«Thank you very much for the kind invitation to present the attached paper. Naturally, I will be grateful for any and all reactions. In the event, ...»
Most practices are justified by the good consequences at which they aim. In such cases, if the distinction between core and peripheral cases of the practice is drawn (as I draw it in the case of punishment) between those cases the practice is aimed at, and those which arise by accident, we can anticipate in advance that the latter will be justified, if at all, on the grounds that the goods aimed at and secured in the core cases are sufficient to outweigh the bads produced as unavoidable byproduct. Such is what we anticipate in the surgery example, and also what we discover, making the strategy of dividing the practice into its core and peripheral cases entirely unilluminating. The reason why it turns out that the strategy of separating core from peripheral cases of punishment proves illuminating is precisely because and insofar as justification in the core cases proceeds by cancellation instead of by override. Insofar as the considerations that justify the core cases (against the demand bases on which I focus) are not themselves reasons to engage in the practice, they do not spill over, as it were, to justify the peripheral cases, making it necessary that other considerations (reasons) be brought to bear.
Draft (October 27, 2006) claim that any actual or contemplated conduct, X, is in need of justification means that “ordinarily” or “presumptively” one ought not to X, on account of some demand basis, y. It follows that some consideration, z, provides justification if, given z, it is not the case that, by virtue of y, one ought not to X. More generally, the argument put forth in Parts III and IV thus depends on a particular conception of what it means for something to require justification. I have argued that X can be justified either by supplying overriding reasons to X or by cancelling the supposed reason(s) not to X. But perhaps this is not so. Rather, it might be argued, justification can be supplied only by overriding reason, in which case an admission that punishment is in need of justification entails a rejection of the possibility that the demand basis can be cancelled. It might be objected, that is, that my entire argument rests on a failure accurately to capture what it means for conduct to be in need of justification.
On the competing view I have in mind to claim that any actual or contemplated conduct, X, is in need of justification means there exists reason against it.95 If true that the only actions or activities needing justification are those opposed by reasons then to claim that X is in need of justification by virtue of y is simultaneously to deny that the reason, contained in the demand basis y, not to X is cancelled. Because a cancelled reason is not a reason, if the reason that purportedly makes X wrong were cancelled, then X could not need justification. So to endorse Jn(P) itself necessarily precludes that punishment could be rendered permissible by cancelling reasons not to punish. If reasons not to punish were cancelled, then Jn(P) would be false.
Perhaps this is the better way to think about justification. Perhaps clarity would be advanced were all to agree that only wrongs can stand in need of moral justification. Although skeptical,96 I am willing to be agnostic. What I deny is the empirical claim that this view of what Why should we think of demands for justification in this way, as necessarily resting on actual reasons as opposed to merely apparent ones? Very possibly, the answer lies in my earlier claims that an action is in need of justification only if “ordinarily or presumptively” one ought not to do it, and that justification is demanded if there exists “apparent or putative reason” against it. It is natural to translate these passages into a claim that an action needs moral justification if and only if it is prima facie wrong. And it is also natural to suspect that the “prima facie” that is here qualifying “wrong” is the same “prima facie” that Ross employed to qualify “duty.” If Ross’s notion of prima facie duty is as incoherent as some critics have maintained (see, e.g., John Searle, “Prima Facie Obligations,” in Practical Reasoning ed. Joseph Raz (Oxford: Oxford University Press, 1978): 81-90), then it might seem to follow that prima facie wrong is likewise untenable. Indeed, this appears to be Gardner’s view. Endorsing Searle’s criticism of Ross, Gardner has contended recently (now writing with Timothy Macklem) that “Prima-facie reasons are just reasons, prima-facie duties are just duties, and correspondingly, prima-facie wrongs are just wrongs.” Gardner & Macklem, “Reasons,” p. 467 n.34. If so, then the proposition (which I might be thought to endorse) that “what is in need of moral justification is a prima facie wrong” must become “what is in need of moral justification is a wrong.” Allow me two points in response. First, Gardner’s reliance on Searle is misplaced, for Searle misunderstood Ross. Searle argued that the term was ambiguous and that neither of the two meanings Ross gave it was tenable. According to Searle, applying the qualifier “prima facie” to duty could mean either that the putative duty is not an actual duty, merely an apparent one, or that the duty, though actual, is overrideable rather than absolute. Given this ambiguity, and given difficulties with both conceptions, Searle proposed that we retire the term. But Ross intended “prima facie duty” to signal neither of the contrasts that Searle supposes (apparent as opposed to actual, or overrideable as opposed to absolute). No doubt Ross invited misinterpretation by using what he conceded was infelicitous language. Ross, The Right and The Good, p.20. Still, he is best read as aiming to mark, not a distinction between types of duty, but rather a distinction between stages of reasoning about duty. “[A]n obligation can change status or ‘mode’ while ‘all things are being considered,’ changing from a prima facie to an actual obligation during the consideration of evidence.” A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), p. 27. See also Philip Stratton-Lake, “Introduction,” in W.D. Ross, The Right and the Good (Oxford: Oxford University Press, 2002), pp. xxxiii-xxxviii; Lucas, “The Lay-out of Arguments,” pp. 285-87.
it means to furnish justification is embraced by all who take themselves to endorse Jn(P). I deny, that is, that the following argument is valid: “Because you have agreed that punishment is in need of justification, you are foreclosed from arguing now that the reasons not to punish are cancelled.” Plainly, anyone who has acknowledged Jn(P) but who now accepts the arguments,
by cancellation, just sketched for J(Pc)(suffering) and for J(P)(infliction) may reply as follows:
In affirming Jn(P), all I really intended to communicate was my agreement with the proposition that there exist apparent reasons not to punish, and that it is appropriately the burden of one who defends criminal punishment to explain why those reasons are not effective. If you prefer, let us say that punishment stands in need of pseudo-justification, and denominate this proposition J0n(P). If it is the case that only wrongs are in need of justification and therefore that justification can be supplied only by overriding reasons, not by cancelling conditions, then I now explicitly deny Jn(Pc) and affirm in its stead J0n(Pc).
That this captures how retributivists often think about justification is suggested by the frequent criticism that retributivists argue as though punishment were not in need of justification at all.97 If only wrongs can be justified, then the critics may be right that retributivists do not think that punishment need be justified. But that does not mean, as the charge implies, that retributivists think nothing need by said in order to render punishment permissible. Surely they accept a burden of explaining the permissibility of punishment given the apparent reasons why it it is critical to recall that my claim is only that X is in need of justification if and only if there exists actual or apparent reason against it. Plainly, we need not use the term “prima facie wrong” to convey the point. Still, it is useful to have a term to denote the stage in the dialectic of practical reasoning at which we are confronted with as-yet undefeated argument purporting to establish the wrongfulness of an action, which argument is potentially defeasible either by cancellation or by override, or by a combination of moves.
E.g., Hart, Punishment and Responsibility, p. 9; S.I. Benn, “An Approach to the Problems of Punishment,” Philosophy 33 (1958): 325-341.
Draft (October 27, 2006) is wrong. But they think those apparent reasons are not valid reasons, therefore need not be overridden. Critics are entitled to believe that, strictly speaking, such a position denies the need to provide justification. But this criticism rests on a narrow and contestable conception of what it means to demand justification. In any event, the seeming implication that retributivists see no need to provide argument is false.
A sympathetic or charitable understanding of contemporary retributivism requires one to recognize that its proponents are rarely purporting to provide an all-things-considered justification of punishment. More often, they are offering a tailored justification against the fact that punishment inflicts suffering and both of its aspects – that it causes the putative bad of suffering and that, by inflicting that suffering, it putatively infringes rights.
I have aimed to show that this is a successful justification on two plausible assumptions:
first, that wrongdoers deserve to suffer on account of and in proportion to their blameworthy wrongdoing; and second, that any supposed general individual right against the infliction of suffering is better understood as only a usually sound implication – not a logical entailment – of some more abstract right such as the right to respect as a person. If so, then retributivism succeeds in justifying core cases of punishment (those in which the person punished is responsible for the charged offense and receives punishment proportionate to his blameworthiness) against the fact that it inflicts suffering. Consequentialist considerations might provide justification too, but the retributivist justification enjoys logical priority.
So far so good for retributivism. But retributivism lacks the resources to provide (in addition to an all-things-considered justification for the core cases) even a tailored justification for peripheral cases of punishment – those in which the imposition of punishment rests on a mistake regarding the defendant’s responsibility for the offense. So if peripheral cases are to be justified against the fact that punishment inflicts suffering, and if punishment simpliciter is to be justified all-things-considered (as, ultimately, we should want it to be), then consequentialist considerations must be relied upon. In this way, a fuller understanding of the logic of