Are Deserts Earned or Revealed?

Are Deserts Earned or Revealed?
When meting out justice, should we proportion our punishment to criminals’ intentions or the consequences of their actions? In his essay, Criminal Attempts (2003, 77-102), Feinberg proposes that the consequences of a criminal’s actions should be an irrelevant factor when determining their punishment. Whether someone succeeds at realizing their intentions is a matter of chance. Unless we can provide a reason that success is somehow relevant to blameworthiness, Feinberg argues, we are being arbitrary and therefore unjust when we give different sentences to criminals based on chance. I am sympathetic to Feinberg’s goal of reducing arbitrariness, but I am unconvinced that his reformist proposal persuasively succeeds in making justice non-arbitrary. In at least some scenarios the fact that a particular individual attempts a crime seems to be a matter of chance in the same way that succeeding in our intentions is a matter of chance. To the extent that possessing a particular intention is a matter of chance, to escape arbitrariness I propose that Feinberg must rely on the counter-intuitive idea that deserts are character based instead of action based.
Section 1: Feinberg’s argument
Feinberg’s central argument is that a justice system should proportion its punishments to an individual’s intention instead of the consequences of those intentions because the consequence of actions is not relevant to an individual’s blameworthiness. Fienberg takes as given that ‘blameworthiness is normally compounded out of such factors as beliefs, emotions, motives, objectives, and intentions’ (79). It then follows that what a person deserves depends upon these mental features, and we should proportion our punishment to an individual’s intention. Since succeeding in a crime is irrelevant to an individual’s blameworthiness, it is arbitrary to base our punishments on success or failure.
Section 2: Blameworthiness and Character
Before getting to my main argument, I need to explicate further the concept of blameworthiness. I believe that Feinberg speaks somewhat loosely when he states that blameworthiness is compounded out of mental features. Blameworthiness and action are inexorably linked – I think most would agree that the mere contemplation of a crime is not a sufficient condition for blameworthiness. Someone is not guilty of murder the moment they begin plotting a murder. I do not mean this as merely an epistemic point, though it is true that intentions are epistemically unavailable until they are put into action. What I propose is that if we want to attribute responsibility for an action then we need to assume that humans have some kind of enduring element for responsibility to attach to. This feature could be dispositions, or it could be some kind of enduring character. Describing the exact nature of this enduring element is not crucial for the purposes of this essay. For simplicity’s sake I will refer to it as character. Since intentions and thoughts are not obviously selfsame with the actions someone undertakes, it is at least theoretically possible that a person could be unaware of their own hidden character until they are in the midst of an action. This account suggests that when we punish crime that we are really punishing this character that an action reveals, an idea that I will explore further in the next section.
Section 3: Luck of Temptation
It follows from the preceding paragraph that there may be crimes that people with particular characters commit when exposed to temptation: for these kinds of crimes it is a matter of chance that an individual commits them. It seems intuitive to me that these types of crimes exist – it seems to be the definition of a crime of passion. The perpetrator of the crime can even haveconceivably been unaware of their own temptable nature. Imagine two different men come home and discover their spouse with a lover. One man (angry1) becomes enraged and murders both of them, while the other man (calm1) politely asks the lover to leave and proceeds to have a rational conversation with his spouse. It seems quite conceivable to me that both could have been the same epistemic circumstance of not knowing their own character in relation to such circumstance. We can also imagine another man (angry2) who would act as angry1 did if exposed to the same circumstance, but who has had the good fortune of marrying a loyal partner. It then seems to be a matter of chance that angry1’s negative character was revealed, while angry2’s negative character remains hidden.
That certain crimes are committed as a matter of chance reveals an ambiguity in the concept of just deserts: are people blameworthy because of the actions they commit, or are we punishing them for the objectionable character that their act revealed? I will not endeavour to do full justice to this question here, but I do propose that Feinberg’s concern about arbitrariness in justice should drive him towards the latter option. If we fail to acknowledge that some crimes are an interaction between character and circumstance, then we seem to do a conceptual disservice to those we are punishing. The Milgram experiments1come to mind as good evidence that the fact that one individual commits an act rather then another can be a matter of chance. If someone actually committed a murder in a Milgram style scenario, it seems we would be derelict if we did not acknowledge that over half of the population would have done the same
The purpose of this section is to pose the following challenge to Feinberg: for crimes of passion or of extreme circumstance, is it unjust that we only punish those who have the misfortune of being exposed to the temptation to behave badly? It seems that fairness would dictate we should also punish those who are lucky, since they are of equivalent moral character.
A response to my challenge seems readily at hand: though it is unfair and unjust for individuals of the same quality of character to receive disparate deserts, this disparity is not one of our making. One of the ends of our justice system is to make sure that people (specifically criminals) receive their just deserts, but the justice system can not be faulted for not possessing infinite resources. Our epistemic circumstances are such that we can not give people deserts based on their hidden character; we must instead rely on the actual manifestation of character we can observe in their actions. We have not erred if we fail to do that which we are incapable.
Section 4: A Life’s Deserts
Though my previous challenge was resolved without much difficulty, the answer has led to a more significant problem. The issue is this: are deserts deserved at a particular moment in time, or are deserts accrued over the course of a lifetime? In asking this question I am assuming that our character or dispositions change over time. This is an assumption that would bear further investigation if I were trying to propose a theory of character, but it seems to be both intuitive and probable by my anecdotal experience.
First I will illustrate the problem. Let us imagine that we have two people who, in their youth, were of such a character that in the right circumstances they would shoplift. One of these persons (Unlucky Lily) was exposed to temptation and subsequently punished, while the other (Fortunate Fabian) was not exposed to temptation. Both of these people then grew out of such character. Let us imagine, however, that we somehow became aware that Fortunate Fabian had previously been temptable to shoplifting. Does justice dictate that since both were of equivalent character we should therefore punish Fabian? It seems strongly counter-intuitive to say that we should punish Fabian for a disposition that he no longer possesses, but if we do not punish him then we seem to declare that punishments are only deserved for character traits that are actually realized. In other words, if we do not punish Fabian for his previously negative character we endorse luck as a factor in the dispensation of punishment because we are making punishmentcontingent on being exposed to temptation at the right cross-section of life. I will call this the cross-sectional problem of justice.
One may criticize the problem I just illustrated by saying that the reason it seems counter-intuitive is because it requires that we imagine ourselves in an impossible epistemic circumstance. The only evidence that we can have of an individual’s character is their actions – it is nonsensical to talk of punishing someone for a particular non-realized character in the past, because we will never be in such a dilemma. The closest analogy would probably be punishing people based on the statistical probability that they have or had a particular moral character, and this kind of action is clearly egregious. The cross-sectional problem of justice may not seem like much of a bullet to bite because we will never need to actually pass judgement in the counter-intuitive way that it describes. However, I have a proposal of an interesting consequence that follows from endorsing non-arbitrariness in the cross-sectional problem.
If we endorse the idea that temporary character traits or dispositions leave enduring stains of blameworthiness on an individual, then it seems to follows that the duration or persistence of temptation-realized character traits is a relevant factor in the meting out of punishment. The primary point that the cross-sectional problem identifies is the question of whether we care about whether an individual’s blameworthiness is based on them possessing a trait now, or that they have ever had the trait. A desire for consistency drives us towards the second because it can be chance that causes one individual to reveal themselves as possessing a particular temptable character. From this it seems to follow that the persistence or duration of such a trait is a relevant factor in its punishment: a person who possesses a particular negative character trait for years seems to be of more blamable character then someone who has the same trait for only a month. Again, this observation is difficult to use in practice, unless we are comparing between crimes. Though it would be near impossible to determine the persistence of a trait withinan individual’s character, it seems much more feasible to me to say that generally or on average traits have different degrees of persistence. A perchance for vandalism could be a generally short-lived trait, while petty theft might be an enduring one. If this were the case, then vandalism would generally express a shorter duration blemish on character than petty theft, which seems to be a relevant consideration for just deserts.
What I’ve aimed to demonstrate with the preceding arguments is that arbitrariness is not avoided by simply punishing people based on their intentions rather than their actions. For the concept of blameworthiness to avoid the accusation of arbitrariness due to circumstantial luck, some conception of deserts being character dependent seems to be required. Once we divorce deserts from actual behaviour, however, we encounter some odd consequences. The first odd consequence is that character based deserts seem to demand that if we learn someone previously had a negative character trait then they justly deserve punishment. The second odd consequence is that the persistence or duration of a trait becomes a relevant factor when determining an individual’s just deserts.
Though I am sympathetic to Feinberg’s goal of reducing arbitrariness in the justice system, I am not convinced that we succeed in doing so by attributing substantive responsibility based on intentions. In this essay I have provided an account of some unusual and counter-intuitive results that seem to follow from adopting Feinberg’s position. My aim has been to demonstrate that his reformist position has significant conceptual obstacles to overcome before I would accept that he has successfully reduced arbitrariness.
Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford Scholarship Online, 2003.
1The Milgram Experiments were a series of famous experiments on obedience. Milgram found that under relatively gentle pressure over 60% of subjects would obey instructions to the point of committing murder.

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Laudable revisited

In one of my recent posts I wrote about laudability (see that post here).  I’ve been rethinking my argument on the matter.  Originally I said that the only laudable actions are those generated by agency.  However, I think there is a problem with this analysis, namely it seems to me that the concept of laudable only makes sense with an opposite.  That is to say, I’m not sure that acting in fashion x can be laudable without not acting in fashion x is somehow negative.  Since my account of laudable is ‘acts autonomously’ it seems to follow naturally that it is somehow blameworthy to fail to be autonomous.  However, by my argument, one’s autonomous state is not something done.  This ties back to my post on epistemic injustice, in that I think it is much easier for those who are privileged to be autonomous.  Therefore I do not feel that I can justify finding people laudable for their autonomous actions.

I’m quite hesitant in this judgement.  It is very counter-intuitive to me to say that there are no laudable actions.  However, at the moment, I haven’t thought of a way for one agent to be more laudable then the next.  All actions, good or ill, are products of circumstance and innate unearned properties of an agent.  This doesn’t mean that we cannot praise those actions we consider good, but this praise seems inevitably to be pragmatic affirmation, as opposed to recognizing some action of the agent.  Praise is essentially the statement ‘I like the being you are’.

Let me know what you think,

Creative Philo

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You are what you do

One philosopher who I’ve never really understood is Judith Butler.  I’ve only read two or three of her articles, and I got literally nothing from them.  I’d pretty much dismissed her work as at least unintelligible, if not nonsense.  I’m not the only one who has had this kind of experience of Butler: she was awarded 1st place in  Philosophy and Literature magazine’s somewhat mean spirited but funny ‘bad writing contest’ in 1998.  Recently I came across an article that purported to explain Judith Butler in more understandable language (read here).  I have no idea whether this is an accurate representation of Butler or not, but I found that which the writer interpreted as Butler’s central claim quite interesting.  She said (that Butler said) that A) sex does not exist outside of gender, and B) that gender is something done.  This is a notion that I am quite sympathetic to – it actually seems like it would be rather difficult for me to reject given what I have previously said about epistemology.  Our identity is as much something we constitute within experience as anything else.  I do have the minor caveat that I probably attribute less of how we constitute reality to society then Butler does, but overall I think we stand on similar epistemic grounds on the matter.  The dichotomy of male/female is something to which we subscribe (by some combination of genetic inclination and social teaching), and, at least when it comes to our own identity, it seems like it can have little reality beyond the way in which it effects our actions.

This got me thinking about identity in general.  I would say (in a very Aristotelian fashion) that you are what you do.  If I say that someone is a doctor, I mean that she doctor’s people – if I say that someone is a good person, I am referring to a general trend in their behaviors.  The reality of these labels are not as simple as we sometimes treat them though.  One interesting aspect I think is how it seems to quite naturally follow from this that we are different people in different environments.  I act (and feel) substantially different when I’m working at my retail job and when I’m writing my blog posts, for example.

One of my friend’s once made an interesting observation: it is important to have an identity within a friend group.  A mutual friend of ours had recently been extremely depressed because she felt that she didn’t have any kind of identity within the group – that she had no skill or expertise that she could claim as her own.  We are, I think, quite driven to find uniqueness in ourselves – we seek identity markers to set ourselves apart (though we also seek other markers to bond over as groups).

So, just some thoughts on identity.  Let me know what you think,


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The Bonds of Fairness

We all have wished that the world was fair at some point or other.  We’ve wished that people would get what they deserve, or that there wasn’t such inequality, or any manner of such thoughts.  Not only do we wish for fairness though, we also tend to see it in the world.  We have karmactically inclined minds – we tend to think that others get what they deserve, that being a good person should be pragmatically rewarding (heaven), and so on.  Unfortunately, our desire for fairness can be a dead weight upon our lives.

When faced with adversity, when faced with struggle, my experience of myself is that I must struggle against my desire for fairness.  That is, I must hold it off so that it does not cripple me.  If I focus on the unfairness of a situation, if I allow myself to dwell on how I feel that my circumstance is unjust and ill-formed, I cut myself off from action.  To dwell on fairness is to demand of the world that it give itself to me, that it yield the fruit I perceive given to others to me as well.  To dwell on fairness so is paralyzing, because it is against action: to act is struggle towards that which should simply be given.  That this is so is not fair (though I am hardly hard-done by when it comes to the gifts given me by the world), but it is a brute reality.

I think it is much better to dwell on my own responsibility then on fairness.  If I take myself to be responsible for my circumstance, then I am moved to action.  No longer can I bitterly complain about my perceived ailments, because I take them to be my own doing.  The only recourse that is left to me is to act, to seize my circumstance and make it otherwise.

I do not mean to say that fairness is bad.  I think it is a good thing to encourage fairness in the world.  It is just that no good can come from dwelling on unfairness.  It is perhaps a piece of sophistry to say that my circumstance is entirely my own doing, but I think most of us are probably already sophists when it comes to fairness.  We take our privilege as given, while swooning over our woes.

Let me know what you think,

Ryan Workman

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Struggling with Absurdity

Despite my examination of many existentialist thinkers, there is one existentialist concept that I have not really touched upon – the concept of absurdity.  Before I started writing this, I realized I only had a faint notion of what the concept of absurdity actually was.  After some research though, I would say that the concept of absurdity is essentially this: meaning may or may not exist, but it is not within our capabilities to know it.  This situation is called absurd because we are meaning-seeking beings, inclined to find meaning in our world, but actually determining real meaning is beyond our ken.  This concept can be taken many different ways, but a common path is to follow absurdity with the proposition that the essence of human existence is to create our own meaning in the face of absurdity.

With a bit of rewording, much of the thoughts I’ve previously proposed could be argued to be in line with absurdity.  I think that knowledge is an infinite activity, and that no one can know truth.  I take the essence of human existence to be continual confrontation with the question ‘what should I do’, while I think that the answer is unattainable.  It is only a short skip and a jump from that to saying that the existence of meaning is fundamentally unknowable and that the essence of human existence is to make – aka, absurdity.

If I was willing to stop there, I’d be on fairly firm philosophical grounds.  However, I’m not quite comfortable with what I’ve said – I want to insist somehow that people can be wrong, that there is some sort of tangible difference between the reflective and unreflected stance.  I do have some ideas for how to tackle this, but they are currently in the works.

Thank you for reading; let me know what you think.


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