In the previous post, I noted that there are two important aspects of Scanlonian blame — relationships and meaning — and that extending Scanlon's account to cover criminal blame (punishment) was problematic with respect to the former in virtue of the fact that the necessary sort of relationship (whose impairment prompts blame) was missing in the citizenry/legal case. I want to focus here (in much briefer terms) on the second aspect, meaning.
For Scanlon, what blame responds to is the meaning of what the blamed agent did, which is itself a function of the reasons the agent acted on. These reasons will reveal something important about the agent’s attitude with respect to the blamer as well as the relationship they bear to one another. Meaning, for Scanlon, is crucially distinct from permissibility. Permissibility is simply about the question “What may I do?” and so focuses exclusively on what is actually licensed by the principles we ask one another to use in moral deliberation. What this means is that one may not be blameworthy for performing an impermissible action (as when the reasons one acted on don’t reveal any impairment in the relevant relationship), and one may be blameworthy for performing a permissible action (as when one’s reasons for doing so nevertheless reveal an impairment). Blame and blameworthiness are entirely about meaning: we are tracking the agent’s attitudes as reflected in his conduct.
Criminal punishment, on the other hand, is almost entirely about permissibility: we are simply tracking and responding to the agent’s conduct. First, one could never be punishment-worthy for performing a criminally permissible action: one’s conduct has to be illegal for one to deserve punishment. Second, and perhaps more controversially, one will always be punishment-worthy for performing a criminally impermissible action. Now one might object to this claim by pointing out that justifications or excuses count as ways of legitimately getting one off the criminal hook for impermissible actions, and these are precisely dependent on the agent’s reasons (so they would be about meaning). As Victor Tadros puts it, “[J]ustification depends upon motivation,” so that the “action of a defendant who breaches the criminal law for the wrong reasons is not justified even if he acts knowing all the considerations which make his act justifiable” (Criminal Responsibility, p. 280). And while an excuse may not mitigate all grounds for criticism, it ostensibly serves to remove attributability of the breach to one’s character for purposes of criminal responsibility in the first place, so that one isn’t criticizable for the illegal conduct given that one didn’t intend to do it, say (perhaps one was under duress).
I am suspicious that either justifications or excuses in the criminal law are really about the agent’s own reasons (and so about meaning), but that point actually does not matter for our purposes, and this is because justifications and excuses are both kinds of defences, whereas defendants are ultimately held criminally responsible only for offences, and these are primarily (albeit perhaps not entirely) about impermissible conduct, not meaning. Offences are actual public wrongs, types of conduct against which there are legally sanctioned reasons. They are crimes, in other words, with which defendants are charged. Defences, if successful, offer legitimate grounds for acquittal, where these “are compatible with the defendant’s conceding that the offence charged was indeed committed” (John Gardner, Offences and Defences, p. 141). So in offering a justification, I effectively say that, while I did commit the crime in question, there were good reasons for me to do so, reasons that were in some sense stronger than the legally sanctioned reasons against that conduct. And in offering an excuse, I say that, while there is some sense in which I committed the crime (my finger pulled the trigger, say), nevertheless that criminal action is not properly attributable to me (as perhaps I was provoked into pulling the trigger because I caught him with my wife and was enraged). In the former, I do indeed have good reasons to commit the crime; in the latter, I am justified in believing that I have good reasons, although I don’t.
Given the possibility of successful defences, we cannot say that a defendant warrants conviction only in virtue of having performed a criminal offense; we must say in addition that such warrant also depends on the defendant having no successful defence. But now we have a definition of criminal impermissibility, the violation of which is sufficient for punishment: offence without defence. The defendant’s actual reason(s)—the meaning of his action—is found, if at all, only in his defence(s). But if criminal impermissibility delivers grounds for punishment, and such impermissibility depends on the absence of (successful) defence, then the grounds for punishment may be delivered precisely without the sort of meaning Scanlon takes to be essential to blame. Blaming in the criminal realm is simply a response to people who have violated the law without justification or excuse. If their reasons for acting don’t acquit them, then they are just irrelevant to the sort of response the state appropriately has. In the criminal justice system, punishment is not a response to the defendant’s attitudes at all; it is instead a response solely to what he has done. In Scanlon’s account, however, blame is solely a response to the blamee’s attitudes; what she has done, if anything, merely reveals that real target to the blamer. Scanlonian blame, therefore, cannot be extended to holding responsible in the criminal realm. Punishment does not count as an instance of Scanlonian blame.