other tribe members to bring in a certain ration of food.
    Now say the tribe gets appreciably bigger. The economic situation doesn’t change, but the juridical apparatus does. It is harder to keep track of who brings in what, and therefore informal sanctions are less easy to bring to bear. So the job of keeping track of food-production is centralized in an accountant, and the job of public shaming or exiling is centralized in a court. I would call this a legal system, and say that those chastised or exiled by the court have been found guilty of a crime.
    It seems to me that the directed duties have not changed, nor have the economic relationships among tribe members changed. (You still need me, or enough people like me, to bring in my food, and vice versa.) What has changed is the close correlation between one’s economic productivity and one’s emotional tie to another individual—everything is now mediated through a bureaucracy. That is, you will not necessarily know, and therefore not necessarily care, if I don’t bring in my ration, though you may care if you find out. The informal sanctions, driven by personal relationships, have been replaced by formal sanctions carried out by law. But the objective economic relationships between individuals remain unchanged.
    I am not sure how that picture fits with Scanlon’s. But it helps me, for now at least, in thinking through the issue.

  8. Mark: I don’t want to flog it either, but I do want to get things right, and your reactions are very helpful here. I recognized your purpose in distinguishing between the Canadian tax cheat and the American one. I was trying to explain your differing attitude in the latter solely in terms of its being a breach of the (non-directed) moral duty of fairness or fair play. Thus the pencil case as an analogy. Suppose we add the following classroom rule: when you have over ten pencils, report them to the teacher. What will be done with them is up to the teacher, who sometimes redistributes them to students in need, and sometimes uses them to plug holes in the classroom’s infrastructure. I see you hide your extra pencils, and mine breaks. You ought to give me a pencil, although I don’t have a claim on you to do so. You also ought to report your extra pencils, but I don’t have a claim on you to do so, it seems: what’s done with your extra pencils isn’t something over which I have any say, and none of your specific pencils may be distributed to me in the end.
    You say that “The public has a right to have tax laws enforced against flagrant cheaters,” but talk of “the public’s right” glosses just what it is I want to know: do I have that right, that claim, as a member of that public? Or is there some other entity brought into existence (“the public”) that does, albeit no individual member does? I think you think the former is the case, but then the obligations start to pile up like mad: tax cheats in the US (as well as murderers, rapists, etc.) violate 308 million obligations every time they break the law, duties directed to every other citizen. Or perhaps there’s just one directed duty, to The Citizen, the representative member of the society from which all but the conditions of citizenry have been abstracted away. This would be interesting, but I have a very hard time thinking of what it would be like to have directed duties to such “entities” or how they could be in relationships.
    Heath: I want the story about criminal blame to be as ecumenical as possible w/r/t the origin or justification of the criminal justice system in place. So while the story you tell is one possibility, here’s another: I’m born into a state ruled by a king who has recently instituted a set of laws. As it turns out, they’re completely identical with our own set of laws. This is no coincidence, as he has designed the criminal justice system as an homage to the U.S., which he greatly admires. In violating these laws, I am subject to criminal blame. What is the relationship here that I have impaired?

  9. David,
    My (reviseable) present opinion is that you have duties to all of your fellow citizens. (There are two versions of this: you have 308 million duties, one to each citizen, or you have one duty to the collective body of citizens. I lean toward the former.) When you cheat on your taxes, you violate your duties to them. They do not, however, have the power to enforce the legal consequences on you; that power has been outsourced to Leviathan. This may make it seem like you have not violated any duties to them. But we need to separate (a) the party I violate by my breach of duty from (b) the party who enforces the consequences of that violation. Nothing about the origin of the duties shows up in this claim.
    Your king example raises an interesting wrinkle. As it stands his laws are (roughly) just and I would not change the above story for this situation. However, consider a North Korean law to inform on your parents if they say anything disloyal to the regime. I do not think you violate any duties to anyone if you ignore this law (and you do violate duties if you obey it). The regime, of course, will punish you if it finds out you are breaking the law. But this should be thought of as reacting for the “wrong kind of reasons”—just as you can blame someone out of pique, when they have done nothing wrong but have inconvenienced you.
    Does that help? Is it just the sheer number of obligations we stand in, on this picture, that turns you off?

  10. Heath: Yes, the number of obligations is bothersome on this story. Indeed, there’s something special about directional duties that’s lost on the story in which I owe all sorts of duties to everyone every which way I turn, namely, the special sort of response rendered appropriate by violations of clear-cut directional duties. When I have a clear claim on you — when you are obligated to me, to do X and you don’t, resentment is thereby rendered appropriate. I have a clear complaint against you in this case, and this has placed me in a special sort of, well, relationship with you, the terms of which you’ve undercut. If your failing to report various items on your tax returns constitutes a violation of a directed duty to me, a stranger, then my resentment of you ought thereby to have been rendered appropriate. This is what strikes me as false, or at least implausible.
    I should note that I’ve been inspired here by the work of Gopal Sreenivasan, in his 2010 article in Ethics on “Duties and their Direction.” He simply notes in passing (p. 473) that there’s a standard candidate for filling the role of nondirected duties, namely, the duties of the criminal law. But he passes over any defense of that stance: “No one, I think wishes to deny that there are duties imposed by the criminal law. But it remains controversial whether these duties are directed or not, that is, whether they correlate with claim-rights or not.” He then goes on to considere instead duties of generosity and kindness. What he said about criminal law duties, however, struck me as not so controversial after all, especially in light of other disanalogies I’ve been finding between the criminal and moral realms. More on this in the weeks to come.
    Finally, regarding your N. Korea example, I think the presumption for criminal responsibility is that the defendant has breached just laws.

  11. David,
    I think a duty can be considered directed as long as there are some people who stand in some sort of special position to complain about its violation and some who aren’t. So even if there are lots in the former group and few in the latter a duty will continue to be directed. (At least as I presently think about this – I don’t claim to have thought about this a whole lot.)
    But I don’t think we need to think of a multiply directed duty as really a bunch of atomic individually directed duties. Is a duty to take care of one’s family when needed (say) really just a bunch of duties, one each to one’s mother, father, sister, brother, spouse, child, second child, etc? And do we get another duty of this sort when our family grows? This seems like a bookkeeping question and I don’t tend to think that the way one keeps books matters.

  12. Oh, I failed to comment on the revised pencil story; it is a somewhat better analogy now. I wouldn’t put much weight on my intuitions about it, because they may be driven by my views about taxes. Still it seems to me whether there is a directed duty to those who lack pencils when I fail to report a surplus, may depend on the purpose of the reporting rule, and also perhaps on the expected operation of that rule to meet pencil shortages.

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