Abstract
According to a rights forfeiture theory of punishment, liability to punishment hinges upon the notion that criminals forfeit their rights against hard treatment. In this paper, I assume the success of rights forfeiture theory in establishing the permissibility of punishment but aim to develop the view by considering how forfeited rights might be reclaimed. Built into the very notion of proportionate punishment is the idea that forfeited rights can be recovered. The interesting question is whether punishment is the sole means for reclaiming forfeited rights. I argue for a pluralistic theory of rights reclamation, according to which, there are multiple ways by which a wrongdoer can recapture her forfeited rights. In particular, I argue that offering remorseful compensation is a valid means by which a wrongdoer might partially, or fully, reclaim her right against punishment.
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Notes
While a number of philosophers have argued that apology and reparation can play an important role in achieving reconciliation between wrongdoers and victims, the focus here is upon how apology and repair might mitigate one’s liability to punishment.
This is not to say that all rights are pre-institutional, nor that some rights do not become more specified after the establishment of social and legal conventions.
For an interesting and provocative analysis of such matters, see Wellman’s (2017: 15–16) discussion of a real-life case of consensual homicide involving former computer repair technician Armin Meiwes, who acquired the consent of Bernd Brandes to kill and cannibalize the latter. I accept Wellman’s reasoning that if Brandes really did consent to being killed, then Meiwes acted permissibly, though we may still say his actions exhibited (the utmost of) deplorable values.
Because I believe that all rights can be waived, and that our duties correspond to correlative rights, it follows that there are no self-directed duties and thus can be no self-inflicted wrongs—at least if such wrongs are conceived of as being rights-violating. While an individual who engages in self-harm may fail to appropriately value her own life and/or well-being, such harms are precluded from the realm of the deontic. Given that an agent only forfeits rights against punishment when she culpably attempts to violate the rights of another, it follows that one cannot forfeit rights against punishment for any sort of self-directed behavior.
The eyes cross when they read that the Nozickean utopia might include slavery (1974: 331). Above, I asserted that any right can be waived, but on this point, I hesitate to maintain that stance. Given certain run of the mill problems regarding the persistence of an individual’s identity through time, I am reluctant to say that the 30-year-old version of myself may permissibly bind my future 60-year-old self to a contract of slavery.
It seems that in some cases, such as when we consider the Hitlers and Ted Bundys of the world, capital punishment might qualify as under-punishment—that such morally heinous figures are liable to something much worse and severe than death.
To be sure, there are versions of the doctrine of hell which avoid such worries; in particular, I have in mind those models which emphasize the damned individual’s decision to persistently reject God, even in the post-mortem state. For a recent excellent treatment of the many philosophical and theological problems associated with the doctrine of hell, see Manis (2019).
See the episode Black Mirror episode, “Black Museum”.
Can self-punishment also function as a way to capture forfeited rights? Suppose that Jean administers five lashes to himself after stealing a loaf of bread, as penance for the theft. Does this self-inflicted hard treatment accomplish rights reclamation in the same way that third-party punishment typically does? It is typically assumed that self-punishment does not count as genuine punishment, but I believe it can. However, more than mere deprivation must be applied. Consider Douglas Husak’s definition of punishment: “A response amounts to a punishment when it deliberately imposes a stigmatizing deprivation or hardship” (2016: 98). If this is right, then for self-inflicted punishment to count as genuine punishment the hardship must be stigmatizing—i.e., the self-imposed hard treatment must express a public and condemnatory attitude toward the wrongful action. However, this seems perfectly possible. It is not difficult to imagine a scenario in which a wrongdoer subjects herself to hardship and provides public condemnation of her wrongful conduct. For such an example, see Wellman (2017: 140).
Tadros (2011: 308–309).
On the notion of the suberogatory, see Driver (1992). In brief, just as there are morally praiseworthy acts which go above and beyond the call of duty (i.e., the supererogatory), so there are harms or moral ills in this world which fall short of the forbidden. For example, it might be suberogatory to be slothful, but slothful behavior does not (typically) violate the rights of others; being slothful, while a vice, is still morally permissible.
Though different authors understand the notion of resentment in different ways, many have defended an emotion account of forgiveness, according to which, to forgive is to in some way discharge feelings of resentment toward a wrongdoer. See, for example, Strawson (2003: 76), Murphy and Hampton (1988: 21); and Darwall (2009: 72).
Zaibert (2009: 368).
For a recent treatment of this issue, see Russell (2016).
Special thanks to the anonymous reviewer who drew my attention to this fact.
This view is not without precedent. Bennett (2018) has recently defended a conception of forgiveness similar to the view explored here in which forgiveness involves a form of commitment.
For a defense of this position, see Rothbard (1982).
On this point I follow Simmons, who argues that agents in the state of nature may “compete” against each other to see who exacts punishment first, preempting others of the right to punish (1991). Nozick also famously discusses what a system of open punishment would look like (1974: 137–142).
For an excellent and detailed analysis of how mercy can play a role in moderating the amount of punishment to which a criminal is vulnerable, see Tasioulas (2003). I am broadly sympathetic to Tasioulas’s “pluralistic” approach which recognizes the value of mercy as a distinct consideration that must be weighed against the positive reasons we might have to punish a criminal wrongdoer.
Similar treatment of this issue is given by Wellman (2017: 88–89) who also highlights the example of the South African Truth and Reconciliation Commission.
Nozick (1974: Chap. 4).
Of course, murder is typically the sort of rights-violation which compensation cannot address. But nothing argued here suggests that compensation is effective in recapturing any and all forfeited rights.
I take this question to be an analog of the “problem of relatedness” as it pertains to the permissibility of punishment (see Lippke, 2001). The relevant question as it pertains to punishment is: may a wrongdoer be subjected to hard treatment for any reason whatsoever, or must the visiting of hardship be properly related to the wrongdoing? Quinn (1985) was the first to highlight this worry by asking whether a young man guilty of car theft could be permissibly kidnapped and denied liberty for reasons having nothing whatsoever to do with his thievery. Consider the morality of self-defense: McMahan argues that lethal defensive force can be applied in war only if a combatant has forfeited their right against attack, but such forfeiture only applies “for certain reasons, by certain persons, in certain conditions” (2009: 10). Similarly, with regard to the punishment, one might argue that criminals only forfeit their rights against hard treatment for certain reasons. On this distinction between a “limited-reasons” versus an “unlimited-reasons” account of punishment and rights forfeiture, see Kershnar (2002).
Another intriguing question concerns whether a third party can act on behalf of a transgressor in providing compensation to a victim. In other words, can a criminal transfer the obligation to compensate to an innocent-but-willing third party? While I find the notion of vicarious punishment incoherent—since I take rights forfeiture to be a conceptual component of punishment—I hesitate to dismiss the possibility of vicarious compensation. John Gardner helpfully frames this question by asking whether duties of repair are “delegable” (2018: 111–116). Though I have not yet arrived at the central argument for how compensation can have rights-reclaiming significance, it is worth highlighting that a crucial aspect of my account is that a wrongdoer willingly compensates the wronged party. Forced compensation exhibits something less than a remorseful mind, and thus can play no role in reclaiming forfeited rights.
Another interesting case raised by John Gardner concerns “reparative uses of money” (2018: 102–107). Gardner highlights an amusing storyline from Larry David’s Curb Your Enthusiasm in which Larry becomes incensed at a man named Ben Heinemann. After smashing Ben’s taillight, Larry provides payment to Ben with the understanding that the latter would use such money to repair the damages to his car. However, Ben did not use the money to fix his smashed taillight, instead giving it to his daughter. Gardner is sympathetic to Larry’s frustrations as Ben’s actions seems to undermine Larry’s attempt to remedy the situation by helping to repair the car. However, on the account of compensation endorsed here, so long as Ben is indifferent between Larry smashing his taillight and Larry smashing his taillight plus being paid the relevant sum of money, then Ben is compensated. It does not matter what Ben subsequently does with the money.
This objection is raised by Pilon in response to Barnett’s proposal to abandon criminal law in favor of restitution. Pilon writes (1978: 351): “What, really, does the wealthy criminal care about having to compensate his victim…If a rich man rapes a rich woman, are we really to suppose that monetary damages will restore the status quo, will satisfy the claims of justice? A wealthy child molester will treat compensation simply as the price of pleasure.”
For a quick review of the main options: Some claim that the victim of a rights violation possesses the authority to determine what happens to a perpetrator, including an exclusive right to punish or forgive the victim. Others maintain that the right to compensation is exclusive, but that there is no right to punish. Third, there are those who hold that the right to punish is competitive, but the right to compensation is exclusive.
Barnett (1977). In general, I have avoided the terminology of “restitution” but preserve it here because it is the language Barnett uses. Typically, however, there is a distinction made between restitution and compensation. While compensation is usually understood as the raising of the victim’s well-being back to the status quo, restitution refers to remedies involving unjust enrichment.
Barnett writes, “The armed robber did not rob society; he robbed the victim. His debt, therefore, is not to society; it is to the victim.” (1977: 288).
On this point, see also Wellman (2017: Chap. 4).
To be sure, while Pilon seems to focus exclusively upon intentional harms in his discussion of criminal wrongdoing, it is worth highlighting that the Model Penal Code identifies four different culpable mental states associated with the mens rea element of criminal responsibility: purpose, knowledge, negligence, and recklessness.
The account defended here is highly revisionist, cutting against the relative independence of criminal punishment and tort compensation. That said, I do not believe the two completely collapse into each other. Importantly, I contend that compensation only has rights-reclaiming significance if it is carried out voluntarily. It is crucial that a wrongdoer’s act of compensation stems from a genuine desire to repair and undo the negative consequences that followed from their rights-violating conduct. Tort compensation can be forced. But according to the argument advanced above, compensation which is not accompanied by a remorseful mind fails to contribute to the recovery of forfeited rights.
In building an argument against the retributivist, Tadros questions whether the negative emotions inevitably suffered by the repentant wrongdoer have any intrinsic value. For Tadros, the answer is such emotions do not: what is important is the wrongdoer’s recognition that he or she has done wrong (2011: 44–51). Such negative feelings may be psychologically necessary if the repentant wrongdoer genuinely regrets her rights-violating actions. Still, the question of whether such suffering is intrinsically good is peripheral to my concerns here. It is enough to note that negative emotional reactions are likely psychologically inevitable if the wrongdoer’s remorse is sincere.
From a theoretical perspective, however, it is unclear to me whether a wrongdoer must necessarily offer a public apology in order to reclaim forfeited rights. To reiterate, the key claim advanced in this section is that for compensation to have rights-reclaiming significance, it must connect to both the objective and subjective elements associated with criminal wrongdoing. Revisiting the example of Thomas, the arsonist, the pertinent question concerns whether Thomas, after having been moved by feelings of remorse and rebuilding Anna’s house, is required to take further action, and publicly express his remorse. Or is the mere adoption of an apologetic attitude enough? I believe this is something about which reasonable people can disagree.
One might still worry that if our criminal justice system were to incorporate remorseful compensation as a legitimate means for addressing criminal behavior, then poorer criminals who lack the material resources to provide immediate compensation may remain liable to full punishment, while wealthier defendants (who are able to exhibit genuine remorse) would not. While it is certainly true that wealthier criminals may have an easier time compensating victims than poorer criminals, the latter do not lack this ability altogether. Rather, poorer criminals may have to compensate victims over an extended period of time by taking a portion of their monthly wages and making a series of payments. Barnett argues this point (1977: 289).
Another objection that might be raised to the above argument is that wealthier criminals may have better access to mental health services, enabling them to more easily cultivate a remorseful mindset compared to those who lack such resources. While this may be so, I do not believe such worries about inequality and fairness are specific to my account. For instance, notice that individuals who are economically privileged and so have better access to mental health resources may also tend to possess a stronger capacity to refrain from criminal behavior. Suppose this last point is true: it is not obvious what the implications are with regard to our sentencing practices and approaches to punishment.
Barnett emphasizes this point about “incommensurability” as well (1977: 292).
Another difficult set of cases that raise similar questions involves what John Gardner and Stephen Shute (2000) refer to as cases of “pure” wrongdoing. Gardner and Shute ask us to imagine a hypothetical scenario in which the victim of a rape is drugged to the point of complete unconsciousness, with no physical harm resulting from the incident. Moreover, the victim remains entirely oblivious to the episode, never discovering what transpired. I assume that cases of “pure” rape ought to be criminalized and constitute a serious wrongdoing. The pertinent question in the context of my argument concerns what sort of compensation should be provided given that the rape does not cause any experiential harms.
For a sophisticated defense of the view that results are irrelevant in determining what counts as proportionate punishment, and that only culpability matters, see Alexander et al. (2009: Chap. 5).
Moreover, if one adopts a desire-satisfaction account of well-being, it can be argued that even if Olivia remains completely unaware of Brad’s attempt to shoot her, one of her fundamental desires goes unsatisfied, and so her interests are in fact set back as a result of Brad’s actions.
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Acknowledgements
I am fortunate to have so many individuals to thank for providing helpful feedback on earlier drafts of this paper, including Kit Wellman, Lori Watson, Anne Margaret Baxley, Niklas Andersson, Graham Renz, Bas van der Vossen, Elizabeth Levinson, Timothy Bloser, and Gina Cordovi. Previous versions of this paper were presented at the University of Missouri-St. Louis and Indiana University, where I received insightful questions and comments from audience members. Finally, I extend a special note of appreciation to the editors of this journal and the two anonymous reviewers whose constructive criticism resulted in a much-improved essay.
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Bell, W.L. Rights reclamation. Philos Stud 181, 835–858 (2024). https://doi.org/10.1007/s11098-024-02132-8
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DOI: https://doi.org/10.1007/s11098-024-02132-8