Wrongs and Crimes is about the relationship between wrongs and crimes! It is about the nature and sources of wrongdoing, why wrongdoing can make a person liable to punishment. In the light of that it is about the scope of the criminal law. The book covers far too many issues – everything from the nature of wrongdoing, to debates about free will, to the nature of harm and the harm principle, to consent, inchoate wrongdoing, and firearms possession. As taster, I focus only on one issue that I address in chapter 5: can punishment be justified in the face of challenges from free-will sceptics?
Consider this familiar manipulation argument against desert (a rough version Derk Pereboom’s manipulation argument):
- A person deserves to suffer punishment only if she is responsible for her conduct.
- If a person’s wrongful conduct is fully determined by evil scientists, who have manipulated her brain to ensure that she acts wrongly is not responsible for her conduct.
- There is no responsibility-relevant difference between a person whose conduct is manipulated by evil scientists in this way and a person whose conduct is fully determined by an otherwise identical causal process, but where evil scientists do not bring about this process.
- All of our acts are fully determined by a causal process relevantly like that in 2).
- Therefore no one is responsible for her conduct.
- Therefore no one deserves to suffer punishment for acting wrongly.
If this argument succeeds, it shows that one popular theory of punishment – retributivism – fails.
There is an equivalent argument that is a challenge to a wider range of theories of punishment – those that aim to justify punishment by showing that by acting wrongly a person makes herself liable to punishment. My own view – the duty view – is one such theory. The duty view is that punishment is justified because of the goals that it instrumentally serves – most importantly protective goals. Wrongdoers are harmed to serve these goals, and the challenge is to show why harming them for the sake of these goals does not wrong them. But wrongdoers incur enforceable duties to serve the aims of punishment by acting wrongly. It does not wrong a person to harmfully use her against her will to serve an end that she has an enforceable duty to serve. Therefore, it is permissible to punish wrongdoers to serve the ends of punishment.
Now consider this challenge: like retributivism, the duty view depends on the idea that wrongdoers are responsible for acting wrongly. But if so, the duty view, like retributivism, is vulnerable to challenges from free-will sceptics. Defenders of the duty view can meet this challenge by showing that even if manipulated wrongdoers do not deserve to suffer, they do incur duties as a result of acting wrongly. I offer a much fuller argument that this is so in Wrongs and Crimes, but here is a brief case based argument.
Bridge: Dorabella is on a bridge with Fiordiligi. A trolley is heading on a track under the bridge towards five people who will be killed if Dorabella does nothing. Dorabella can save the five only by throwing Fiordiligi from the bridge onto the tracks. Fiordiligi’s body will stop the trolley, saving the five, but Fiordiligi will be killed.
It is intuitively wrong for Dorabella to kill Fiordiligi.
But whilst harmful using is often intuitively wrong, it is not always intuitively wrong. Consider:
Wrongdoer on the Bridge: As Bridge except Fiordiligi has wrongly started the trolley in order to kill the five, simply because she will enjoy seeing them die.
It is intuitively permissible to use Fiordiligi to save the five. Here is a rough argument.
- Because Fiordiligi wrongly started the trolley she is required to save the five, even at the cost of her life.
- This duty is enforceable.
- It is often permissible to use a person to serve an end that she has an enforceable duty to serve, as long as the costs that she bears do not exceed those she is required to bear to serve the relevant goal.
- Therefore, Dorabella is permitted throw her off to save the five.
But free will sceptics may claim that premise 1) is unsound because it depends on the unreliable intuition that Fiordiligi is responsible for her wrongdoing. To meet this challenge, consider:
Manipulated Wrongdoer on the Bridge: As Wrongdoer on the Bridge, except that scientists have manipulated Fiordiligi’s brain to ensure that he acts wrongly. However, Fiordiligi fulfils all plausible compatibilist conditions of responsibility – his effective first-order desire to kill the five conforms to his second-order desires; his process of deliberation from which the decision results is reason-responsive, in that it would have resulted in him refraining from posing this threat were his reasons different; his reasoning is consistent with his character, because he is egoistic; but he sometimes regulates his behaviour by moral reasons; he is not constrained to act as he does and he does not act out of an irresistible desire.
It is plausible that Fiordiligi does not deserve to suffer because she is manipulated in this way. But is it plausible that he does not incur any duty to save the five in virtue of his wrongful attempt to kill them? To consider whether it is, imagine that you are Fiordiligi. You have started the trolley to kill the five, but now recognize that what you did was wrong. However, you also discover that scientists manipulated your brain to get you to act wrongly. Even if the manipulation weakens Fiordiligi’s duty to save the five, it does not plausibly negate it altogether. Surely she has a more stringent duty to save the five than an ordinary bystander. That is so simply because of the deep connection that there will be between his wrongful deliberations and acts and their deaths if he does nothing about it.
This suggests that even if sceptics are right that the manipulation argument should make us lose confidence in the significance of desert, it should not make us lose confidence in the idea that wrongdoers have duties to respond to their wrongdoing. Thus the duty view of punishment can respond to an important challenge from free-will sceptics.4