Basic Desert, Reactive Attitudes and Free Will

Maureen Sie, Derk Pereboom

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317362951
• Edition: 1
• Topic: Philosophie
• Subtopic: Histoire et théorie de la philosophie

Basic Desert, Reactive Attitudes and Free Will addresses the issue of whether we can make sense of the widespread conviction that we are morally responsible beings. It focuses on the claim that we deserve to be blamed and punished for our immoral actions, and how this claim can be justified given the philosophical and scientific reasons to believe that we lack the sort of free will required for this sort of desert.

Contributions to the book distinguish between, and explore, two clusters of questions. The first asks what it is to deserve to be harmed or benefitted. What are the bases for desert – actions, good character, bad character, the omission of good character traits? The second cluster explores the disagreement between compatabilists and incompatibilists surrounding the nature of desert. Do we deserve to be harmed, benefitted, or judged, even if we lack the ability to act differently, and if we do not, what effect does this have on our everyday actions?

Taken in full, this book sheds light on the notion of desert implicated in our practice of holding each other morally responsible. This book was originally published as a special issue of Philosophical Explorations.

Giving desert its due

Thomas M. Scanlon

Department of Philosophy, Harvard University, Cambridge, MA, USA

I will argue that a desert-based justification for treating a person in a certain way is a justification that holds this treatment to be justified simply by what the person is like and what he or she has done, independent of (1) the fact that treating the person in this way will have good effects (or that treating people like him or her in this way will have such effects); (2) the fact that this treatment is called for by some (justified) institution or practice; or (3) the fact that the person could have avoided being subject to this treatment by choosing appropriately, and therefore cannot complain of it. I will explore the implications of this understanding of desert for the role of desert-based justifications of blame, punishment, and economic reward.

Joel Feinberg wrote, “In respect to modes of treatment which persons can be said to deserve, then, we can distinguish three kinds of conditions. There are those whose satisfaction confers eligibility (‘eligibility conditions’), those whose satisfaction confers entitlement (‘qualification conditions’), and those conditions not specified in any regulatory or procedural rules whose satisfaction confers worthiness or desert (‘desert bases’)” (Feinberg 1970, 58). Feinberg goes on to say that desert bases must be “some possessed characteristic or prior activity” of the person in question.

Similarly, Derk Pereboom, describing the idea of “basic desert” that he takes to be presupposed by the variety of moral responsibility that has been at issue in debates about free will, writes,

The desert at issue here is basic in the sense that the agent, to be morally responsible, would deserve to be the recipient of the expression of such an attitude just because she has performed the action, given sensitivity to its moral status; not, for example, by virtue of consequentialist or contractualist considerations. (Pereboom 2012, 189; Sher 1987, 7)

Following Feinberg and Pereboom, I will say that what is distinctive about a desert-based justification for treating a person in a certain way is that it claims that that treatment is made appropriate simply by certain facts about that person or what he or she has done. The “simply” in this formulation is intended to exclude justifications by appeal to the effects of treating the person in that way and justifications that appeal to the fact that this treatment is called for by some institution (that is itself justified on some basis other than an appeal to desert). So, for example, to discipline a child by depriving him of a treat “because he deserves it” is a different thing from doing this because this will improve his character or make him likely to behave better in future. Claiming that people who have worked hard all their lives deserve a good pension is also different from claiming that they are entitled to pension benefits according to the regulations of the Social Security System or the pension scheme of their employer.

My aims in this paper will be to examine this idea of desert-based justification and to consider the role of such justifications in answering questions about legal punishment, moral blame, and economic justice.

In defending some desert-based justifications, I will be departing from positions I have taken in earlier work, in which I expressed skepticism about justifications of this kind (Scanlon 1988, 188–89; 1998, chap. 6). There were two reasons for this skepticism. First, because I identified moral desert with the idea, which I regard as morally repugnant, that it is good that people who have done wrong should suffer, I was inclined to reject the idea of desert altogether. Second, interpreting and commenting on Rawls’ views on distributive justice, I endorsed the idea that the only sense of desert relevant to questions of distributive is what I called institutional desert – the sense in which a person deserves a form of treatment if a justified institution specifies that he or she should be treated in that way. I expressed skepticism about desert in a “pre-institutional” sense that is independent of what particular institutions require and can serve as a basis for assessing whether institutions are just. Each of these skeptical views now seems to me to require some modification, which I will discuss in the course of this paper.

Even though there is a difference, as Feinberg noted, between claims of desert and claims of institutional entitlement, institutions can have a role in determining desert bases. For example, a person who has achieved a certain score on a test is entitled to the grade that this makes appropriate. However, as Feinberg also recognizes, it makes sense to say that a person who did less well on the test deserved a higher grade than he received. This can be explained by the fact that the point of an institution of grading may be “to make as accurate as possible an appraisal of the degree to which [the person or thing graded] possesses some skill or quality” (Feinberg 1970, 65). And it may be, in a given case, that a person’s performance on a test is not an accurate indication of the degree to which that person possesses the relevant skill. She may have just “had a bad day”. She therefore deserved a higher grade (the purposes of the system of grading would be better served if she had a higher grade) even though she is not entitled to this grade. This desert claim depends on the institution of grading (that is to say, on what the purposes of that institution are) even though it is not a claim of institutional entitlement. It is quite different from a claim that a person deserved to do better on the test because he tried so hard. Trying hard does not entail having a higher level of the skill that the test is intended to measure and that grades are intended to represent.

The example of grading illustrates one way in which certain forms of treatment can be made appropriate simply by what a person is like or what he or she has done. Awarding a grade or a prize is an act of expression. As Feinberg says, it is intended to communicate that the subject has a particularly high level of some skill or other quality. Awarding such a grade or prize is therefore inappropriate if the subject does not possess this quality. Hence, the possession of this quality is at least part of the justification for such an act of expression.

It need not be a full justification, however.¹ There are many ways of expressing facts about a person’s level of skill and these modes of expression have costs. Awarding grades and prizes in certain ways, with certain kinds of fanfare or ceremony, makes some people feel good but makes others feel sad and disappointed. Inflicting these costs on people is not justified simply by the fact that the message thereby conveyed is accurate. If the distinctions marked by the system of grading are pointless, then the costs of publicly awarding them with great fanfare may be unjustifiable. Similarly, expressing moral blame often involves psychological pain for those who are blamed, even if inflicting this pain is not the purpose of that expression (as the infliction of pain is part of the purpose of acts of punishment) (Feinberg 1970, 67; compare Pereboom 2012, 193). So something needs to be said about when and why such costs are justified.

Broadly speaking, these costs might be justified in two ways. The first is by appeal to the beneficial consequences of the policy that has these costs. The second is by arguing that, for one reason or another, the individuals who bear these costs cannot object to them. Desert may play a further role in arguments of the latter kind. These two forms of justification are not simply alternatives: they can be employed in tandem and in many cases an adequate justification will involve both in some form. This is illustrated by the case of legal punishment.

Legal punishment

Legal punishment has two aspects: it condemns certain actions as wrongful and it involves some form of hard treatment, such as a fine or loss of liberty (von Hirsch 1992, 1993). Both elements figure in the positive case for having an institution of punishment. Governments owe it to their citizens to affirm their rights by condemning serious rights violations (whether or not this makes those violations less likely to occur). They also owe it to their citizens to discourage violations by condemnation and, insofar as this is necessary, by threatening wrongdoers with forms of hard treatment (Scanlon 2003, 219–33). However, these two elements are separable: a public response to wrong doing could express condemnation without involving any form of “hard treatment”, so a justification for the former need not also justify any particular form of the latter.

Both of these aspects of punishment have costs: individuals have good reasons to want not to be condemned as well as reasons to want not to be subjected to fines or imprisonment. These costs play different roles in the two arguments for punishment that I just mentioned. Threats of condemnation or of hard treatment deter because they are things most individuals want to avoid. However, condemnation of wrongdoers is owed to victims simply because of its expressive content, not because those who are condemned have reason to dislike it. The question we are concerned with, however, is how these costs can be justified.

Fines, imprisonment, and other forms of hard treatment are not justifiable unless they are necessary and effective means to protect citizens against serious wrongs. However, an appeal to consequences alone is not sufficient justification. Policies of vicarious punishment of the members of criminals’ families, or exemplary punishment of innocent people chosen at random and framed, might deter, but would not thereby be justified. This might be explained by appeal to the expressive content of punishment: those who would be subjected to hard treatment under such policies would not be properly condemned, since they have done no wrong. However, this does not seem to me to be the whole story. There is also the important fact that these individuals would have no opportunity to avoid being treated in this way by choosing appropriately. Insofar as a policy of inflicting hard treatment on wrongdoers is justified this must be not only because it is an effective way to protect others from being wronged but also because this policy inflicts this treatment only on individuals who have had a fair opportunity to avoid being subject to it (Hart 1968b, 22–3).

This dual justification of the costs of punishment involves both of the forms of argument I mentioned above: an appeal to consequences and appeal to factors that undermine the objections of those who are punished. An idea of desert might, however, be invoked to play the latter role. It might be said that wrongdoers cannot complain of the hard treatment involved in punishment because these forms of treatment are deserved: given what a wrongdoer has done, these forms of treatment are appropriate, and even good things to occur, in part because wrongdoers have reason to dislike them. And, it might be added, this is so only if these wrongdoers could have avoided doing what they did. Such a claim seems to me quite false. It is never a good thing, morally speaking, for anyone to suffer, no matter what they have done, and this is so quite independent of whether those who might be made to suffer have free will or not.

I was earlier led to reject desert altogether because I identified desert with the thesis that it is a good thing for people who have done wrong to suffer or at least that this is less bad than the comparable suffering of people who have done no wrong.² It now seems to me a mistake to identify desert with these retributivist ideas. However, even if retributivism is properly rejected, desert-based arguments still have a role in the justification of moral blame and the condemnatory aspect of punishment. It is reasonable to dislike having one’s moral faults publicly acknowledged. However, those who have done wrong cannot object to bearing this cost. They have no moral claim that their faults should be ignored in order to spare them this psychological discomfort, because this public acknowledgement is an appropriate response to what they have done. This does not mean that just any form of public condemnation is justified. Some practices of shaming may involve unjustifiable levels of humiliation. The point is just that official public acknowledgement of the faults of wrongdoers is made appropriate by these faults themselves (it is deserved on this basis alone), and they therefore have no moral claim against it. (By “the costs of the condemnatory aspect of punishment” I will henceforth mean just the costs of such official acknowledgment).

Earlier, I distinguished between two kinds of arguments in support of punishment: arguments appealing to the consequences of a policy of punishing wrongdoers and arguments that undermine the objections that individuals may have to bearing the costs of being punished. The latter category includes both appeals to desert and appeals to the fact that individuals have a fair opportunity to avoid being punished, but these two forms of argument are distinct and independent.

The fact that those who suffer a harm will have had a fair opportunity to avoid it, by choosing appropriately, may make a policy that allows such harms to occur more defensible.³ However, it does not presuppose or do anything to show that it is in any way good that people who have taken the risk of such harms should suffer them. By contrast, desert-based arguments of the kind I am considering maintain that certain kinds of response are made appropriate by what a wrongdoer has done: that others are justified in responding in these ways simply by the faults displayed in the wrongdoer’s conduct.

It might, however, be said that the faults in question – the features of the agent and what he or she has done that make blame appropriate – intrinsically involve doing certain things or having certain attitudes, freely; so a version of “opportunity to avoid” is built into the relevant desert bases. Whether this is so depends on the kind of freedom that is supposed to be in question. Here Hume seems to me to have been basically right (Hume, 1978, 407–12).⁴ If someone did wrong only because he was forced to do this by threats or by the lack of acceptable alternatives (if he lacked what Hume called the liberty of spontaneity), then this can change the kind of response that is appropriate because it changes facts about the attitudes reflected in the agent’s action. It is one thing to harm another person out of carelessness or spite and something different (even if perhaps still wrong) to do so only because one believed this was necessary in order to avoid a greater harm to oneself. However, the fact that an agent lacked what Hume called the liberty of indifference, that is to say, the fact that his psychological make-up was determined by conditions in the past, over which he has no control, and that, given this make-up, it was inevitable that he would act the way he or did, does not change the attitudes he in fact has. Purely condemnatory responses (as distinct from “hard treatment”) are justified simply by what an agent is in fact like, psychologically, as revealed in his or her actions.⁵ This justification does not require that the agent had control over (was responsible for) becoming such a person. If an agent does have some control over this, then he or she may be open to additional criticism for failing to exercise it properly – failing to take due care in regard to his or her own moral development. However, such control is not required in order for their present dispositions to be ones that are appropriately condemned. In Feinberg’s terms, a desert basis need not itself be deserved.

To sum up this discuss...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• Introduction
• 1. Giving desert its due
• 2. Desert, fairness, and resentment
• 3. A Strawsonian look at desert
• 4. Some theses on desert
• 5. Basic desert of reactive emotions
• 6. Blame, desert and compatibilist capacity: a diachronic account of moderateness in regards to reasons-responsiveness
• 7. Choosing freedom: basic desert and the standpoint of blame
• 8. Basic desert, conceptual revision, and moral justification
• 9. Merit, fit, and basic desert
• Index