Character, Liberty and Law: Kantian Essays in Theory and Practice (Library of Ethics and Applied Philosophy)

Library of Ethics and Applied Philosophy

Jeffrie G. Murphy

Character, Liberty, and Law Kantian Essays in Theory and Practice

K l u w e r A c a d e m i c Publishers

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LIBRARY OF ETHICS AND APPLIED PHILOSOPHY

CHARACTER, LIBERTY, AND LAW Kantian Essays in Theory and Practice by JEFFRIE G. M U R P H Y Regents' Professor of Law and Philosophy, Arizona State University. Tempe,AZ,U.S.A.

K L U W E R A C A D E M I C PUBLISHERS DORDRECHT / BOSTON / LONDON

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To Thomas E. Hill, Jr. and Michael J. White, with esteem and affection.

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TABLE OF CONTENTS PREFACE

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ACKNOWLEDGMENTS

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L E W I S WHITE B E C K : A B R I E F F A R E W E L L

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KANT ON THEORY AND

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PRACTICE

HUMAN DECENCY AND THE LIMITATIONS OF KANTIANISM

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COGNITIVE AND MORAL OBSTACLES T O IMPUTATION

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REPENTANCE. PUNISHMENT, AND MERCY

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L E G A L M O R A L I S M A N D LIBERALISM

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F R E E D O M O F E X P R E S S I O N A N D THE A R T S

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SOME RUMINATIONS ON WOMEN. VIOLENCE. A N D THE C R I M I N A L L A W

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INDIAN CASINOS A N D THE MORALITY OF G A M B L I N G

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SHOULD

TENURE

SURVIVE?

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JEAN HAMPTON ON IMMORALITY, SELF-HATRED. AND SELF-FORGIVENESS

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FORGIVENESS IN COUNSELING: A PHILOSOPHICAL PERSPECTIVE INDEX

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OF NAMES

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PREFACE

This is my third collection o f essays. Retribution, Justice and Therapy, published in 1979, exhibited an enthusiastic and unambiguous commitment to Kantianism in moral theory and to retributivism as a theory o f punishment. Retribution Reconsidered, published in 1992, had a more Humean tone—a tone o f skepticism about a variety o f views, including Kantian retributivism. The present collection, although still expressing skepticism about certain aspects o f Kantianism, remains essentially Kantian in inspiration and framework. It also reveals, I think, my increasing interest in issues and values that are often regarded as religious in nature--an interest that began in the book Forgiveness and Mercy that I co-authored in 1988 with the now deceased Jean Hampton. This collection begins with a tribute to my teacher and mentor—the late Lewis White Beck This tribute is followed by the only piece o f serious Kant scholarship I have attempted in years: "Kant on Theory and Practice," a commentary on Kant's essay "Concerning the Common Saying: That May be True in Theory But Does Not Apply in Practice." The Kantian framework of the next two essays—"Human Decency and the Limitations o f Kantianism" and "Cognitive and Moral Obstacles to Imputation"—should be obvious. The former, growing out o f a concern over how Kantians should think about humanitarian intervention, argues for the central importance o f the second formulation o f the categorical imperative; the latter explores several Kantian arguments against strong forms o f retributivism. "Repentance. Punishment and M e r c y " and "Legal Moralism and Liberalism" (written to honor Joel Feinberg on the occasion o f his retirement) are further explorations in the theory o f punishment. The first essay seeks to defend a contemporary place for the idea, common in older religious traditions, that one legitimate purpose o f punishment is to generate repentance on the part o f wrongdoers. The second essay, by revisiting the HartDevlin debate and expressing some new found sympathy for Lord Devlin, raises doubts that robust forms o f the retributive theory o f punishment are consistent with a liberal theory o f the state. I argue that these robust forms o f retributivism. along with constitutional rights recognized as fundamental, require that the state take a non-neutral stand on issues o f the good life. O f

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course, some liberal theorists—e.g., Ronald Dworkin—have argued that neutrality on such issues is an essential part o f liberalism. The next group o f essays are four contributions to that unhappily named area o f philosophy called "applied ethics." (I would prefer some other title—e.g., "practical ethics.") Here I explore issues o f current importance as matters o f social and legal policy: public funding for the arts ("Freedom o f Expression and the Arts"), crimes o f violence involving women either as perpetrators or victims ("Some Ruminations on Women, Violence and the Criminal L a w " ) , casino gambling ("Indian Casinos and the Morality o f Gambling"), and academic tenure (the previously unpublished "Should Tenure Survive?"). The collection closes with two essays that pursue issues that I first began exploring in the book Forgiveness and Mercy, In "Jean Hampton on Immorality, Self-Hatred, and Self-Forgiveness" (written for a memorial session to honor her memory), I expand on the disagreements she and I had over the idea o f self-forgiveness. In "Forgiveness in Counseling: A Philosophical Perspective" (which appears here for the first time), I express some skepticism about what I regard as the overly enthusiastic and uncritical endorsement o f forgiveness on the part o f some psychological counselors. M y latest thoughts on punishment (expanding on some o f the ideas in "Cognitive and Moral Obstacles to Imputation") may be found in the essay "Moral Epistemology, The Retributive Emotions, and the 'Clumsy Moral Philosophy' o f Jesus Christ." This essay will appear in a volume on law and the emotions to be edited by Susan Bandes and published by N e w York University Press, but it will not appear in time for inclusion in the present collection. The present collection is dedicated to Thomas E. Hill, Jr. and Michael J. White. T o m and I have always been separated by great distances—Tom in Los Angeles when I was in Minneapolis, T o m in North Carolina after I moved to Arizona—-but our meetings, when w e can arrange them, are always a source o f great pleasure to me. I have learned a great deal from his work and have been greatly stimulated by it; his "Servility and Self-Respect," for example, stimulated and structured much o f the thinking on forgiveness present in my chapters in Forgiveness and Mercy. H e also has some truly fine human qualities for which I admire him greatly. The world o f philosophy is richer because o f his presence in it.

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Since Michael White is often made uncomfortable by open displays o f sentiment. I will make my remarks about him brief and will attempt to maintain a tone o f emotional moderation. I have known Michael for over eighteen years, and I regard him as the best colleague that I have ever had. He has a powerful philosophical mind, a breadth and depth of erudition that is truly inspiring, and unfailing generosity in his willingness to bring his mind and learning to bear in helping others to improve their work. H e is also a man of great wit. practical wisdom, and (within, o f course, the limits set by general human depravity) moral goodness. He is, in my view, a model of what a university professor should be, and I feel fortunate indeed to count him among my friends. One final note of thanks: I have received extremely valuable assistance from Donna Taylor in the preparation o f this manuscript. Her intelligence, creativity, and cheerfulness have made this latest exercise in self-indulgence (does the world really need another collection of my essays?) move forward with an ease that I have never before encountered. I thank her and wish her well in her future course of studies and career. M y wife, Ellen Canacakos, has as usual had both a direct and indirect effect on my work—bringing her intelligence to bear in helping me to improve some o f the essays and reminding me. in so many ways, that her supportive presence is one o f the few unambiguously good things that has ever happened in my life. Without her, I probably could not be bothered -- with this or with anything else.

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ACKNOWLEDGMENTS

" L e w i s While Beck: A Brief Farewell," "Forgiveness in Counseling: A Philosophical Perspective" and "Should Tenure Survive?" appear here for the first time. The other essays are here republished (with some slight modifications) and their original publication history is as follows: "Kant on Theory and Practice" originally appeared in Nomos XXXVII: Theory and Practice, edited by Ian Shapiro and Judith Wagner DeCew, N e w York University Press, 1995. "Human Decency and the Limitations o f Kantianism" originally appeared in Rechtstheorie 15, Duncker and Humblot, 1994: Proceedings o f the 16th World Congress o f the International Association for Philosophy o f Law and Social Philosophy. "Cognitive and Moral Obstacles to Imputation" originally appeared in Jahrbuch Jiir Recht und Ethik, Band 2, Duncker and Humblot, 1994. "Repentance, Punishment and Mercy" originally appeared in The Quality of Mercy, edited by Andrew Brien, Rodopi Press, 1997, and in Repentance, edited by Amitai Etzioni, Rowman and Littlcficld, 1997. "Legal Moralism and Liberalism" originally appeared in Arizona Law Review, University o f Arizona College o f Law, Spring, 1995. "Freedom o f Expression and the Arts" originally appeared in Arizona State Law Journal, Arizona State University College o f Law, Summer, 1997. "Some Ruminations on Women, Violence and the Criminal L a w " originally appeared in In Harm's Way: Essays in Honor of Joel Feinberg, edited by Jules Coleman and Allen Buchanan, Cambridge University Press, 1994. "Indian Casinos and the Morality o f Gambling" originally appeared in Public Affairs Quarterly, North American Philosophical Publications Incorporated, January, 1998. "Jean Hampton on Immorality, Self-Hatred, and Self-Forgiveness" originally appeared in Philosophical Studies, Kluwer Academic Publishers, Volume 89, 1998.

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LEWIS WHITE BECK: A BRIEF FAREWELL I regret that I was not able to be present at the meeting of the North American Kant Society honoring the memory of Lewis White Beck. As I suspect is the case for many o f Lewis's former students, I recall him with complex emotions. Respect—for his great learning and philosophical ability—is a given. The remaining emotions, at least in my case, can perhaps best be described as "anxious affection"—"affection" because of the generous support that Lewis gave to me at every stage of my career—opening doors for me that others might have left closed; "anxious" because of my feeling that I was always being judged by him and might not be living up to the standards he had set for me. In the first meeting of Lewis's Kant seminar (on my first day as a graduate student at Rochester) he lowered his glasses and looked at me disapprovingly when I failed to answer correctly what he clearly took to be an easy question on the relationship between Kant and Newton. " I had thought," he said, "that Johns Hopkins did a better j o b o f teaching the history o f philosophy and science." He then moved on to his next victim while I wondered silently what I was now going to do with my life since a career in philosophy was clearly not in my future. Things got better, of course, and I did have my career in philosophy after all—greatly aided, particularly in its early stages, by Lewis's help. But for the next thirty years or so, on most occasions when I met with Lewis, I was never fully comfortable. I always had some fear o f experiencing that look again and tended to suspect that I was, at least to some small degree, disappointing him. I always assumed that he was disappointed when I decided to abandon Kant studies and do work on contemporary problems in legal philosophy instead. On the other hand, he may have viewed my departure from his world of scholarship as all for the best. Always a master of praising with faint damns, he once told me—after reading one o f my Rawlsian inspired essays on Kant—that he believed that I was "destined to become America's leading authority on what Kant should have said." I did not take this remark to be a compliment.

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Whatever private reservations he may have had about the direction my work was taking, however, his public evaluations remained unambiguously supportive. In my first year out o f graduate school, he suggested to Tony Woozley — editor o f the book series "Philosophers in Perspective"—that my doctoral dissertation might make a nice addition to the series. This led to the publication o f my first book, Kant: The Philosophy of Right—a book that I dedicated to Lewis. When this book was reprinted a few years ago, he provided some generous words o f praise to be used on the book jacket—praise far in excess o f what the book actually deserved. He provided detailed and insightful comments on an early draft o f my book Forgiveness and Mercy (co-authored with Jean Hampton)—a book only tangentially related to Kant's thought. This book represented a new direction in my work, and I took great comfort in Lewis's support o f the endeavor—so great, indeed, that I also dedicated my portion o f this book to him. Because o f the great influence that Lewis played as my philosophical mentor and role-model, it was an event o f great personal and professional significance in my life when in 1969 I published my first essay critical o f some o f Lewis's work on Kant.' This essay was, in Freudian terms, the killing o f the father—or, if one prefers feminist metaphors, a cutting o f the umbilical cord. Lewis's response to this essay was classic. His response was, on the surface, a model o f civility and respectful disagreement. He also, however, conveyed very explicitly that I had been his student and also misspelled my name—thus putting me squarely in my place. ( I recalled all o f this, by the way, when I noticed that both my first and last names were misspelled on the program for this meeting. In this case, however, I assume that simple negligence was at work and am not inclined to any Freudian speculations on the matter.) Was Lewis's great influence beneficial or harmful? I would think a bit o f both. In spite o f my early stumbles, I ultimately thrived under his demanding and even harshly unforgiving philosophical criticism. I suspect, however, that other students—no less talented than I—perhaps withered under his instructional methods and never came to realize their full potentials. Until I

'Jeffrie G. Murphy. "Kant's Second Analogy as an Answer to Hume." Ratio, XI, 1, June, 1969, pp.75-78. Lewis replied to this essay; and, if I recall correctly, his reply was in the same issue.

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Lewis White Beck

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stopped slavishly copying these methods in my own graduate teaching,I Lewis was a consummate professional, and he taught me how to be a professional taught me that being a professional means caring about more than self-promotion. I learned from him to take seriously an obligation to help further the intellectual growth and career development o f my talented students and junior colleagues. I also learned from him to take seriously an obligation to provide service to our discipline by taking on various professional responsibilities. Finally, a word about Lewis's moral influence. Except for a few blind spots e g . , women in the academy—Lewis generally seemed to me a paragon o f the Kantian virtues: fairness, justice, and rationality. What was perhaps missing in his dealings with his students was kindness. (He once told one of my fellow students who was struggling in the program that his departure from the program would be " n o loss to philosophy.") It took me years to learn the importance o f kindness in the academic world, but that was a value I had to learn from others. Lewis was, I think, one o f the last o f a noble breed: a southern, academic gentleman. He seemed to have all the strengths and weaknesses o f this breed, but—in my view—the strengths ultimately outweighed the weaknesses. With his formal manners, bow tic, three-piece suit, boutonniere and cane, he was a presence—an anachronistic presence, to be sure, but a genuine presence He stood apart and he stood for something; and I think that the academic world is less because—in our post-sixties rush toward bland, informal, egalitarian chumminess— w e no longer breed and value this kind o f gentleman. O f course, not every university professor should be a Lewis White Beck, but an academic world with no Lewis White Becks is a poor world indeed. The closest I ever came to a truly intimate conversation with Lewis was when, in the mid seventies, I invited him to the University o f Arizona (where I was then Department Head) for a series o f lectures. Following his final lecture. I dropped him o f f at Tucson's Pioneer Hotel. Shortly after he had fallen asleep, the hotel—torched by an arsonist—burned down. Lewis was roused from his sleep by all the commotion, saw smoke coming in under his door, and realized from touching the hot door that any attempt to exit through the hall would likely end in his death. Thus he proceeded to save himself (this man who took pride in never exercising) by climbing down six stories

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on a drain pipe. H e stayed in my home the following night, and his experience plus several glasses of whiskey—caused him to loosen up a bit. H e said that his experience had forced him to confront his own mortality, and he spoke o f death and the meaning o f life. Our talk turned to the possibility of immortality (which he discounted), but he did share with me his own very southern and very gentlemanly fantasy of Heaven: a place where he could sit on a porch sipping whiskey and be surrounded by all of the dogs that he had ever owned and loved. As a person whose love of dogs is nearly boundless, I can share in such a fantasy. I can also (with a sentimentality that Lewis would have deplored) fantasize that there is such a Heaven and that Lewis, with his dogs, has found his place in it. 2

"These remarks were prepared for a special meeting of the North American Kant Society to honor the memory of Lewis White Beck. The session was held in conjunction with the meetings of the American Philosophical Association. Central Division, on May 7. 199S. I was not able to be present at this session, and my remarks were read in my absence.

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KANT ON THEORY AND PRACTICE Immanuel Kant's 1793 essay 'Theory and Practice" is his attempt to defend his own moral and political theory against the charge that it is simply an idle academic exercise that cannot be brought to bear upon the real world in any useful way. He is concerned, in particular, to answer two charges—the charges that his theory is (1) motivationally unrealistic, involving an account o f moral motivation that is at odds both with scientific psychology and with all plausible philosophical accounts of rational deliberation and (2) not usable in either the design or critique o f actual social institutions. Following a general discussion o f what may be meant by the topic "theory and practice," Kant structures his essay as a response to the challenges to his own theories that are to be found in the writings o f three other thinkers; Christian Garve, Thomas Hobbes, and Moses Mendelssohn. Why is it worth caring about this essay? There arc, I think, two reasons. First, it might be instructive to find out what the greatest philosophical mind o f the eighteenth century had to say about the topic of the present volumeSecond, a return to Kant is timely. There arc few things more trendy these days than Kant-bashing, for he is often regarded as the patron saint of individualistic liberalism. Enlightenment rationalism, the idea o f the "unsituated self" and a variety o f other heresies that communitarians, virtue theorists, and feminists among others enjoy condemning. It might be instructive to see how Kant himself responded to the kind of Kant-bashing that was current in his own day—some o f it not all that different from our contemporary forms. 1

'The full title of Kant's essay is "Uber den Gemeinspruch; Das mag in der Theorie richtig sein, taugt abcr nicht fiir die Praxis" ("On the Proverb: That May Be True in Theory but Is of No Practical Use"). The standard citation source for this essay is Band VIII (volume 8) of Kant's gesammelte Schriften, hrsg. Konigliche Preussische Akademie der Wissenschaften (Berlin and Leipzig: Walter de Gruyier. 1904-}. In the present essay I am mainly relying on the translation by my colleague Ted Humphrey in his Perpetual Peace and Other Essays (Indianapolis: Hackett, 1983). 61-92. All page references to Kant's essay will be given in the following form in the body of the text: the page number from the Academy edition will be given first, followed by the page number from the Humphrey translation—e.g., (275. 61).

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Character, Liberty, and Law 1. I N T R O D U C T I O N : W H A T I S T H E P R O B L E M OF T H E O R Y A N D PRACTICE?

Introductions are not generally Kant's strong point. Though nominally put forth to lay out clearly the topic for discussion and to set the reader up for what is to follow, they are often overly compressed and obscure. The introduction to "Theory and Practice" is, alas, somewhat in this mold. Although it makes (in a reasonably clear w a y ) some important distinctions, it also contains much that is obscure and, as an introduction to what is actually to follow, somewhat misleading. One thing is reasonably clear: Kant is at some level worried about the moral philistine—the businessman, the politician, the military officer w h o prides himself on his role as a hard-headed, no-nonsense, realistic man of affairs (Geschaftsmann) and who, in pursuing his objective o f greed or power or victory, either ridicules morality and moral theory as irrelevant to his practice or who conveniently adopts an account o f morality exactly tailored to allow him to do whatever he pleases. (Such notions as "it's just business" or "it's just politics" or "military necessity" might function in this way.) This is the person who, when met with a challenge from the realm o f moral principle, tends to respond dismissively with the smug cliche "yes, what you say may be true enough in theory, but it doesn't apply in practice." What worries Kant the philosopher even more than these moral philistines, however, is the existence o f philosophical doctrines that can be used to give a cover o f intellectual respectability to the iniquities and deceptions practiced by such persons. There is very little that a philosopher can do directly to combat ordinary human venality and self-deception, but the philosopher can properly assume the task o f unmasking the intellectual pretensions o f those who would use or misuse philosophical doctrines in support o f venality and self-deception. Such is Kant's objective in " T h e o r y and Practice"—an objective he pursues by attempting to demonstrate how bad theories (or misuses o f good theories such as his own) can aid in the corruption o f human life and human society. But what is a "theory" and what is the "practice" to which it is related? Kant writes, An aggregation of rules, even of practical rules, is called a theory, as long as these rules are thought of as principles possessing a certain generality and, consequently, as being

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Kant on Theory and Practice

abstracted from a multitude of conditions that nonetheless necessarily influence their application. Conversely, not every undertaking [Hantierung] is a practice [Praxis]; rather, only such ends as are thought of as being brought about in consequence o f certain generally conceived [vorgestellten] principles of procedure [ Verfahrens] are designated practices (275,61).

Kant is here making the very clever suggestion that, at least in the domain of morality, the very distinction between theory and practice—and thus the idea that there could be an important gap between them—is incoherent. An activity or institution is properly called a "practice" (Praxis), claims Kant, only if it is viewed as the instantiation o f some general principles (i.e., some theory); and a moral theory is adequate only to the degree that it provides a rational reconstruction—in terms o f general principles—of those practical judgments that constitute our ordinary moral consciousness. A s Dieter Henrich puts the point, "[Kant] speaks o f the theory as being inherent in moral consciousness and action itself. A s such it eo ipso is effective in a practical way." Thus a bad theory, to use Rawlsian language for the method that Kant is here adopting, is a theory that fails to put us in reflective equilibrium with respect to our pre-theoretical moral convictions. Such a theory will indeed deviate from practice, but this is because it is a bad theory (bad because o f this very deviation) and not because it is somehow inherent in the idea o f moral theory itself that it should be practically useless. This account o f the necessary connection between moral theory and practical belief recalls, of course, the first two sections o f the 1785 Grundlegung where Kant speaks o f his method as involving the "transition from the common 2

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Kant says that morality is quite different from speculative metaphysics in this regard. The claims of speculative metaphysics (e.g.. claims to detailed knowledge about the nature and will o f God) tend to involve "mere empty ideas that have either no practical use whatsoever or even one that would be disadvantageous. In such cases, therefore, that proverbial saying could be perfectly correct" (276, 62). 2

Dieter Henrich, ed, Kant, Gentz, Rehberg: Ober Theorie una" Praxis, Einleitung von Dieter Henrich (Frankfurt am Main: Suhrkamp Verlag, 1967), 10. ("Er spricht von der Theorie, welche dem sittlichcn Bewusstsein und Handeln selbst innewohnt. Als solche ist sie eo ipso in praktischer Wirkung") This very useful volume contains Kant's essay, the passages from Christian Garve to which Kant responds, and essays written in response to Kant by Friedrich Gentz and August Wilhelm Rehberg. Henrich's introduction is very useful, 3

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rational knowledge o f morals to the philosophical" and o f the "transition from the popular moral philosophy to the metaphysics o f morals." If we do conceptualize moral theory as the best rational reconstruction of our shared moral beliefs, then one worry about a theory/practice gap can indeed be met: the possible gap between moral theory and ordinary moral consciousness. (This gap is one that, I would argue, faces the utilitarian much more dramatically than it docs the Kantian; and demonstrating the gap is surely the main point o f all the well-known scapegoat and other counterexamples to utilitarianism. ) 4

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A s clever as Kant's suggestion is, however, it surely does not address all aspects of the theory/practice challenge to morality. For there are at least two different senses in which a moral theory can be thought to fail in practice. The first sense, one already discussed, involves the charge that a particular theory (e.g., utilitarianism) does not account for our considered moral judgments and thus cannot be the best rational reconstruction o f our moral consciousness. A second sense of the charge, however, involves a possible gap between our moral consciousness itself and the real world—the world of empirical reality. Consider, as an illustration, the retributive theory o f punishment. This theory is, it could be argued, the best rational reconstruction o f our considered moral judgments about punishment—e.g., the common moral belief that the guilty deserve to suffer. However, it is possible that this judgment itself presupposes a variety of false or self-deceptive views—e.g., about the nature o f crime and criminals, about the legal process, about what actually happens to people when they are punished, and about the nature of

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Grundlegung zur Metaphysik der Sitten (Foundations of the Metaphysics of Morals,

trans. Lewis White Beck, Indianapolis: Bobbs-Merrill Library of Liberal Arts, 1959, First Section and Second Section). 'Kant is perhaps more confident than he should be that it will be easy to identify shared moral beliefs—a confidence perhaps generated by his generally addressing too narrow a sample even of his own culture. But, unless we propose to treat other persons with contempt and not attempt to engage them in moral conversation at all, what alternative do we have except to search for some points of shared agreement? Idealized models of conversation and agreement (in Kant, Rawls, and Habermas) can perhaps be of assistance here.

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the societies in which people comfortably make the judgment that the guilty deserve to suffer. This is a different kind o f theory/practice gap than the one already discussed, but one that should not be hastily dismissed. The idea is that a person who lives too much in the world o f theory may negligently think that the world in which he actually lives admits o f clear application o f theory when in fact it does not. Such a person may even come to a distorted view o f the world by seeing the world only through the spectacles of his theory—thinking his theory is consistent with the facts because he does not realize that he is unable to accept as a fact anything that is inconsistent with his theory. (Paranoids, seeing all helpful gestures as threats, are masters o f this; but the tendency is also present in those who are mentally normal. Think of those who see all welfare recipients as chiselers, all poor people as lazy, all criminals as free and responsible, and—to shift ideologies—all women as really desiring the independent and autonomous status that (supposedly) comes from having a career. ) 6

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Kant is not indifferent to such problems in "Theory and Practice" and suggests that the existence of such people shows, not a weakness in theory, but a weakness in human nature—the problem that some people simply lack the "natural gift" of judgment: For to the concept of the understanding that contains the rule must be added an act o f judgment by means of which the practitioner decides whether or not something is an instance of the rule. And since further rules cannot always be added to guide judgment

I expand on this idea in my essay "Marxism and Retribution." Philosophy and Public Affairs 2.3 (Spring 1973), reprinted in my Retribution. Justice and Therapy.: Essays in the Philosophy of Law (Dordrecht: Reidel. 1979). See also Life Sentences. Rage and Survival Behind Bars, ed. Wilbert Rideau and Ron Wikberg (New York: Times Books, 1992). I wonder how many people, after reading this book and seeing what life in an American prison is really like, will continue to feel comfortable saying "they deserve it"? There is. of course, this very important point still to be said in defense of the retributive theory: only by regarding deserved suffering as the norm lor legitimate punishment can we see the terrible injustice of what we are actually doing. For more on this point see my "Three Mistakes About Retributivism," Analysis (April 1971), reprinted in Retribution. Justice and Therapy. 6

Stephen Carter has noted that the way in which minority academics are perceived is to action in university hiring. See his Reflections of an Affirmative Action Baby (New York: Basic Books. 1991) 7

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Character, Liberty, and Law in its subsumptions (for that could go on infinitely), there can be theoreticians who, lacking judgment, can never be practical in their lives (275, 61).

Kant has part o f the story here, but surely there is more that needs to be said. It is true that some people simply lack judgment It is also true, however, that many people make faulty judgments, not simply because they lack some "natural gift," but because they are caught up in complex webs o f false consciousness and self-deception—webs perhaps built and encouraged by certain philosophical theories.

Kant clearly saw this in 1793 because the

insight plays a profound role in his Religion, published in that year.* But in ' T h e o r y and Practice," published in the same year, the insight is missing.

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There is still one additional passage in Kant's introduction that requires comment- Kant writes: All is lost when empirical and therefore contingent conditions of the application of law are made conditions o f the law itself, and a practice calculated to effect a result made probable by past experience is thus allowed to predominate over a self sufficient theory (277. 62).

"(People] may . . . picture themselves as meritorious, feeling themselves guilty of no such offenses as they see others burdened with; nor do they ever inquire whether good luck 8

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Except, perhaps, in passing. In discussing the defects in Christian Garve's account of

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On one interpretation, Kant is clearly correct in what he says here. If I am really morally required to do X , then the fact that it would now be very difficult for me to d o X or the fact that things happened to come out well in the past when I did not do X is irrelevant in determining my duty.

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factors could at most be relevant in excusing me for the nonperformance o f my duty. On another interpretation, however, Kant may well be mistaken. It is not unreasonable to suggest, for example, that the proper specification o f the moral duty itself may sometimes quite properly take account o f empirical variations in circumstances.

Consider, for example, the duties that we

have—in both morality and law—to do what is reasonable in certain circumstances, where reasonableness is partially understood in terms o f what might happen to us (the risks we run) in acting in a certain w a y .

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Consider

also our concept o f a "white lie"—a lie about a minor matter that will do no harm and perhaps great good.

Philippa Foot writes instructively on such

matters: Etiquette, unlike morality, is taught as a rigid set o f rules that are on occasion to be broken. We do not, as we might have done, incorporate the exceptions to rules about handshaking and so on into the code of etiquette.... But morality we teach differently. Moral rules are not taught as rigid rules that it is sometimes right to ignore; rather we teach that it is sometimes morally permissible to tell lies (social lies), break promises (as e.g. when ill on the day of an appointment) and refuse help (when the cost of giving it would be, as we say. disproportionate). So we tend, in our teaching, to accommodate the exceptions within morality, and with this flexibility it is not surprising that morality can seem "unconditional" and "absolute." In the official code of behavior morality appears as strong because it takes care never to be on the losing side.

So-called "Good Samaritan Statutes" often impose duties of this nature: A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others" (Vt. Stat. Ann. tit 12. Section 519). l0

"Philippa Foot, " A r e Moral Considerations Overriding?" in her Virtues and Vices (Berkeley: University of California Press, 1978). 186-87. A very rich discussion of the issues raised by Foot is to be found in Samuel Scheffler, Human Morality (Oxford: Oxford University Press, 1992), esp. chapter 4.

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Except for the odd—and to me quite unjustified—cynicism o f the final sentence, Foot seems to be on to something very important here—something that Kant, with his well-earned reputation for rigidity, often, i f not always, misses- If moral theory is indeed a rational reconstruction o f our ordinary moral consciousness, and i f it is a part o f that consciousness that (for example) social lies arc sometimes permissible, then Kant can maintain that moral rules never admit o f exceptions only i f he is willing to accommodate these exceptions into the specification o f the rules themselves. And the first formulation of the categorical imperative may often allow this, since the maxim " t o pay a false compliment when so doing will build a person's confidence'* (for example) is probably universalizable. There are, of course, no exceptions allowed to the categorical imperative itself (morality is indeed rigid in that sense), but it does not follow from this that the categorical imperative (first formulation), when screening specific maxims for their moral permissibility, would never allow us to make exceptions to the rigid rule "never lie," Indeed, the universalization form o f the categorical 12

13

Kant does not always miss this point, of course. Indeed, he characterizes an imperfect duty as one that "permits exceptions in the interest of inclination" {Foundations* 39. note 10). What he means by this is that an imperfect duty such as charity allows each person to exercise some choice over the persons or causes which will be the beneficiaries of his charity (e.g., cancer research or food for the hungry) and the nature and quantity o f the sacrifices that will be made (e.g., volunteer work or financial contributions). "Exception" (Ausnahme) is a poor word choice here, since Kant does not really mean to say that one may make exceptions to the duty out of inclination but rather that some inclinations with respect to person, time, place, and manner may enter into the specification of the duty itself—the duty being understood informally as a duty to do something for somebody sometime. So specified, the duty allows us some choice—based on inclination—of how to fill in the variables. The issue of the limits that might be placed on such choices raises interesting questions, but they must be left for another paper. For a rich discussion of Kant on the duty never to lie. see Christine M. Korsgaard, "The Right to Lie: Kant on Dealing with Evil," Philosophy and Public Affairs 15:4 (Fall 1986), 325-49. For more on the perfect/imperfect duty distinction see my Kant: The Philosophy of Right (London: Macmillan, 1970), 51-53. and especially Lewis White Beck, A Commentary on Kant's Critique of Practical Reason (Chicago: University of Chicago Press, 1960), 147ff. 12

I think that at best you look all right but I lie and say "you look great" to build your confidence immediately before you give a public speech. Do we not all consider this permissible? 13

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i m p e r a t i v e probably w o u l d not identify the rule " n e v e r l i e " as the correct moral rule about l y i n g .

14

F o o t has insight on these matters, and Kant i s — i n m y

view—simply

mistaken if he docs not to s o m e degree incorporate it into his theory.

The

issue is complicated, h o w e v e r , and the cynicism o f F o o t ' s final sentence may suggest that she has a ( m i s p l a c e d ? ) Kantian scruple or t w o o f her o w n here. So much (at last) for K a n t ' s introduction. I shall n o w proceed to discuss the b o d y o f K a n t ' s essay, w h e r e Kant w i l l seek to establish that his o w n theory, properly understood, does pass the test that he h i m s e l f imposes in the e s s a y — n a m e l y , that the theory be motivationally realistic and applicable in the design and critique o f actual human institutions:

As I long ago argued in my Kant: The Philosophy of Right (supra note 12). I think that Kantian universalizability is best understood not as what Seyla Benhabib has called "a silent thought experiment" but rather in terms of models of conversation and agreement of the kind that one finds in the writings of John Rawls. (Kant's own best statement of such a model is to be found in the second section of "Theory and Practice.") Perhaps the question "Is lying under these circumstances universalizable?" is best interpreted as "Would lying in these circumstances be permitted by the best account of the rules of truth telling?"—where "best account" is interpreted as "the account that would emerge from a certain model o f conversation and agreement." Even if social lies are universalizable. however, it is less clear that they arc consistent with the duty to treat all persons with the respect owed to them as ends in themselves For the claim that lying runs into particular problems from the respect for persons (second) formulation of the categorical imperative, see Korsgaard, "The Right to Lie/ In Kant s 1797 essay "On a Supposed Right to Lie from Altruistic Motives" (Ober ein vermeintes Recht aus Menschenliebe zu lilgen) he argues, unpersuasively in my judgment, that all lies fail the universalizability test. See also his argument in the Doctrine of Virtue {Tugendkhre) (chapter 2. section 1) that lying, involving a misuse o f our faculty of communication, violates a duty we have to ourselves. (The best translation of the essay may be found in Immanuel Kant, Critique of Practical Reason and Other Writings in Moral Philosophy, trans. Lewis W. Beck [Chicago: University o f Chicago Press, 1949], 346-50. The best translation of the passage from theTugendlehereis to be found in Mary Cambridge University Press, 1991], 225-27. A revised Beck translation of the Critique of Practical Reason alone was published by Macmillan in 1992.) For more on the conversation-agreement model of universalizability, see Seyla Benhabib, "Afterword: Communicative Ethics and Contemporary Controversies in Practical Philosophy" in The Communicative Ethics Controversy, ed. Seyla Benhabib and Fred Dallmayr (Cambridge: MIT Press, 1990). 14

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Character, Liberty, and Law Concern over the empty ideality of concepts completely disappears in a theory based on the concept of duty. For it would not be a duty to pursue a certain effect o f our will (whether it is thought of as completed or as continually approaching completion) if it were not possible to do so in experience, and this is the only kind of theory we are considering in this essay (276-77, 62). 15

2.

CONTRA

GARVE

Christian Garve was one o f Kant's contemporaries—a writer o f popular philosophy (a philosophe) whose moral seriousness was respected by Kant. Even though Garve published some criticisms o f Kant that Kant regards as in part misinterpretations, Kant treats these criticisms with general courtesy and does not deploy the full polemical force o f which he is capable.

This

courtesy and respect may also be based on Kant's realization that not all o f Garve's criticisms are simple misunderstandings and that some o f them, indeed, are potentially serious and require a careful response.

16

Kant's o w n moral theory stresses that duty is to be determined after abstracting from inclination and must (in cases o f true moral worth) motivate in independence from inclination; he is famous for his claim that an action adds to the moral credit o f the agent only if it is motivated by respect (Achtung) for duty)

17

Garve (greatly under the influence o f British moral

Kant is here, o f course, doing nothing more than staling his famous principle that "ought" implies "can"—a principle he never actually stated in the exact form in which it is often quoted: "One of Kant's most famous 'statements'—"Thou canst because thou shouldst"—does not exist in his writings in this neat form (see David Baumgardt, "Legendary Quotations and the Lack of References," Journal of the History of Ideas 7 J1947]: 116). But statements that express this inference less succinctly abound, e.g.. Critique of Practical Reason 30:118-19; Critique of Pure Reason, A807-B835; Ober den Gemeinspruch 8:287; Metaphysik der Sitten 6:380; Streit der Fakultaten 7:43-44; Vorlesungen iiber Metaphysik, ed. Kowalewski, 600; Opus postumum 21:16." (Beck. Commentary, 200nJ l5

Kant's response is directed primarily to some explicit criticisms of his views made by Garve in the 1792 Versuche iiber verschiedene Gegenstande aus der Moral, der Litteratur und dem geseltschaftlichen Leben (Essays on Various Topics from Morals, Literature, and Social Life). The most relevant portions will be found in Henrich, Kant, Gentz. Rehberg. 'see, for example. Foundations, I6ff. Kant's actual claim is that acts have moral worth only if performed from a motive of respect for duty, but agent assessment is (at least in my judgment) his real concern in such passages. As he makes clear in his distinction between pflichtmassig actions (right actions or actions in accord with duty) and actions performed aus 16

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philosophy) is the first in a long line o f anti-Kantians who argue that this theory is fatally defective because it cannot give proper weight to the role o f the emotions in morality. Although such later critics as Schopenhauer (in the 1841 On the Basis of Morality) will chide Kant for ignoring or downplaying sympathy and other examples o f what Barbara Herman calls "motives o f connection,"

18

Garve is particularly interested in the emotions o f self-regard,

particularly the desire for one's own happiness. The selfish desire for one's own happiness is, according to Garve, ( 1 ) recognized in common experience as the actual motive for all human action, ( 2 ) the only motive that yields a coherent account o f rational deliberation, and ( 3 ) the only motive that can be "reconciled with the customary principles o f psychological explanation (all o f which are based on the mechanism o f natural necessity)" (285, 6 8 ) .

19

Garve makes points ( 1 ) and ( 2 ) in the following passages quoted by Kant: "States must be perceived and distinguished so that one of them can be given preference above the others before a person can proceed to choose among them and, consequently, before one can settle on a certain end. But a state that is preferred to other states of being by a creature endowed with consciousness of itself and o f its state is, when this state is present and perceived by that creature, a good state; and a series of such good states is

Pflicht (actions motivated by duty), he does not think that motives must enter into all relevant moral assessments of actions. See my "Kant's Concept of a Right Action," Monist 51:4(1967). 574-98. The depth of the conflict between such motives and Kantian duty is often overstated. The Kantian can surely grant, for example, the value of these motives and actions based on them so long as they are pursued within the constraints of a basic structure that is just. By far the richest discussion o f such matters is to be found in the essays of Barbara Herman—who argues not merely that Kant can allow a place for such motivational considerations but that he must acknowledge them as"principlesof moral salience" in order to apply the categorical imperative. See her "The Practice of Moral Judgment." Journal of Philosophy 82 ( 1 9 8 5 ) , 414-36, and "Agency, Attachment, and Difference," Ethics 101:4 l8

(1991), 7 7 5 — 9 7 .

Some of Garve's other claims really arc just simple misunderstandings of Kant, and I will not bother to discuss them in detail. Contrary to Garve, Kant is not a sour killjoy who counsels that human beings should renounce their desires for happiness; he simply argues that they must forget about such motives when determining their moral duties. Neither does Kant's belief that a moral world (e.g.. a world governed by a just God) would distribute human happiness in proportion to human virtue commit him to the belief that either human beings or God is motivated by a desire for happiness in seeking this outcome. They are motivated, surely, by the perceived justice o f such a pattern o f distribution. l9

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Character, Liberty, and L a w the most general concept expressed by the term happiness." Further " A law presupposes motives, and motives in their turn presuppose a previously perceived difference between a worse state and one that is better. This perceived difference is the element of the concept of happiness, etc." Furthermore: "The motives behind every effort arise from happiness in the most general sense of the term, including compliance with the moral law. I must first know in general whether something is good before I can ask whether fulfillment of moral duties falls under the rubric of the good. Man must have an incentive to set him in motion before he can establish a goal towards which this motion should be directed" (281-82. 65-66), G a r v e is arguing that practical deliberation (including moral deliberation)

is instrumental in nature—actions being a p p r o v e d as rational to the degree that they represent efficient steps toward an outcome identified b y the agent as "the g o o d , " But what d o e s it mean, asks G a r v e , for an agent to identify s o m e o u t c o m e or goal as g o o d (das Gute)? S i m p l y this: it is an object of

preference (Vorzug) ( o r want, or desire). A n d what is an object o f preference? S i m p l y this: an object expected to produce happiness w h e n attained. Thus ( o v e r s i m p l i f y i n g

a b i t ) G a r v e seems to be offering the

following

equation: g o o d = preference satisfaction = happiness. A c c o r d i n g to G a r v e , to say that I regard something as a g o o d is simply to say that I prefer it, and the only intelligible ground for preferring something is the b e l i e f that it w i l l ultimately

play

a

role

in

my

overall

happiness.

Thus respect

for

d u t y — K a n t ' s sole candidate for a m o t i v e that is truly m o r a l — e i t h e r does not exist o r may b e reductively analyzed in terms o f the desire for personal happiness. In short, I d o m y duty either because it pleases m e to d o s o o r because I fear thatI w i l l feel bad if I d o n o t .

20

Kant's response to G a r v e is complex and overlaps, at certain points, with Bishop Butler's well-known response to H o b b e s ' s doctrine o f p s y c h o l o g i c a l egoism.

21

Kant's response, as I interpret it, can be distilled into three basic

arguments.

(1)

T h e phenomenological

evidence

provided

by

honest

The challenge posed by Garve is essentially the same challenge addressed by Kant in the long second footnote on pages 17-18 o f Foundations, The footnote begins this way: "It might be objected that I seek to take refuge in an obscure feeling behind the word "respect.'" Several of Kant's arguments in the note appear again in the response to Garve, 'Those not familiar with Butler's attempted refutation o f the doctrine of psychological egoism that he imputes to Hobbes will find a good general discussion o f the matter in the chapter on Butler in C, D. Broad, Five Types of Ethical Theory (Patterson, NJ.: Littlefield, Adams, 1959). 20

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introspection reveals that in fact we all recognize a sharp distinction between the motive o f respect for duty and all motives concerned with our own welfare or happiness. ( 2 ) W e do take satisfaction when we do our duty and do indeed fear bad feelings when we do not. Such feelings are not the basis o f respect for duty, however, but indeed can themselves be understood only through the realization that we value duty for its own sake. ( 3 ) The apparent plausibility o f Garve's argument rests upon a variety o f conceptual confusions and ambiguities—e.g., with respect to the meanings o f such terms as "preference" and "the good." Personal inclination does play a role in determining duty, but not in the way that Garve thinks; the role it does play is not only consistent with Kant's theory but is required to make sense o f that theory. Let me now explore each o f these three arguments in more detail. ( 1 ) The phenomenology of moral experience. According to Kant, the nature o f moral motivation often reveals deep psychological conflicts between what we see as our duty and what we want or desire (in any ordinary sense o f "want" or "desire"). Think, for example, o f duties owed to strangers (people for whom w e have no feelings) or to enemies (people toward whom w e have negative feelings and who may even be in a position to harm us). W e clearly can have such duties and sometimes at least find ourselves acting because o f them in the full consciousness o f the fact that, given our feelings, we would prefer to be acting otherwise. The specially conflicted nature o f moral motivation (the aspect o f it that makes us see duty as a categorical imperative ) simply does not emerge on Garve's account—a flaw that prevents it from being an accurate picture o f our shared moral phenomenology. Kant writes. 22

Everyone is capable of rigorous self-examination and can perceive himself becoming conscious notjustof the absence of such contributing motives [for happiness], but even more of self-denial regarding many motives that conflict with the idea of duty and thus with the maxim of striving toward that purity [in one's concept o f duty].... Indeed, if the

Any rational demand—even a prudential one—can conflict with some powerful desires, and this is why (according to Kant) all demands of reason often appear as imperatives. Moral imperatives appear as categorical, however—by which Kant means they appear to bind regardless of any of our desires and continue to bind even when they are in conflict with all of our desires. See Lewis White Beck, "Apodictic Imperatives," in his Studies in the Philosophy of Kant (Indianapolis: Bobbs-Merrill, 1965). 22

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Character, Liberty, and L a w concept of duty has any validity for him, he will feel disgust at calculating the advantages that could accrue to him through its violation, just as if he still had the choice. . . (The claim that duty is based on selfishness] contradicts ... the inward experience that no idea more elevates and inspires enthusiasm in the human mind than that of pure moral conviction, which reveres duty above all else, struggles with life's countless evils, even its most seductive temptations, and nonetheless conquers all.... That man is aware that he can do this because he ought to reveals deep tendencies toward the divine that allow him to feel a sacred awe regarding the greatness and sublimity of his true vocation (28587, 68-70).

W e all, o f course, experience frequent conflicts between our various desires (should I continue the pleasures o f smoking or aim instead for a long if boring life?), but the conflict between duty and any desire seems different in kind—different because it at least appears as a conflict with my empirical self (as a bundle o f given wants) and not within my empirical self (one want against another). The difference in kind is marked, at least in part, in the special pride I feel—the special respect I feel for myself—when I choose duty over inclination. 23

( 2 ) The pleasures of being moral. This last argument by Kant could simply be taken as evidence that the ultimate motivation for moral behavior is indeed selfish. It surely feels good to take pride in one's actions. Thus perhaps the real motive for moral behavior is the desire to get the feeling o f pride and sublimity that comes from doing one's duty. ( A t the very least one may be motivated to avoid the painful guilt feelings that come from not doing one's duty.) Does not moral motivation then boil down to the search for personal happiness after all? Kant's answer here is clever. He does not deny that w e often obtain considerable happiness through acting morally—particularly the pride or selfsatisfaction attendant to such behavior. But what is it about such behavior, asks Kant, that gives us the special kind o f pleasure involved? Surely it is

Someone might well argue that Kant is making more out o f this than he should. Might one not also feel considerable pride in being able to give up smoking? It is difficult to be moral, but it is also difficult to be prudent. Thus overcoming difficulties in either realm could be an occasion of enhanced self-esteem. Kant may still be on to something, however. Perhaps his adjectives "divine," "sublime," and "greatness" have a special phenomenological fit with duty that is not present for mere prudential rationality. The claims of prudence allow one aspect o f the empirical self to dominate another. Perhaps the motive o f duty allows one to transcend the given empirical self entirely. This at least seems to be Kant's thought. 23

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pleasure—prideful pleasure—that we take in seeing that we are creatures capable o f appreciating moral duty and being motivated by it! Otherwise what would w e have to be proud of? Seeing ourselves as motivated by a desire to get moral pride would necessarily preclude our ever getting moral pride, and thus—if moral pride truly exists—we must actually be motivated by duty (or we must at least deceive ourselves into thinking that w e are so motivated). The good feelings generate neither duty nor respect for duty; they are rather generated by duty itself: Happiness consists of everything (but nothing more than) nature vouchsafes us; virtue, however, consists of what no one but man can give or take from himself If one were to demur and say that by failing to be virtuous a man can at least incur blame and pure moral self-reproach, thus self dissatisfaction, and can as a result make himself unhappy, we might assuredly agree. But only the virtuous man . . . is capable of suffering this pure moral dissatisfaction (which does not arise from any disadvantageous results of his actions, but from their very contrariness to law). Consequently, this feeling is not the cause but the effect of his virtuousness, and the motivation to be virtuous cannot be derived from this unhappiness (if one so chooses to name regret over a misdeed) (283n, 67n). Thus, at least in the realm o f moral phenomenology, Kant seems to win the battle with Garve. He is far closer to being right in his description o f the internal life o f the normal moral agent.

24

Praising Kant for the accuracy o f his phenomenological account o f morality should not, o f course, be confused with an endorsement o f his rich (bloated?) metaphysical account o f such matters.

25

Although Kant has an

This is not to say that there are no important problems remaining for Kant's account Kant has,I think, successfully established that there is a distinct moral motive of respect for duty—a motive that is not reducible to a mere selfish desire for personal happiness. Another argument would be required, however, to show that this is the sole moral motive—e.g., that sympathy and other "motives of connection" lack moral standing. Kant tends to confuse these motives with selfishness, and thus perhaps he wrongly believes that in giving reasons to discard selfishness as a moral motive he has also given reasons to discard these other motives as well. He is wrong about this, however A separate argument would be required, and he gives no such argument in 'Theory and Practice." In "Theory and Practice," Kant makes only one explicit reference to his metaphysical views about freedom of will and to his belief that these metaphysical views are necessarily presupposed to render morality as he understands it possible. This reference is in the brief footnote on freedom at 285, 68-69. 24

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elaborate and controversial account o f the contra-causal ("noumenal") freedom that he thinks must be present in the world in order for moral motivation to be distinguishable from typical desire-based motivation, w e do not need to accept all this to grant Kant's phenomenological point. The phenomenological point is simply this: normal human beings, though often motivated by means/ends rationality, are sometimes motivated in a different way. They understand moral reasons, conduct moral conversations and listen to moral arguments, and are then moved to act on the basis o f these reasons and arguments. This is at least part o f what Kant means by "moral autonomy," and this part surely requires no controversial or unscientific assumptions about non-natural causation. (Assume, i f you want, that responsiveness to moral reasons is encoded in human nature through some complex interplay between biology and conditioning.) Such a minimalist account o f moral autonomy is, for example, totally compatible with a Freudian theory o f the personality where the "super-ego" plays the role of respect for duty. Freud's theory of moral motivation overlaps Kant's to a substantial degree (it was perhaps influenced by it), and anyone who thinks that Freud has insight on moral phenomenology must agree that Kant has insight here as well. 26

One additional point, obvious but sometimes missed, is worth stressing. It is easy to misstate the nature of the tension between duty and inclination because the phrase "acting out o f respect for duty" is in some cases a misleading way for Kant to put his motivational point. Kant is not suggesting that, against all inclination, one is to go out looking for duties so that one can act with moral worth. This is not how duty arises in the life o f the normal person. In the typical case, one wants to do something (e.g., spend a large amount o f money on a new wardrobe); and one wants to do it in the perfectly ordinary sense in which "wants" means something like "desires" or " w i l l take pleasure in." (What one wants to do in this subjective sense is, when properly specified, what Kant calls a "maxim.") Before acting on such a subjective maxim, however, the moral person who respects duty will use the categorical imperative to test the maxim for its moral permissibility (i.e., to make sure that the maxim is not contrary to duty). If the maxim passes the test, the

For an interesting and persuasive attempt to harness Freud to the Kantian project, see Scheffler, supra note 1 1 , chapter 5. 26

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person is then free to act on it. If the person now acts, is it true to say that he acted from duty? In one sense, the answer is surely no; for the best explanation for his new wardrobe is "he wanted i t " and a crazy and unbelievable explanation would be "having it was required by duty" or (even stranger) "he bought the wardrobe because buying it was morally permissible." Yet surely the action is properly motivated and surely satisfies the Kantian sense o f acting out o f respect for duty. The moral: respecting duty should not be interpreted as the shunning o f all personal pleasures and desires for happiness in order to respond to the direct call o f duty. It should rather be interpreted as the commitment to pass all such desires through a certain kind o f screening or filtering device—the device provided by the categorical imperative and its demand for universalization. When one uses this screening device and accepts its verdict as final, one has—in the important sense—acted out o f respect for duty. For the Kantian, the inner voice o f morality functions more as a censor than as a drill sergeant. 27

( 3 ) The seductive charms of the selfishness theory. I f the kind o f egoismhedonism taught by Garve fails to capture our ordinary moral consciousness, then why are Garve and others still inclined to reject the Kantian account? The answer, surely, is their belief that the Kantian theory has such deep flaws that it must be rejected even i f this requires the rejection o f our ordinary moral consciousness as erroneous. What kind o f support might they have for such a negative assessment? Such support could be either conceptual (Kant's theory is incoherent) or scientific (Kant's theory is incompatible with the naturalism o f scientific psychology). I have already indicated why I think that the latter argument fails, so let me briefly consider the former.

There are, of course, numerous positive duties on the Kantian theory; for, with respect to any maxim that is not universalizable, the agent has a duty not to perform it—feeling at that point the direct conflict between duty and inclination that Kant often describes. (For example, since, according to Kant, the maxim of neglecting others in distress is not universalizable. agents have positive duties o f beneficence.) The point is that, for Kant, the starting point in developing duties is always some contemplated action that the agent seeks to perform for subjective reasons (e.g., personal happiness). Thus the subjective dimension is always present in moral calculation (in the form of maxims) from the outset. In this way, Kant's deontology differs from, for example, that found in divine command theory—a theory that starts, not with subjectively generated maxims, but with a list o f duties imposed at the outset from "outside." 27

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On this issue, w e have the familiar Hobbes-Butler dog and pony show with Garve and Kant as stand-ins. Garve argues that it makes no sense to think that a person could ever act unless he prefers to act in that way and that this truth makes any theory other than psychological egoism-hedonism incoherent. Kant responds that this argument plays on two different meanings o f "prefer." " I prefer X " may simply mean " I have some reason for choosing X . " Kant can happily concede that all actions are in this sense based on preference, for this is just another way o f saying that all actions are motivated; the claim that all actions are motivated may be tautological. ("Jones had a preference for his duty" is in this sense harmless and unobjectionable.) A quite different meaning o f "I prefer X , " however, is " I think it will give me pleasure to d o X . " Kant cannot, o f course, regard "It will give Jones pleasure to do his duty" as a harmless and unobjectionable analysis o f moral motivation. H e does not really have to confront this possibility, however, since the claim is not self-evident (not even intrinsically plausible) and Garve gives no good argument for it. Although it is true that duty is a matter o f preference where preference is simply equivalent to motivation, this docs not entail (is not even an argument for) the claim that duty is a matter of preference where preference is equivalent to pleasure. After arguing that Garve also trades on ambiguity in the phrase "the g o o d " (confusing instrumental good with final good, conditional good with unconditional good, and physical good with moral g o o d ) , Kant leaves this final assessment o f Garve's attack on his theory o f moral motivation: [It] can in no way be said that every stateI prefer to all others is regarded by me as happiness. For I must first be certain that I do not act contrary to my duty; only then am I allowed to look toward such happiness as I can make compatible with my morally (not physically) good state.... Therefore, that old litany—namely, that this feeling, consequently a pleasure that we set out as an end, is the first cause of the will's determination and that, as a result, happiness (of which that pleasure is an element) is, indeed, the basis of all objective necessity in action and hence of all obligation—is a trifling sophistry. If one cannot cease asking questions after a cause has been proposed for a particular effect, one will finally make the effect the cause itself (283-84,67).

3. C O N T R A H O B B E S Kant claims that the section on Garve was addressed to the topic o f theory and practice as it impacts on the moral individual—"in relation to the well-

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being o f each man" (277, 63). This long second section o f the essay is directed to the person as a political being—as a being, not now simply worrying about the possibility of moral motivation, but seeking to enjoy the benefits o f a basic social structure that guarantees fundamental rights at a constitutional level. If Kant's theory cannot help in this political task, it will have failed in one important way to apply in practice. Thus Kant needs to show that it can help, and this is the primary task o f the section. Kant sees this task as having two main aspects—aspects that do not sit comfortably together. He wishes (1) to demonstrate that his theory can help in the design o f just (i.e., rights-respecting) civic institutions and ( 2 ) to demonstrate that his theory shows why citizens have no right to revolt against legal authority even when that authority violates their rights and ignores or perverts the justice o f their institutions. Although I think that most o f Kant's arguments against revolution are confused (e.g., involving simplistic positivistic doctrines o f sovereignty), I plan to ignore this issue in the present essay and concentrate solely on his account of justice—drawing on the material on revolution only when it is useful to the other project. I do this for the following reason: since even before the publication of "Theory and Practice," the material on revolution has received essentially all o f the attention. (It is indeed the only aspect o f this essay that has not been generally neglected.) Kant's contemporaries eagerly awaited the work because they wanted to see if Kant, the world's leading philosophical liberal, would support the French revolution. Later commentators, generally uncomfortable with Kant's apparent refusal in the essay to support revolution under any circumstances, have generally probed the consistency o f this refusal with his general moral and political doctrines. Anyone now writing on this topic would need to survey this enormous body o f literature—a task not possible in the present context. 28

Although the second section o f the essay is said by Kant to be "against Hobbes," Hobbes's thought receives no detailed commentary. The negative reference to Hobbes essentially serves one main purpose: Kant wants to put his reader on notice that, in spite o f his agreement with Hobbes that citizens have no coercive rights against political authorities, he does not agree with

For a recent discussion of Kant on revolution (and a generous listing of other studies on the topic) see 341 ff. o f Leslie A. Mulholland's splendid Kant's System of Rights (New York: Columbia University Press, 1990). 28

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Hobbes that citizens have no important rights o f any kind against the state. (Recall

the United States Constitution here.

It grants citizens

many

fundamental rights against the state, but among these is not the right o f revolution.) Thus, the primary point o f this section o f Kant's essay is to identify the basic rights o f citizens and to place those rights within a general scheme o f justification i.e., within a theory o f justice. Kant's primary purpose in this section is to defend the principles o f a liberal social and political order—i.e., a basic social structure that will be just in the sense that it will protect the fundamental natural rights o f all citizens, particularly the inalienable right o f freedom.

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If such a liberal theory is to

survive the challenge that it works in theory but not in practice, it must provide a test or criterion for such a social order—i.e., some device that will allow us to recognize when a social order does respect rights in the proper way. For Kant, a model o f universal agreement (adapted from social contract theory) is such a device. He writes, [The original contract) is a mere idea of reason, one. however, that has indubitable (practical) reality. Specifically, it obligates every legislator to formulate laws in such a way that they could have sprung from the unified will o f the entire people and to regard every subject, insofar as he desires to be a citizen, as if he had joined in voting for such

According to Kant, the basic rights are freedom (freedom to be limited only to guarantee like freedom to others), equality (formal equality before the law—the right of each citizen to have others coerced to protect his freedom and to have his own prospects in life limited solely by his own talents, industry and fortune), and independence (the right to function in a legislative—i.e.. voting—capacity with respect to the laws that bind him). Although, when abstractly stated, these are good candidates for basic rights, Kant's own interpretation of them is occasionally shallow and shows that to a considerable degree he simply adopted the prejudices of his age. For example: He sees differentials in wealth resulting from inheritance as merely a matter o f "fortune," and he sees no problem in limiting the right to vote to adult males (children and women being called "naturally" unsuited at 295,76). Even among adult males the right is to be limited lo those who are their "own masters"—i.e., property owners (not laborers). This latter constraint is the occasion for one o f the most bizarre (and unintentionally humorous) passages in Kant—a passage (295-96, 76) in which Kant takes pains to attempt to show why barbers and woodchoppers may not vote even though tailors and wig-makers may. It has something to do with the relation in which they stand to the commodities with which they work, but the whole discussion defies intelligibility. Even Kant concludes his discussion by saying: "It is,I admit, somewhat difficult to determine what requirements a person must meet so that he can be his own master." 29

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a will. For that is the criterion of every public law's conformity with right. If a public law is so formulated that an entire people could not possibly agree to it (as, e.g.. that a particular class of subjects has the hereditary privilege of being a ruling class), it is not just; however, if only it is possible that a people could agree to it, it is a duty to regard that law as just, even if the people are presently in such a position or disposition of mind [Denkungsart] that if asked it would probably withhold its consent (297, 77-78).

Kant is, I think, outlining some very important ideas here—setting the groundwork for the constructivist methodology o f Rawls and the related conversational methodologies o f Habermas and others. I f a just society is essentially (as Kant says) a society that treats the natural right o f freedom as sacred, this freedom cannot be interpreted simply to mean the freedom to do what you want or the freedom to be bound only by rules to which you actually consent. This account o f freedom would allow no punishment o f criminals (who wants to be punished?), no taxation ( w h o wants to be taxed?), and no duties imposed on those citizens o f a democracy who did not vote with the majority (where is their actual consent?) Such an account would, in short, allow no coercion; and even just states, as states, are necessarily coercive. Coercion (forcing people to do what they do not want to d o ) is thus a political necessity. However, certain forms o f coercion are clearly inconsistent with respect for human freedom. For Kant, a clear example is paternalism: No one can compel me (in accordance with his beliefs about the welfare of others) to be happy after his fashion; instead, every person may seek happiness in the way that seems best to him, if only he does not violate the freedom of others to strive toward such similar ends as are compatible with everyone's freedom under a possible universal law (i.e., this right of others) (290, 72).

For the state to compel as a parent (treating subjects like "immature children," 290-91,73) is necessarily to fail to respect the freedom o f citizens. For the state to thwart the actual desires o f citizens and to compel them even when they do not actually consent, however, is not necessarily to fail in such duties o f respect. The difference? In the former case, it is impossible to imagine all citizens capable o f moral reasoning consenting, after extended

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argument and conversation, to a strong principle o f paternalism. (It is also impossible to imagine all such citizens consenting to permanent humiliation and powerlessness based on hereditary class or racial status.) It is, however, not difficult to imagine them all consenting to some legal principles that require punishment, some principles o f taxation, and the general principle o f majority rule. This, then, is Kant's test for justice: a principle o f coercion is just if it is possible that every citizen could consent to it in an environment o f mutually respectful moral conversation. Is this a good test? When it seems to work well, it is tacitly operating on one very important assumption—an assumption that perhaps keeps the test from being as foundational as Kant thinks. The assumption is that the imagined grounds for consent or dissent be reasonable. T h e powerful idea, I take it, is this: T o respect all persons as moral equals, we must consider (anticipate i f necessary) the kind o f objections that any thoughtful and morally sensitive person might make against our proposed coercion and regard the coercion as unjust if we see such objections as possible grounds for a reasonable refusal o f consent. Mere imagined refusal or assent—regardless o f its reasonableness—would surely not do, however. I can, for example, imagine persons failing to see the importance o f free political speech for the preservation o f just institutions and thus I can imagine them agreeing to coercive curtailment o f political speech. I would not want to conclude from this, however, that such coercion is just. Like Kant, w h o defends the "freedom o f the p e n " as the most basic political right (304, 82), I would want to maintain that free political speech is a requirement of justice even in the face o f my thought experiment (wherein I can imagine all citizens agreeing to its unreasonable curtailment). Thus surely the operative test must really be this: a coercive rule is just i f it is possible that all citizens could

agree to it on grounds that are informed and reasonable. If reasonableness is accepted as a constraint on possible consent, however, then consent itself perhaps cannot play quite the foundational role that Kant

Think of strong paternalism as coercing someone on the basis o f your own (or the community's) conception of the good. A weaker form of paternalism would involve coercing someone to help him realize his own conception of the good. The stronger the form of paternalism, of course, the more difficult it will be to justify within a Kantian framework. see Gerald Dworkin's "Paternalism" in Morality and the Law cd. Richard A . Wasserstrom (Belmont: Wadsworth, 1971). 30

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envisions. It will at least share the foundational role with an account of reasonableness. Although Kant speaks generally o f the natural right of freedom, he clearly does not regard all freedoms as equally fundamental. (This is revealed in his own insistence on the priority o f freedom of the pen.) It is impossible, however, to sort freedoms into categories of differential importance in terms o f freedom itself. Some other value is required. M y own view is that the best candidate is a concept o f the human good—a concept allowing us to rank as most important those freedoms that are intrinsically bound up with a reasonable account o f the human good. Political freedom is more important than (for example) the freedom to collect string, because the former is closely tied to the human good in a way that the latter is not. And what about sexual freedom—e.g., for homosexuals? W e surely cannot even begin to make a case for such freedom as fundamental without developing an account o f love, sexuality, intimacy, and the role they play in a full and good human life. If we see sexual freedom purely as freedom o f recreational pleasure, we will trivialize it and make it a very poor candidate indeed for a fundamental liberty. Could we imagine all citizens reasonably consenting to repressive rules with respect to homosexuality? If sex is just recreation, I think the answer is yes. If sex is more deeply tied to the good life, however, I think the answer is no. In short, if liberal societies must rank liberties (some more fundamental than others), then strong forms of the neutrality principle advocated by Ronald Dworkin and others must be rejected. 31

Kant seems officially committed to a neutrality principle (290, 72), in part because he finds it difficult to articulate a complex account of the human good. Either he sees it simply in terms of our moral powers (much too narrow—too moralistic—an account) or he thinks that it cannot be distinguished merely from the desire to be happy—a value on which he pours (as usual) a large dose o f contempt: The concept of external right in general derives entirely from the concept of freedom in the external relations among men and has nothing whatsoever to do with the ends that men have from nature (the objective of obtaining happiness), or with setting out the

See Ronald Dworkin's "Liberalism" in his A Matter of Principle (Cambridge: Harvard University Press, 1985), 181-204. 31

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Character, Liberty, and Law determining grounds with those laws (289, 72). [W]hen one looks to the people's welfare, everything depends not in the least on theory but only on practice that derives from experience.... (The concept of right] is grounded in a priori principles (for what is right can never be taught by experience) (306, 8 4 ) . ,:

Even i f one agrees with Kant that the concept o f external right should not depend upon happiness (as mere pleasure), one does not have to conclude from this that the concept o f external right should not depend on any account o f the human good. (Indeed, in my view, no plausible account o f the human good will attempt to interpret it merely as pleasure.) At one point in ' T h e o r y and Practice" Kant seems to recognize this. The issue is religious freedom and Kant's desire to defend it as a fundamental right: Whatever a people cannot decree for itself cannot be decreed for it by the legislator. .. . If, for example, the question is whether one can view a certain previously instituted ecclesiastical constitution as expressing the permanently enduring actual w i l l . . . o f the legislator, one would have first to ask whether a people may enact for itself a law [specifying) that, once adopted, certain articles o f faith and religious practices should endure forever, and thus whether it may prevent itself in the person of its descendants from further advancement in religious insight or from eventually correcting old errors? It will now be clear that any original contract among the people that made this a law would be null and void, for it would conflict with humanity's vocation and end (304-5, 83, italics mine.) Here Kant seems to impose a constraint on his consent test—a constraint involving the value o f "humanity's vocation and end." It is unclear just what this means, but it strikes me that it must in part be some notion o f the human good that is not a mere matter o f personal preference. What seems crucial to

Kant's desire to keep all considerations of happiness or welfare out o f moral and political theory may result from a confusion on his part over the concept of "determining ground." His theory of motivation requires that a desire for happiness may not motivate (and in that sense be a determining ground for) the moral will. It does not follow from this, however, that happiness cannot be a right-making characteristic and in that sense be a determining ground for mora! duty. (Even a utilitarian could act out of a motive o f respect for duty—something not ruled out merely because the utilitarian defines duty partially in terms of happiness.) A full theory of the human good would, of course, involve much more than happiness. It would not, however, involve only elements that "could never be taught by experience." 32

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Kant here is not a general failure o f possible consent to such a law, but rather a failure o f consent on the part o f persons who understand the nature and value of religion in human life. There are, then, perhaps some beginnings here o f the kind o f account that Kant needs and that he develops in more detail in other writings. In 'Theory and Practice," however, it is nothing more than a mere hint. 33

4.

CONTRA MENDELSSOHN

This final section o f Kant's essay is not, in my view, really about what Kant says it is about: right and justice in international law. It is directed against Moses Mendelssohn, but not against anything Mendelssohn said about international law or "the cosmopolitan point o f view." Most commentators take Kant's own gloss to heart, however, and note this final section o f 'Theory and Practice" merely as a brief anticipation o f the doctrines that will be developed in detail in the 1795 Perpetual Peace. What, then, is the real point o f this section? It is, in my view, a counsel against moral despair. Note the question with which Kant begins the section—a question having little to do with international justice but a great deal to do with the temptations o f moral pessimism: Is the human race as a whole to be loved; or is it something that one is to view with distaste, wishing it all the best (so as not to become misanthropic), but not really expecting it, so that we turn our attention away from it, though with feelings of regret? . . . We cannot avoid hating in human nature ... what is and will remain evil especially the deliberate and mutual violation of man's most sacred rights. We may not actually want to do men harm because of this evil, yet we do want as little to do with them as possible (307, 85).

Mendelssohn had defended the pessimistic v i e w , and this is the sense in which Kant's final section—an attempt to meet the pessimism—is truly 34

Browse, for example, through the Doctrine of Virtue, supra note 14. A rich and complex (even if not totally satisfying) conception o f the human good is developed there. Kant is responding to views expressed by Moses Mendelssohn in his 1783 Jerusalem, oder uber religiose Macht und Judentum (Jerusalem, or on Religious Power and Judaism). Kant's own views on radical evil in his Religion show that he was by no means blind to humanity's dark side. 33

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contra Mendelssohn. There is nothing more basic to Kant's moral and political outlook than his view o f human beings as sacred or precious—beings having the unique value o f dignity (Wiirde) that is the foundation o f their basic rights. If human beings do not deserve such respect, however, then Kant's theory—which assumes that they d o — w i l l fail in practice. The view that human beings are sacred is, o f course, basic to the Christian worldview in which Kant was raised, but Kant the philosopher will not allow himself, through mere faith, to avail himself o f its theological defense, that people are sacred because they are created in God's image. I f people are genuinely sacred, it must be because o f something about them that can be understood in a secular, empirical way. But is this possible? Some philosophers, such as Robert Nozick, have argued that the demonstrated human capacity for unspeakable evil (e.g., the Holocaust) shows that human beings are dramatically unworthy o f the kind o f deference paid to them by Kant. Though Mendelssohn's view was not as bleak as Nozick's, neither is it terribly upbeat: " T h e human race as a whole swings slowly back and forth, and it never takes a few steps forward without soon afterwards relapsing twice as fast into its previous state" (307, 8 5 ) . 35

J6

It is in responding to Mendelssohn's pessimism that Kant makes reference to emerging international law—only as an example o f a general point he wants to make about humanity as a progressive species: "Human nature never seems less lovable than in the relations among entire peoples" (312, 89). Y e t Kant sees signs that moral tendencies in (at least some) people are gradually moving the world toward an international legal order, an order that will end the wars that have brought out the worst in humanity. If human history does indeed continue to move in this way, it will be easier (according to Kant) to see humanity as a moral and progressive species that is perhaps deserving o f some special respect. But who really knows? Kant, rejecting (in philosophy) all appeals to religious faith, can do no better than close "Theory and Practice" with a statement o f secular faith:

Robert Nozick. The Examined Life (New York: Simon and Schuster, 1989). 236-42. As I read this passage I cannot help thinking of Eastern Europe—particularly the "ethnic cleansing" currently taking place in the former Yugoslavia. We did not get to celebrate the lifting of totalitarianism for more than a few days before human bestiality raised its ugly head in a different form. It is hard not to become discouraged. 35

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If seeing a virtuous man struggling with tribulations and temptations towards evil and yet holding his own against them is a sight fit for a divinity, so is it a most unfit sight for even the commonest but well intentioned man, not to mention a divinity, to see the human race advancing from period to period towards virtue and then soon afterwards to see it again falling as deeply back into vice and misery as it was before ....I will thus permit myself to assume that since the human race's natural end is to make steady cultural progress, its moral end is to be conceived as progressing toward the better... For I rest my case on my innate duty . . . to affect posterity that it will become continually better. ... In this latter I also take into account human nature, which, since respect for right and duty remains alive in it, I cannot regard as so immersed in evil that after many unsuccessful attempts, morally practical reason will finally triumph and show it to be lovable. Thus, even on the cosmopolitan level I stand by my assertion; What on rational grounds is true in theory is also useful in practice (311-13, 86-89). 37

Kant had not, o f course, seen evil on the scale that w e have known in the twentieth century. Suppose he had known o f the Holocaust. Would he have joined Nozick in seeing it as evidence o f total human worthlessness? I think not; I think his moral faith would have survived even this. After all, unless human beings are precious, what is so bad about murdering six million o f them?

Properly to condemn the Holocaust—as a crime against human-

ity—requires a view o f humanity as having a value at least very like Kant's value o f dignity.

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Thus Nozick's moral pessimism is probably prema-

A s Philip Quinn pointed out to me in correspondence, having faith in the moral progress of the species does not alone provide reasons for respecting each individual member of that species. This individualized respect may require something very like the kind of religious faith that Kant wants to reject as foundational in his moral theory. Perhaps human dignity itself can only be defended as a "postulate of practical reason." I have started a very superficial exploration of the possible religious basis for Kantian dignity in my "Constitutionalism, Moral Skepticism, and Religious Belief in Constitutionalism: The Philosophical Dimension, ed. Alan S. Rosenbaum (New York: Greenwood Press, 1988). 239-49 (and reprinted in Retribution Reconsidered) and in my "Human Decency and the Limitations of Kantianism" (in the present volume). But Kantian dignity does not quite, at least to my mind, capture it all. I have never felt more deeply the moral horror of the Holocaust than when I read of the murder (at Babi Yar) of the central character in D. M. Thomas's novel The White Hotel So much that was wonderful and precious was lost in the death of this woman (a fictional representative of all the victims of that atrocity), and not all of it is (in my view) to be captured in some ideal of moral autonomy (the core idea in Kant's concept of dignity). Kant is perhaps inclined to overmoralize the value incarnate in the human person. l7

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ture—probably even inconsistent with his own activities as a concerned philosopher. Kant says this o f Mendelssohn: The hope for better times, without which an earnest desire to do something that benefits the general good would never have warmed the human heart, has always influenced the work of the well-intentioned; and good Mendelssohn must have counted on it when he so eagerly strove for the enlightenment and welfare of the nation to which he belonged. Because unless others after him continued further down the same path, he could not by himself, alone, rationally hope to bring them about (309. 86-87).

Thus here w e find Kant, the great secular rationalist, adopting as an article of faith the view o f humanity and its possibilities necessary to avoid moral despair and to leave the door open for whatever good may be realizable. ( W e must think and act as if what is true in theory is also possible in practice, since life is bearable and meaningful on no other assumption.) Here also w e find Kant, one of the supposed founders o f the philosophy o f "possessive individualism," adopting a communitarianism o f the most ambitious sort: hopeful and sympathetic fellowship with the entire human community in its present and future generations and admiration for those who (like Mendelssohn with respect to Judaism) seek to preserve the special values of their own subcommunities within such an ongoing scheme o f human progress. Perhaps rationalistic libertarians are not Kant's only natural bedfellows after all.

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HUMAN DECENCY AND THE LIMITATIONS OF KANTIANISM 1. H U M A N I T A R I A N I S M A N D R I G H T S

As I write this paper in December o f 1992, armed forces (mainly from the United States o f America) are landing in Somalia for the stated purpose o f helping to get food to the countless persons in that region w h o are facing starvation. For present purposes I will simply assume that the stated purpose is the true purpose and will regard this as a humanitarian intervention in Somalian affairs. Action o f a similar sort is being contemplated for other regions—e.g., Bosnia-Herzegovina. This military action raises interesting and important questions in the philosophy o f international law, but these questions will not be my primary concern in this paper. I am rather concerned with an issue o f domestic law and morality: Is it legitimate for a government to demand o f its own citizens the sacrifices in wealth and perhaps life entailed by such military action when the purpose is not self-defense or national interest but is rather humanitarian in nature? Kantianism, as typically understood, would seem to require the answer no to this question. In his Rechtslehre, for example, Kant argues that state coercion is justified only to protect rights— particularly the citizens' rights to certain basic negative freedoms. ( B y a "negative freedom" I mean the freedom from wrongful coercion by others, not such things as the freedom from want or illness.) Although Kant makes a case for limited social welfare at government expense. I have argued elsewhere (Murphy 1970) that his case is inconsistent with the general thrust o f his argument in that work. Kant does not believe that citizens within a country have a right to demand positive assistance from other citizens o f that country. (In his moral theory, Kant characterizes the duty to help others as imperfect—meaning, among other things, that the duty does not rest upon rights and is thus highly discretionary.) If homeless and hungry citizens within the United States o f America do not have a right to assistance from their government, then a fortiori the residents o f Somalia cannot have such a right. Thus Kantianism, on one common interpretation, must condemn such actions as illegitimate exercises o f governmental power. (There are complexities in these matters

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that I cannot explore in so brief a paper. One might argue, for example, that assistance for the Somalians is not merely to provide welfare but also to protect rights—e.g., the right that food donated to them not be stolen at gunpoint by various warlords. One might also argue that, even i f the state has an obligation to provide welfare for its own citizens, this does not hold for citizens o f other countries—no matter how desperate their plight. Whether national boundaries and national sovereignty would continue to be regarded as having great moral force in a properly understood Kantianism is a matter that might be explored during discussion.) 2. H U M A N D E C E N C Y Many would regard Kant's position on rendering aid to represent a serious weakness or limitation o f Kantianism—the weakness o f focusing on the formal or legalistic aspects o f morality (e.g., rights) to the exclusion, or at least underemphasis, o f other aspects o f morality o f possibly equal or greater importance (e.g., human good). Some might also argue that the emphasis on rights flows from the excessive rationalism o f Kant's theory, a rationalism that leads him mistakenly to downplay the important role o f the emotions (e.g., sympathy, compassion) in morality. I f helping the Somalians to avoid starvation seems like a morally correct (perhaps morally mandatory) thing to do, such a view would seem to find a more congenial home in a sympathy based ethic than in one o f Kantian rationalism. Some would say that the proper moral response to seeing a starving child is an immediate " I simply cannot let this happen" rather than inaction or delay based upon the belief that the starvation o f the child, unfortunate as it is, is not o f powerful moral significance because no rights are involved. Those who do think in this way will probably find Kantianism an uncongenial framework in which to structure their moral thinking. One might say that certain ways o f responding to people, though involving no violations o f their rights, are simply indecent. (Judith Jarvis Thomson (Thomson 1986, pp. 1-19) introduces the concept o f decency in a discussion of the parable o f the Good Samaritan in Luke 10:30-35.) Suppose I see an injured stranger suffering and perhaps dying at the side o f the path where I am walking. On most theories o f rights (certainly on Kant's), this stranger has no rights against me at all. Thus, even i f I could save him with minimal effort and sacrifice on my part (perhaps no more than a telephone call), I will

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not be acting unjustly or failing to respect his rights even i f I ignore him utterly and g o on my way. Kant says, o f course, that I have imperfect duties to assist others in need, but he also says that such duties admit o f wide discretion (based on inclination) with respect to time, person, and manner in which they are fulfilled. (The imperfect duty to help some people, some time, in some way is derived, according to Kant, from the fact that rational beings would not be willing to live in a world in which the principle "never help people in distress" was operative as a universal law.) Thus a Kantian might say this to the stranger: "I don't have to help you because I helped someone yesterday or plan to help someone tomorrow" or " I choose to help humanity, not by assisting you. but rather by giving to various public charities." These responses seem just plain wrong. Even if no rights are involved, it is simply indecent to ignore great suffering when that suffering could be relieved with minimal sacrifice. A n d surely some cases o f moral indecency (e.g.. this one) can appear as much graver wrongs than some rights violations (e.g.. the breaking o f a promise o f minor importance). In short, insisting that rights are always more worthy o f respect than any other moral claims (e.g.. claims o f decency) strikes many persons—including me as counterintuitive. If this is indeed a consequence o f Kantianism, then this i s - - i n my judgment - a serious problem for Kantianism, a problem demonstrating that Kantianism suffers from serious limitations—limitations that at the very least prevent it from being the whole story about morality and its claims upon us. 3. T W O S T R A N D S O F K A N T I A N I S M I think that there is a way in which appeals to what I have called basic decency can be incorporated into a moral framework that is, even i f not precisely what was intended by Kant himself, still Kantian in spirit. This will require drawing a sharper distinction between the various forms o f the categorical imperative than the distinction drawn by Kant himself. Kant claims that all forms o f the categorical imperative are (in some unspecified sense) equivalent- e.g.. whatever emerges as a duty from the Universal Law formulation will also emerge from the Humanity as an End in Itself formulation and vice versa. I am not so sure about this. The Humanity as an End in Itself formulation (which I shall from now on call the

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Respect for Persons formulation) clearly possesses the greater rhetorical and inspirational power, but it strikes me as more philosophically basic as well. The Universal Law formulation instructs all moral agents, as rational beings, to ask themselves if their contemplated actions (their " m a x i m s " in Kant's language) could be universal laws o f nature. This formulation, making consistency the basic operative concept in ethics, emphasizes rationality and quite naturally yields the kind o f formalism and rule-directed conception o f morality in which the idea o f negative rights can quite plausibly appear central. It has, however, little rhetorical or inspirational power. Who would have endured "blood, toil, tears and sweat" for the sake o f universalizable maxims? The Respect for Persons formulation, however, seems different. It emphasizes the dignity, the preciousness, the nearly sacred worth o f the human person—a value that Kant sometimes refers to as absolute or infinite. This formulation thereby produces a rhetoric o f values that may seem worth living and sacrificing (even dying) for. The Respect for Persons formulation also, in my judgment, is needed to give moral power to the above idea o f Universal Law. What is irrational about acting in a non-universalizable way (e.g., making a false promise) is that such action would allow some persons to claim liberties for themselves that could not be extended to all persons. But why is this irrational? D o w e not often and quite rationally draw preferential distinctions between objects (e.g., my preference for single malt Scotch whisky over all others)? O f course we do, but only in cases where there are some relevant differences between the objects. If the objects are (in some relevant sense) equal in nature and value, it is irrational (it violates, as I argue in Murphy 1970, the Principle o f Sufficient Reason) to prefer one over the others. Thus the Universal Law formulation rests upon the assumption that each human being is, from the moral point o f view, o f equal worth—which each surely will be i f each is o f absolute worth. (This would also hold, o f course, i f human beings were equal in the sense o f all being worthless. That Kant goes for more than this shows that he is interested in presenting a positive picture o f the sanctity of persons and not merely in providing any picture that will allow the Universal Law formulation to yield the right results.) The idea that each separate and unique human being is to be cherished simply because he or she is such a being—an idea at least partially captured in the Kantian concept o f dignity—is, in my view, the idea that is really basic in Kant. AH else—the

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doctrines o f universalizability, the kingdom o f ends, the concepts o f rights and justice—is to be understood in terms o f this one central moral vision—a vision which, according to Leszek Kolakowski (Kolakowski 1990) answers for the contemporary world the question " W h y d o w e need Kant?" 4. D E C E N C Y A G A I N If the basic idea in Kantianism is the idea of respecting the dignity of persons, then the idea that the most important moral requirements may demand more than that w e avoid rights violations may have a place in a (broadly conceived) Kantian outlook as well. I f I am confronted with a precious object—an object of sacred or absolute value—then a full appreciation o f this object surely requires more than that I not harm it. It surely also requires that I seek to preserve it—not merely from other attempts to harm it but from circumstances o f fortune that I can (with non-heroic steps) correct. Consider a valuable object o f art—a Rembrandt painting, say. Recognizing its value does indeed require that I not damage it and that I take certain steps to prevent others from damaging it. But it surely also requires that I take it in out o f the rain. If I d o not when I could have done so without heroic sacrifice, you will surely and quite properly doubt that I genuinely value it in the proper way. So too—and a fortiori—for an object o f even greater value than a Rembrandt painting—e.g., when an object o f infinitely precious value—a human being—is out in the rain. Saying this does not, o f course, require our saying that either the painting or the person has a right to be saved and sheltered. On the other hand, a theory o f rights built on this value might well analyze the concept o f a right in such a way that rights could be claimed here—i.e., we might analyze a right as any guarantee, either positive or negative, that would be accorded to persons on the best theory about the sanctity of persons. (John Rawls's theory o f justice can be read in this way, but that is another story.) None o f this, o f course, entails that it is always justified to intervene—either domestically or internationally—to alleviate suffering. ( O f course, it is not always right to intervene to protect rights either.) One has to do careful cost/benefit analyses and must make sure that other important values are not being compromised. This will require complex thought and investigation— much o f it empirical. (Though one deeply hopes otherwise, it is possible that by the time o f the Congress the intervention in Somalia will

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be seen as having produced more harm than good--thereby showing perhaps that the proper weighing o f values was not done prior to that intervention.) M y point—a nonempirical one—is simply this: It is a mistake, on a Respect for Persons theory, to think that using coercion to relieve suffering is in principle always less justified or legitimate than using coercion to protect negative rights. Although this goes against much o f Kant's official theory in the Rechtslehre, it is—I have argued—consistent with what is most profound and basic in his moral theory. And Kant himself sometimes explicitly embraces this richer vision— e.g., when he suggests, in the Doctrine of Virtue, that my fully valuing another human being involves (in some sense) making his or her ends my own. 5. S O M E C L O S I N G R U M I N A T I O N S ON RESPECT F O R PERSONS I have argued above that Respect for Persons—based on the dignity or sanctity o f each human being—is the truly profound idea at the core o f Kant's moral theory. In closing, however, I want to suggest two problems with Kant's own understanding o f this idea. First, I want to suggest that Kant tends to give an overly rationalistic and moralistic account o f what it is about persons that gives them dignity. Second, I want to suggest that Kant's claims about the dignity o f persons probably cannot (Kant's own hopes and beliefs to the contrary) be utterly divorced from a theological or religious view o f the universe and the place o f persons in that universe. Kant is unwilling simply to assert that human beings have dignity. Rather he believes he must argue for this—attempting to show that human beings have dignity because they possess some property that is self-evidently precious. H e calls this property autonomy. Although Kant sometimes gives a metaphysically controversial account o f autonomy (as contra-causal freedom), he often uses the term to mean simply this: the ability to appreciate moral reasons and moral arguments and to be motivated by such reasons and arguments. On this view, human beings are valued because they are (morally) rational beings. Although moral rationality (moral autonomy) is no doubt an important attribute in determining moral significance, it does seem to leave out many beings that some might wish to include in the realm o f moral respect: fetuses, the severely retarded, the senile, etc. I also suspect that many o f the inhabitants o f Somalia and various pockets o f poverty and

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discrimination in America—all requiring treatment with the equal concern and respect appropriate to all human beings—do not manifest anything that Kant would recognize as moral autonomy. Moral autonomy is in part an historical and cultural achievement—not just an individual attribute—and it is perhaps dependent, in ways that Kant did not appreciate, upon certain levels o f material wellbeing and respectful treatment. ( M i l l ' s famous comment in On Liberty was prophetic with respect to L o s Angeles: " A n y society that lets any number o f its citizens grow up as mere children has only itself to blame for the consequences.") Even with respect to normal, competent, materially secure adults, however, moral capacity alone does not (at least to my mind) capture all that is precious about them. For example: I have never felt more deeply the moral horror o f the Holocaust than when I read o f the murder (at Babi Y a r ) o f the central character in D. M . Thomas's marvelous novel The White Hotel. So much that was wonderful and precious was lost in the death o f this woman (a fictional representative o f all the victims o f that atrocity), and not all o f it is (in my v i e w ) to be captured in some ideal o f moral autonomy. Her feelings, her eroticism, even her neuroses seemed rich and important parts o f her humanity—something that a Kantian tendency to overmoralize all value perhaps would tempt us to miss. Kant, o f course, does not claim that we should regard as precious only those human beings we find admirable or lovable. Following in the path o f Christianity's moral egalitarianism, Kant maintains (in spite o f the seeming implications o f his emphasis on autonomy) that alt human beings are to be regarded as possessing that sacred value he calls dignity. All human beings are to be treated with equal concern and respect simply because they are human beings. But how, on a purely secular and empirical basis, could it be anything but silly to hold such a view? Our experience o f human beings presents, at best, a mixed bag. Every Mother Teresa can be matched with a Hitler, and we know—simply by reading the newspaper—how unspeakably vile (unjust and unloving) the members o f our species are capable o f being. At this very moment, all over the world, helpless people are being tortured, or raped, or killed, or starved by other members o f their species. If w e are honest with ourselves (imagining ourselves possessed o f Gyges's Ring perhaps), each one o f us must also acknowledge the potential within ourselves for great evil. (Kant showed his own awareness o f human evil in his Religion Within the Limits of Reason Alone.) Thus the preciousness o f each human being can in no sense be a reasonable inductive generalization

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from the evidence that actual humanity—in the person o f ourselves or others—presents to us. Why, then, believe in it? It seems to me that such a belief can only be regarded as an act of faith. This faith might be a faith in the proposition itself ("Appearances to the contrary, all human beings have absolute value") but more likely in some background view - religious in nature—in which the proposition is located. Perhaps all persons are properly regarded as precious because they are created in the image o f G o d or simply because God has commanded us to so regard them. Kant believed that certain moral claims require for their satisfaction the postulation o f the existence o f God—as what he called a "postulate o f practical reason". Kant believed, for example, that a moral and rational person would find it unacceptable that the summum bonum —a just apportioning o f happiness and virtue—might remain eternally unrealized. Given that no finite human being is capable o f attaining such a summum bonum, Kant maintained that a moral person would be rational in postulating (though not in claiming to know o f ) the existence o f a supreme b e i n g — G o d — t o bring this morally important state o f affairs about. Kant's own intention was to place radical limits on the appeal to such "rational faith". M y own hunch, however, is that such faith may not be permitted simply at the margins o f moral belief but may be required to maintain the very core o f Kant's moral vision: the infinite worth o f each human being. 1

Thefinalpart ofthispaper was influenced by Peter Geach's essay "The Moral Law and the Law of God" (in Geach 1969) and by an unpublished paper on Kierkegaard by Professor Philip L. Quinn of the University of Notre Dame. I hope that these authors would not find their ideas distorted in the use to which I have put them. 1

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References Geach, Peter (1969), God and the Soul, London. Kolakowski, Leszek (1990), Modernity on Endless Trial, Chicago. Murphy, Jeffrie G. (1970), Kant: The Philosophy of Right, London. Thomson, Judith Jarvis (1986), Rights. Restitution and Risk, Cambridge (Mass.).

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COGNITIVE AND MORAL OBSTACLES TO IMPUTATION How to imagine other people's lives when our own seems scarcely conceivable? E. M . Cioran 1. I N T R O D U C T I O N

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The imputation o f responsibility can be a grave matter When w e engage in the activity o f imputation we often d o so, not merely to satisfy intellectual curiosity or otherwise to amuse ourselves, but rather to set in motion powerful institutional and psychological mechanisms—mechanisms o f blame and condemnation, o f stigmatization and ostracism, o f resentment and hatred, and—in the l a w — o f such coercive state responses as criminal punishment. Judgments o f responsibility can devastate the lives o f those to whom they are directed, and can tempt those w h o make them to g i v e vent to some o f the basest passions within their own personalities.

Small wonder, then, that

Nietzsche warned us to "mistrust all those in whom the impulse to punish is powerful."

2

This paper was prepared for presentation at the symposium "Imputation of Conduct in Law and Ethics" held at the Institut fur Strafrecht und Rechtsphilosophie at Universitat Erlangen-Numberg, Germany, in October 1993, The philosophical background for this paper may be found in some o f my previous work: Forgiveness and Mercy (with Jean Hampton, Cambridge: Cambridge University Press, 1988) and several of the essays reprinted in my Retribution Reconsidered; More Essays in the Philosophy of Law, Dordrecht: Kluwer, 1992—particularly "Getting Even: The Role of the Victim" (originally in Social Philosophy and Policy, Volume 7, Number 2, Spring 1990) and "Does Kant Have a Theory of Punishment?" (originally in Columbia Law Review, Volume 87, Number 3, April 1987), l

Zarathustra, p. 212 of the Walter Kaufmann translation in The Portable Nietzsche (New York: Viking Press, 1954). Professor Joachim Hruschka has noted that the word "imputation" sometimes has a neutral meaning. In my paper, I will be concerned with the term's non-neutral use—a use that functions primarily to attribute responsibility and blame for wrongdoing or harmful consequences. I will be particularly interested in imputation where criminal punishment is at stake. Imputation is a human activity that docs not stand alone but is driven by values and purposes—even by philosophical theories. Imputation even in the sense of saying "this is his deed" should always provoke the question "And which o f many possible purposes are you pursuing in ascribing deeds to people?" For a rich discussion of various senses and levels of imputation, see Joachim Hruschka, "Imputation," 2

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Character, Liberty, and L a w M o s t o f the philosophical literature o n the imputation o f responsibility has

focused upon the attributes that ought to b e present in the agent b e f o r e responsibility is imputed t o h i m — e . g . , voluntary control o f b o d i l y m o v e ments, causal connection to resulting harm, intention t o cause harm, and perhaps e v e n metaphysical freedom o f the w i l l . A matter o f equal importance, h o w e v e r , has r e c e i v e d c o m p a r a t i v e l y little philosophical attention: the attributes that ought to be present, not in the agent, but in the o n e w h o imputes responsibility (the

imputer)—attributes

that make his attribution legitimate or at least not illegitimate.

Kant, o f

course, w a s sensitive t o such matters, and as early as the Lectures on Ethics h e m a d e the f o l l o w i n g c l a i m : As pragmatic lawgiver and judge man must give due consideration to the infirmitas and fragilitas of his fellows and remember that they are all human . . . We can judge all men: each o f us can judge; but we cannot enforce our judgments, for our imputatio is not valido; it has no authority to bring into effect any consequences a lege determinata} O n e point here b e i n g made b y Kant is surely n o n c o n t r o v e r s i a l — n a m e l y , that o n e ' s imputations w i l l lack b i n d i n g legal force unless o n e is a l e g a l l y authorized official. S i m p l y as Murphy I can impute responsibility as I s e e fit, but only as Judge M u r p h y ( w e r e I to hold such an o f f i c e ) could I impute it in a l e g a l l y o p e r a t i v e w a y . T h i s point is o b v i o u s t o the point o f b o r e d o m . D e e p e r and more controversial points may be lurking beneath the surface o f this passage, h o w e v e r - - p o i n t s brought out b y Kant in passages such as

these from the first Critique and from Religion Within the Limits of Reason

Alone, the final passage rivaling Nietzsche in its passion and in the profundity o f its p s y c h o l o g i c a l insight: The real morality of actions, their merit or guilt, even that of our own conduct, . . . remains entirely hidden from us. Our imputations can refer only to the empirical character. How much of this character is ascribable to the pure effect of freedom, how much to mere nature, that is. to faults of temperament for which there is no responsibil-

Brigham Young University Law Review, 1986, pp. 669-710. Lectures on Ethics, trans. Louis Infield (New York: Harper and Row, 1963) pp. 68-78.

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ity, or to its happy constitution (merito fortunae), can never be determined; and upon it therefore no perfectly just judgments can be passed. We call a man evil, however, not because he performs actions that are evil (contrary to law) but because these actions are of such a nature that we may infer from them the presence in him o f evil maxims. In and through experience we can observe actions contrary to law, and we can observe (at least in ourselves) that they are performed in the consciousness that they are unlawful; but a man's maxims, sometimes even his own, are not thus observable; consequently the judgment that the agent is an evil man cannot be made with certainty if grounded on experience. 4

5

[People] may picture themselves aS meritorious, feeling themselves guilty of no such offenses as they see others burdened with; nor do they ever inquire whether good luck should not have the credit, or whether by reason o f the cast of mind which they could discover, if they only would, in their own inmost nature, they would not have practiced similar vices, had not inability, temperament, training, and circumstances of time and place which serve to tempi one (matters which are not imputable), kept them out o f the way of these vices. This dishonesty, by which we humbug ourselves and which thwarts the establishing of a true moral disposition in us, extends itself outwardly also to falsehood and deception of others. If this is not to be termed wickedness, it at least deserves the name of worthlessness, and is an element in the radical evil o f human nature, which (inasmuch as it puts out of tune the moral capacity to judge what a man is to be taken for, and renders wholly uncertain both internal and external attribution of responsibility) constitutes the foul taint of our race. 6

In these passages Kant seems to be raising both cognitive and moral obstacles to the legitimacy o f imputing responsibility to others (and perhaps

even to ourselves) I f there are "rules" that legitimate imputation, then these rules are addressed to those who would serve (either officially or unofficially) as j u d g e o v e r the conduct o f others. But these passages from Kant seem to force the question " W h o are w e to j u d g e ? " Do w e know enough to occupy 7

Critique of Pure Reason, trans. Norman Kemp Smith (London: Macmillan, 1933) A551/B579. Religion Within the Limits of Reason Alone, trans. T. M. Greene and Hoyt H. Hudson (New York: Harper, 1960) p. 16. Supra note 5, pp. 33-34. See also Metaphysics of Morals, 228. "[T]he rules o f imputation are addressed exclusively to the judge. He alone can ask whether an event is a deed to which be can apply the law, and whether an act evaluated as supererogatory or contrary to duty is deserving o f merit or d e m e r i t , . . A judge who can apply a law and nuke judgments of imputation need not he a public officer, but can be anyone who "judges" an event to be a possible deed." Hruschka, supra note 2, p. 681, text and note 44. 4

5

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this role without gross negligence and error?

Are w e virtuous enough to

occupy this role without hypocrisy? (John 8; 3-9: " H e that is without sin among you, let him first cast a stone at her.") 2. R E T R I B U T I V E

IMPUTATION

In the remainder o f this essay I want to make a start toward coming to terms with these obstacles or challenges to the legitimacy o f imputation.

In

particular, I want to consider these challenges in the area where they seem most worrisome: retributive punishment. There arc perhaps good reasons why w e might not feel obligated to make overly burdensome epistemological and moral demands upon ourselves with respect to our judgments o f imputation when all that is at stake is the payment o f compensation (for the efficient allocation o f loss) or even punishment for the utilitarian end o f crime control. However, when w e set out to punish on retributive grounds (at least on some versions o f retributivism) w e are branding people as objectively evil (not merely as probably dangerous) and are claiming to g i v e them what they deserve—perhaps a level o f suffering, to use Kant's language, that is properly proportional to their "inner wickedness" (inneren Bosartigkeit)

8

T o feel

Rechtslehre 333 (The Metaphysics of Morals, trans, Mary Gregor, Cambridge: Cambridge University Press, 1991, p. 142). In many American states, capital murder's mens rea requirement of "malice aforethought" may be implied from recklessness if a killer is said to have the mental state or character defect variously characterized as "an abandoned and wicked heart," "a depraved heart," "a depraved mind," "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty," "wickedness of heart or cruelty," or (in the Model Penal Code) "extreme indifference to the value o f human life." See generally Joshua Dressier, Understanding Criminal Law, New York: Matthew Render, 1987, p. 461. Even when a concern with inner wickedness does not find its way into the definition of the crime, it often arises dramatically when character is considered for purposes o f criminal sentencing. Prosecuting attorneys, of course, will also attempt to nudge juries toward conviction by attempting to convince them that the defendant is a very wicked person. As will be discussed in more detail later, there are versions o f retributivism (some also to be found in Kant) that do not require an exploration o f inner wickedness. 8

On the claim that retributivism requires a concept o f objective evil, see John Mackie "Retributivism: A Test Case for Ethical Objectivity" in The Philosophy of Law, ed. Joel Feinberg and Hyman Gross, Belmont; Wadsworth Publishing Company, 1991, pp. 677-684. A Kantian view of evil or wickedness will place great emphasis on free choice, but other

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comfortable in making such a judgment is to presume a great deal, and the cognitive and moral obstacles discussed above may be viewed as attempts to show that our presumptions are not justified—that retributivism as a theory of punishment tempts weak and flawed people into the hubris o f playing G o d — a role for which, given their radical limitations, they are monumentally ill-suited. I f this is correct, then we would perhaps be acting immorally in punishing on retributive grounds even i f (from the agent's point o f v i e w ) our retributive judgments sometimes turned out to be exactly right—i.e. did indeed punish the agent exactly as he deserved to be punished. This would simply be a matter o f our luck, not of our virtue. These are profound worries, and I can hope only to make a small start toward addressing them here. The quoted insights o f Kant and Jesus should make us uncomfortable about any easy smugness with respect to our punitive practices (particularly if retributively grounded), and w e should certainly keep in mind Nietzsche's caution that those who fight with monsters often become monsters. On the other hand, there really are monsters in the world and we do sometimes have to fight with them, and thus we must be careful that these insights are not used to support easy smugness of another sort: a cheap sentimentality about crime and criminals, and a resulting tendency to see them only as objects o f pity and forgiveness. ( I f w e do not know enough to give them their just level o f deserved suffering, w e probably do not know enough to pity or forgive them either.) It is, o f course, part of the nature of Nietzsche's genius that he can be maliciously insightful on both sides o f a question; and, having portrayed those who favor retributive punishment as psychopathological, he then has an equally scornful diagnosis to offer for those humanitarians who would work for its abolition: There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly. Punishing somehow seems unfair to it, and it is certain that imagining "punishment" and "being obligated to punish" hurts it, arouses fear in it. "Is it not enough to render him undangerous? Why still punish? Punishing itself is

accounts are possible. Consider, for example, Herman Melville's use of the concept of "natural depravity" in Billy Budd in order to describe the evil of the character John Claggart.

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terrible." With this question, herd morality, the morality of timidity, draws its ultimate consequence. 9

There are, o f course, Kantian as well as Nietzschean reasons for hoping that obstacles to the imputation of responsibility can, to at least some degree, be overcome. For i f w e are never justified in imputing responsibility to people in some deep (i.e., non-utilitarian) sense, then neither (perhaps) will w e be justified in regarding them as creatures o f dignity and as bearers of rights in the full Kantian (i.e., ends in themselves) sense. Thus much may be at stake in this issue. 3. C O G N I T I V E O B S T A C L E S T O RETRIBUTIVE IMPUTATION There are at least two failures o f knowledge that could undermine our imputations—failures of knowledge about the correct moral or legal principles at stake in the issue, or failures o f knowledge about the relevant characteristics o f the agent (to whom w e impute responsibility) or his circumstances. I am primarily interested in failures o f the second kind, but let me give one illustration o f a failure o f the first sort. In his famous essay " O n a Supposed Right to Lie From Altruistic Motives," Kant claims that all bad consequences of a lie (any lie—regardless o f its purpose) may be imputed to the liar—even i f those consequences were not foreseeable. This is perhaps a reasonable view for one who agrees with Kant that the principle " D o not l i e " is an absolute moral command. But one might, o f course, think that Kant is simply wrong about the correct moral principle that governs lying and truth-telling. One might, for example, be a Rawlsian and regard the correct principle about lying and truth-telling to be one that would be chosen by rational beings in a suitably constrained idealized position and might believe that such beings would agree on a principle that would permit lies under certain circumstances. One would then, of course, have to regard some Kantian imputations o f bad consequences to liars as unjust—an injustice flowing from a lack o f knowledge o f the correct moral principle about lying and truth-telling.

Beyond Good and Evil, trans. Walter Kaufmann, New York: Vintage. 1966, p. 114. with modification. 9

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A s important as these failures o f knowledge may be in undermining the legitimacy o f our imputations, I am interested in cognitive failures o f a different sort: a possible inability to know whether the agent to whom w e are imputing responsibility really possesses the features (e.g., "inner wickedness") that our moral or legal doctrines make relevant. Some features, o f course, pose fewer cognitive obstacles than others. I f w e are interested in imputating responsibility o f a purely causal kind (as in " T h e slippery pavement was responsible for the accident"), then it would seem—if w e can have any knowledge o f the external world at a l l — w e should often be in a position to make such judgments with confidence. Judgments o f moral and criminal responsibility, however, are typically not purely causal in nature. In this domain, we typically require—in addition to causal responsibility—a determination o f relevant mental states or character defects. A murderer, for example, is not merely a person who causes a death but is one w h o causes that death with malice aforethought. W h y d o w e care about such matters o f inner life and character? Again, this depends upon our general moral theory and our theory o f punishment and responsibility. A n Aristotelian will care about character as a set o f traits and dispositions that qualify one as fit for community membership, citizenship, and such virtuous roles as that o f friend. (That Aristotle holds this theory o f character explains, I think, why his account o f responsibility considers only factual ignorance and external compulsion and does not worry much about the metaphysical issues o f freewill and determinism. A l l that matters is if one is in fact suited to one's role--not that one had full control over one's suitability.) So too for certain utilitarian accounts o f punishment and responsibility, where all that one will care about is knowing enough about the agent's character to make reasonably reliable predictions about his dangerousness or deterability. Judgments o f this sort can never be made with certainty, o f course, but there do not seem to be any special obstacles to knowledge here. The situation becomes quite different, however, when w e begin to care about character in the much deeper sense that seems to be required for some strong versions o f the retributive theory o f punishment—e.g., a version that would attempt to match punishment to what Kant calls "inner wickedness." Unlike Aristotle, whose concern with responsibility seems mainly provoked by an interest in a person's fittingness for a social role, Kant sometimes seems to have as his model for responsibility some notion o f a judgment o f

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ultimate or final worth rather like the one that God might employ at the Last Judgment. W e might well wonder, o f course, why the state (especially the liberal secular state) should concern itself at all with punishing in accord with inner wickedness. Even i f we decide that it is not wrong in principle for the state to pursue such an objective, however, we might well wonder how the state—limited to empirical means—is going to attain it. For w e face here the formidable epistemological problem that philosophers call "the problem o f other minds" and perhaps even deep metaphysical worries about freewill and determinism. It is hard enough—given human capacity for self-deception—to be very certain o f one's own motives and fundamental desires; and there are staggering obstacles in the way o f our making such judgments about others. 10

11

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Kant's own theory o f imputation and desert, placing so much weight upon the noumenal self that is unknowable through any empirical means (the only ones w e have, alas), faces this problem in a particularly dramatic way. A n y theory that places heavy weight on the inner life in determining desert, however, will face the problem to some non-trivial degree. Even the attribution o f such familiar (from the American Model Penal C o d e ) mens rea conditions as purpose or recklessness faces serious cognitive problems—e.g., an analysis o f these terms that would make their attribution reliable (e.g., a behaviorist analysis) would probably not yield a rich enough concept o f inner wickedness or desert whereas an analysis that might be sufficiently rich (e.g., a Cartesian analysis) would make the attribution o f these conditions highly uncertain. 13

Kant does not consistently embrace such a strong retributivist view. Sometimes, indeed, he seems not to be a retributivist at all in his accounts of punishment. See my "Does Kant Have a Theory of Punishment?", supra note 1. 10

See my essay "Retributivism, Moral Education and the Liberal State," reprinted in Retribution Reconsidered, supra note I (originally in Criminal Justice Ethics, Volume 4, Number 1, Winter / Spring 1985). Any one of Freud's case studies—e.g.. Lucy R.—will serve as a clear illustration of this point 11

12

Kant's theory is a good example to illustrate the dilemma. If we claim that responsibility is a property of the noumenal self we preserve a strong sense of desert because the noumenal self is (according to Kant) metaphysically free. The noumenal self, however, cannot be known through empirical means—e.g., observation of behavior. W e can get around this cognitive problem by claiming that responsibility is a property of the empirical 13

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It seems to me that these epistemological problems cannot, in justice, simply be ignored. I f w e really do not have the knowledge required to impute deep character defects (e.g., a hardened, wicked and abandoned heart) to others with any degree o f reliability, then w e act recklessly in inflicting misery on people as the suffering they deserve for their inner wickedness. What, then, are we to do? W e could attempt a Thomas Nagel strategy and return to our strong retributive practices with a certain sense o f irony and detachment. This probably would not work, however, since the emotions required for strong retributivism are probably not consistent with irony and detachment. W e could also adopt an essentially consequentialist theory o f punishment, perhaps with some deontological side constraints—e.g., the negative retributive side constraint that w e not punish anyone to a degree greater than he deserves. This will only work, o f course, i f w e can analyze the concept o f desert in such a way that it does not raise all the same problems noted above—e.g., "punish him no more than he deserves" had better not mean "punish him no more than demanded by his inner wickedness." 14

Perhaps the most promising prospect is to seek a weaker or more modest version of retributivism—one whose epistemological and metaphysical commitments are less deep. W e could, for example, employ Herbert Morris's justification of criminal punishment—the claim that the criminal, as a

self But the empirical self is (according to Kant) subject to causal determination, and this would seem to spell the end of any strong sense of desert. Any attempt to link up the two selves in a common theory would, of course, face the classic problems of interactionism familiar from the debates over Cartesian dualism. These problems might be overcome, but we are currently in no position to justify cheerful optimism that we really know what we are doing here. For a careful and insightful exploration of these various issues—one from which I have learned a great deal—see Rebecca Dresser, "Culpability and Other Minds," Law & Southern California Interdisciplinary Law Journal, Volume 2, Number 1, Spring 1993, pp. 41-88. In addition to providing a useful survey of the history and nature of the role played by the inner life in criminal culpability in England and America, Dresser also presents powerful skeptical arguments against its present role. Although I cannot pursue the matter here, it is possible (as my colleague Michael White has suggested) that attributions of desert in a deep Kantian sense might involve conceptual as well as cognitive obstacles. The concept of inner wickedness might involve a notion of the self (or true self) that is incoherent. See Thomas Nagel's " T h e Absurd" in his Mortal Questions, Oxford: Oxford University Press, 1979, and his The View from Nowhere, Oxford: Oxford University Press, 1986. l4

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freerider on a mutually beneficial scheme o f social cooperation, must be punished in order to annul the unfair advantage his wrongful failure to exercise self-restraint has given him over those citizens w h o have been lawabiding.

Although this theory does not involve deep notions o f inner

wickedness, it may still properly be called retributive because it is a nonconsequentialist theory o f punishment that bases the justification o f punishment on considerations o f justice or fairness. (Freeriders violate a duty o f fair play to those who have given the law their voluntary compliance.) Some notion o f desert is also captured—e.g., according to Morris, the criminal has a right to punishment and owes it as a debt to his fellow citizens.

15

This theory would also require some consideration o f states o f

mind and character (e.g., freeriding is an intentional act) but ones that, given the less deeply retributive purpose o f the practice in which the consideration will arise, will probably stretch our cognitive powers to a much less worrisome degree.

Unfortunately, however, this theory may face seri-

ous—and perhaps fatal—problems o f a different nature.

16

Herbert Morris, "Persons and Punishment," The Monist, Volume 52, Number 4, pp. 475-501 (1968). In my Kant: The Philosophy of Right (London: Macmillan, 1970) I was inclined to attribute this version of retributivism to Kant, As I note in my recent "Does Kant Have a Theory of Punishment?" (supra note 1), however, I am now much less confident that such an attribution can be defended as consistent with the text. For example: How are we to use this version of retributivism to grade criminal offenses on a scale o f seriousness? It does not seem that murder (clearly more serious than theft) is more unfair than theft. And if the criminal owes us a debt solely because we have exercised self-restraint whereas he has not, then his punishment would have to be a function of how difficult it was for us to obey the law (i.e., how great a burden we found our own selfrestraint). But this might produce a highly unpredictable and bizarre ranking of criminal offenses. Most of us who are normal and well brought up are probably not very tempted to murder or rape and are thus not aware of taking on much of a burden in refraining from these activities. The burden of self-restraint exercised here is, for most of us, far less than the burden we feel when paying our taxes. Do we then want to punish tax evasion as a more serious offense than murder or rape? Additional problems for Morris's view are generated by Robert Nozick's critique of The Principle of Fairness itself in Anarchy, State and Utopia, New York: Basic Books, 1974, and perhaps by my argument that, given the radical inequality of benefits in actual societies, the Principle of Fairness will not impose upon all citizens equal obligations of obedience to law. On this see my essay "Marxism and Retribution" in Philosophy and Public Affairs, Volume 2. Number 3, Spring 1973, and reprinted in my collection of essays Retribution, Justice and Therapy, Dordrecht: Reidel, 1979. 15

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T o summarize: Even though the necessities of maintaining civilized life and schemes of just cooperation require that we sometimes make and act on our best judgments o f wrongdoing and criminal responsibility (that w e have trials and jails, in short), we should be very cautious about overdramatizing and overmoralizing what we must (regretfully) do here by portraying it as some righteous cosmic drama—as a holy war against ultimate sin and evil. Such a view would, among other things, tempt us to dangerous excesses—excesses that would harm others through our unjust treatment o f them and harm us through our own corruption—as one is always corrupted when one would presume to occupy a role best reserved for the gods. A s mere humans, it is perhaps better for us to admit that we are not totally clear about what w e are up to here. 4. M O R A L O B S T A C L E S T O RETRIBUTIVE IMPUTATION There are at least two ways in which retributive judgments might seem inappropriate (unvirtuous, not necessarily mistaken) because o f moral failings in the person who makes them. First, they could involve the vice of hypocrisy—our demanding that others receive their just deserts when w e ourselves are no better. ( I take it that Jesus's "let him that is without sin" remark is an attempt to identify the hypocrisy in at least some acts of

What other versions of retributivism are possible? If we make the punishment a function of the harm actually done, then we move away from any form of retributivism that could in any sense be called Kantian in nature. It might, however, be worth exploring other aspects of Kant's general discussion of law and punishment. One could argue that the necessity of punishment for violation is logically contained in the concept of law itself (see Herbert Fingarette's "Punishment and Suffering," Proceedings of the American Philosophical Association, Volume 50, 1977. pp. 499-525) or that, the state having promised punishment and given fair warning, justice requires the infliction of punishment for violation even if the purpose of the state's promise was deterrence (see B. Sharon Byrd, "Kant's Theory o f Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy, Vol. 8, No. 2. 1989, pp. 151-200). In its weakest and least controversial form, of course, retributivism is simply the view that only the legally guilty should be punished (i.e., it is absolutely wrong ever to punish the legally innocent). This version o f retributivism can be given a plausible rule-utilitarian defense—e.g., see John Rawls's " T w o Concepts of Rules," The Philosophical Review, Volume 64, 1955, pp. 3-32.

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punishment.) Second, retributive judgments could be seen as necessarily being motivated by such base passions as envy, malicious hatred, and spite—passions included by Nietzsche under the term ressentiment. I will consider each o f these obstacles briefly. Michael Moore attempts to make short work o f Jesus's "let him that is without sin" remark—calling it "pretty clumsy moral philosophy." He writes: It is true that all of us are guilty of some immoralities, probably on a daily basis. Yet for most people reading this essay, the immoralities in question are things like manipulating others unfairly; not caring deeply enough about another's suffering; not being charitable for the limitations of others; convenient lies; and so forth. Few o f us have raped and murdered a woman, drowned her three small children, and felt no remorse about it. 11

Moore's point seems to be this: In the relevant sense most o f us are without sin, and so w e might as well feel free to pick up some stones and cast away. Is this an adequate answer to Jesus and to the passage quoted earlier from Kant's Religion? I think not. The response is too shallow, for it fails to reflect the kind o f serious moral introspection that Jesus and Kant are attempting to provoke. The point is not to deny that many people lead lives that are both legally and morally correct. The point is rather to force such people to face honestly the question of why they have lived in such a way. Is it (as they would no doubt like to think) because their inner characters manifest true integrity and are thus morally superior to those people whose behavior has been less exemplary? Or is it, at least in part, a matter o f what John Rawls has called "luck on the natural and social lottery"? Perhaps, as Kant suggests, their favored upbringing and social circumstances, or the fact that they have never been placed in situations where they have been similarly tempted, or their fear o f being found out has had considerably more to do with their compliance with the rules o f law and morality than they would like to admit. Perhaps if they imagined themselves possessed o f Gyges's ring (a ring which, in Plato's myth in Republic, makes its wearer invisible), they might—if honest with themselves—have to admit that they would probably use the ring, not to perform anonymous acts o f charity, but to perform some acts o f considerable evil—acts comparable, perhaps, to the acts for which

Michael Moore. "The Moral Worth of Retribution." in Responsibility. Character and the Emotions, ed. Ferdinand Schoeman, Cambridge University Press, 1987, p. 188. 17

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they often seek the punishment of others. If they follow through honestly on this process o f self-examination, they (like Angelo in Measure for Measure) will have discovered the potential for evil within themselves and will have learned an important lesson in moral humility. 18

Such humility, o f course, need not involve the utter abandonment o f retributive judgments or of beliefs in freedom and responsibility. ( W e should not replace a smug and hasty hatred of criminals with an equally smug and hasty—and insulting—judgment that they arc all helpless victims.) The effect o f such humility should rather be the introduction o f greater care and uncertainty into our retributive practices—making us tentative retributivists rather than supremely self-confident retributivists—and should prompt empathetic inquiry into the actual characters and life circumstances faced by criminal defendants before w e pronounce on what they deserve. This demand for individuation is a demand of justice and is thus not merely consistent with but should be required by retributivism as a theory of punishment, Kant writes as follows: 19

Subjectively, the degree to which an action can be imputed (imputabilitas) has to be assessed by the magnitude of the obstacles that had to be overcome. The greater the natural obstacles (of sensibility) and the less the moral obstacle (of duty), so much the more merit is to be accounted for a good deed, as when, for example, at considerable self-sacrifice I rescue a complete stranger from great distress. On the other hand, the less the natural obstacles and the greater the obstacles from grounds of duty, so much the more is a transgression to be imputed (as culpable). Hence, the state of mind of the subject, whether he committed the deed in a state o f agitation or with cool deliberation, makes a difference in imputation, which has results. 20

See Walt Whitman's poem "You Felons on Trial in Courts." Saying of himself "beneath this face that appears so impassive hell's tides continually run," he concludes the poem thus: "And henceforth I will not deny them--for how can I deny myself?" 18

In Chapter 5 o f Forgiveness and Mercy (supra note 1) I have argued that empathetic individuation is a demand of justice. See also the rich discussion in Martha C. Nussbaum, "Equity and Mercy," Philosophy and Public Affairs, Volume 22, Number 2, Spring 1993, pp. 83-125. Rechtslehre, 228 (Gregor, pp. 53-54). As this passage makes clear, proper retributive individuation will require close inquiry into mental states and will thus encounter all the problems noted in the previous section of the paper. For a very controversial but also very stimulating attempt to see how far we can legitimately carry the line of thinking that tics criminal responsibility to a highly individuated inquiry into the circumstances of the l9

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Let me now close by considering briefly the Nietzschean challenge to retributive imputation: the claim that those who engage in the activity are unvirtuous (even i f not mistaken) because they are all motivated by the base passion o f ressentiment. There are two ways in which one might attempt to meet this challenge. One could agree that punishment is indeed so motivated but argue that, contrary to Nietzsche's claim, some forms o f this motive are healthy and morally acceptable. I took this line in my chapters in the book Forgiveness and Mercy with respect to the passions o f resentment and hatred, and I will not repeat my arguments here. 21

Another line o f attack is suggested by Michael Moore. Moore suggests that the desire to give people their retributive just deserts is often prompted, not by the base passion of ressentiment, but rather by the valuable passion o f 22

guilt: Rather than succumbing to . . . elitism masquerading as egalitarianism [in thinking that we are responsible but that criminals are not], we should ask ourselves what [the criminal] deserves by asking what we would deserve had we done such an act. In answering this question we should listen to our guilt feelings, feelings whose epistemic import is not in question in the same way as are those of ressentiment. Such guilt feelings should tell us that to do an act like [that of a vicious murderer] is to forfeit forever any lighthearted idea of going on as before. One should feel so awful that the idea of again leading a life unchanged from before, with the same goals and hopes and happiness, should appear revoltingly incomprehensible. 21

This simply will not work. Although guilt may not have its epistemic import challenged "in the same w a y " as ressentiment, it still faces deep challenges. W e all know (even without reading Freud) that our guilts are

individual criminal defendant, see Richard Delgado. "Rotten Social Background: Should the Criminal Law Recognize a Defense o f Severe Environmental Deprivation?", 3 Law and Inequality 9 (1985). Forgiveness and Mercy by Jeffrie G. Murphy (Chapters 1, 3 and 5) and Jean Hampton (Chapters 2 and 4), supra note 1. Supra note 17. 21

22

Supra note 17. When Moore speaks of a feeling's "epistemic import," he refers to its tendency to point us toward a correct moral judgment. In his view, ressentiment does not so point whereas guilt docs. 23

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often neurotic and misplaced and irrational, and thus it is hard to see how any useful or fair idea o f what others deserve can be generated merely by projecting from our own imagined feelings o f guilt. Given a certain sort o f upbringing and consequent neurotic or simply narrow personality, for example, a person might use his own imagined guilts to demand very serious punishment for conduct that is (in my v i e w ) objectively

trivial—e.g.,

masturbation or homosexuality or romance outside a particular religious or ethnic or racial group. Should w e then project only from guilt feelings that are rational? But what will these be—those that are based on a proper idea o f wrongdoing and desert?

If so, then the whole enterprise is hopelessly

circular: we are using prior concepts o f evil and desert to decide which guilt feelings may be projected to yield an idea o f what others deserve. But i f w e already know what level o f suffering is deserved for certain evils, why not just give other people (and ourselves) that suffering and forget all talk about guilt and projections from it? 5. C O N C L U S I O N This has been a very preliminary discussion o f some extremely complex and profound issues, and I have been able to d o nothing more than set a general framework for the more detailed and lengthy discussion that is surely necessary. I have attempted, not to give grounds for rejecting retributivism as a theory o f punishment, but rather to generate some anxiety about it—an anxiety that it might never be possible fully to overcome. Thomas Nagel has argued that absurdity—a conflict between pretension and reality—occurs in human life when w e find that some practice to which w e are deeply committed (and perhaps cannot avoid) lacks adequate justification because it faces skeptical doubts that cannot be fully overcome. Perhaps our commitments to retributive values involve us in such absurdity.

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Supra note 14. Nagel. following in the footsteps of David Hume, finds absurdity in the seriousness with which humans pursue their projects coupled with the perpetual possibility of regarding everything about which they are serious as open to doubt. He sees a posture of ironic detachment as a natural response to absurdity, but the more mundane responses of caution and modesty also strike me as appropriate. See the final section, "Culpable Mental State Attribution—A Call for Modesty," in Dresser, supra note 13. 24

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REPENTANCE, PUNISHMENT, AND MERCY Prospero: ...At this hour Lies at my mercy all mine enemies. Ariel:...Your charm so strongly works 'cm. That if you now beheld them your affections Would become tender, Prospero: And mine shall Hast thou, which art but air, a touch, a feeling O f their afflictions, and shall not myself, One of their kind, that relish all as sharply Passion as they, be kindlier moved than thou art? Though with their high wrongs I am struck to the quick. Yet with my nobler reason, 'gainst my fury Do I take part: the rarer action is In virtue than in vengeance; they being penitent, The sole drift of my purpose doth extend Not a frown further.

1.

INTRODUCTION

These brief passages from the closing o f Shakespeare's The Tempest contain many profound but controversial thoughts about the nature and justification for mercy. Prospero realizes that mercy may be exercised only by someone who has power over another ("at my m e r c y " ) , sees mercy as particularly difficult for someone who has been wrongfully injured ("struck to the quick"), sees mercy as involving greater virtue than vengeance but seems to view even virtuous acts o f mercy as conditional; that is to say, as requiring some precondition that must be satisfied by the wrongdoer before the granting of mercy is appropriate. T w o such conditions are suggested: that the wrongdoer has gone through punishment or suffering sufficient to generate

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our compassion (the point raised by Ariel) or that the wrongdoer has become repentant (the point raised by Prospero),

1

The idea that repentance may open the door for mercy is a common theme in Christian thought—where it is perhaps in tension with the equally Christian idea that mercy is a free gift o f grace and is thus unconditioned

-and Shakespeare clearly writes within the context o f this theological

tradition.

2

Such ideas also find expression in contemporary secular culture,

however, and in T h e United States find themselves revealed in criminal sentencing, most dramatically when life imprisonment or capital punishment is a possibility. Sentencing judges or juries may be swayed by criminal defense lawyers who use the defendant's supposed repentance as a ground for mercy or (perhaps more likely) by prosecutors who use the lack o f such repentance as a ground for the refusal o f mercy and the imposition o f the harshest possible sentence. For example: As any trial attorney will attest, serious prejudice could result if medication inhibits the defendant's capacity to react and respond to the proceedings and to demonstrate remorse or compassion. The prejudice can be acute during the sentencing phase of the proceedings, when the sentencer must attempt to know the heart and mind o f the offender and judge his character, his contrition or its absence, and his future dangerousness. In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative o f whether the offender lives or dies. The vicious acts you committed on December 7. 1993, were the acts of a coward. What could be more cowardly than entering a train filled with unsuspecting, homebound 3

One of the puzzles about this play is the fact that Prospero seems simply wrong in some of his assessments here. Of the "three men of sin" who have wronged Prospero, only Alonso repents. Antonio and Sebastian do not. A theory to be pursued later in this paper is the Platonic claim that punishment itself may provoke repentance. Perhaps Prospero subscribes to some version of this theory, thinking that the suffering he has inflicted on his three enemies as punishment should have been sufficient to generate their repentance and thereby render them eligible for mercy. 1

Shakespeare's sensitivity to the idea that mercy may be a free act of grace is revealed in Portia's often quoted claim in The Merchant of Venice (Act I V ) that "the quality of mercy is not [con]strain'd; It droppeth as the gentle rain from heaven upon the place beneath: it is twice blessed." 2

Concurring opinion by Justice Anthony Kennedy in Riggins v. Nevada (504 U.S. 127, 143. 112S. CT. 1810, 1819). 3

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commuters and systematically shooting them at point-blank range....What is even more remarkable is your total lack of remorse. Have you observed any repentance by Mr. McCleskey? Has he exhibited to you any sorrow? Have you seen any tears in his eyes for this act that he has done? 4

5

One might, o f course, question the legitimacy o f raising such questions in the context o f the legal system o f a contemporary liberal and secular state. T o what degree, i f at all, is a criminal's repentance relevant to the punishment or mercy that the criminal should receive? Perhaps the state should simply be concerned with compliance to its rules and should regard such issues as the defendant's

sorrow and tears as private matters—-matters between the

defendant and his God, perhaps, but not between the defendant and his government. In the book Forgiveness and Mercy I tried to accept the constraints o f secular liberalism and still leave room for the possible legal relevance o f repentance.

I argued that a person cannot be said to deserve mercy in the

sense that he has a right to mercy and that others have a (perfect) duty to accord it to him. I also argued, however, that a person may exhibit certain

Nassau County Court, 22 March, 1995. These remarks were offered by Judge Donald E. Belfi as he defended the sentence o f 200 years that he had imposed on Colin Ferguson. Ferguson, identified by numerous eye witnesses, was convicted on six counts of murder and nineteen counts of attempted murder in an attack on commuters on a Long Island Rail Road train. A truly bizarre man (so bizarre that many questioned Judge Belfi's decision that he was sane enough to serve as his own attorney), Ferguson offered a totally unbelievable theory of mistaken identity in a hopeless attempt to establish his innocence. He claimed that his refusal to show remorse was appropriate because, being innocent, he had nothing over which to be remorseful. 4

These rhetorical questions were raised by Atlanta Assistant District Attorney Richard Parker as he argued before the jury that Warren G. McCleskey, convicted of murdering a police officer, should be shown no mercy but should be sentenced to death. After two hours of deliberation, the jury sentenced McCleskey to death. The quoted passage is from the transcript of the 1978trial.The death sentence was appealed (unsuccessfully), not because of a claim that the prosecution erred in focusing on McCleskey's lack o f repentance, but on totally different grounds: the claim that McCleskey, a black, might be receiving the death sentence in part because his victim was white. This argument was rejected by the United States Supreme Court in McCleskey v. Kemp, 481 U S . 279, 107 S.Ct 1756,95 L.Ed.2d 262 (1987), rehearing denied 482 U.S. 920,107 S.Ct 3199,96 L.Ed.2d 686 (1987). 3

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characteristics that make him more eligible for mercy than he otherwise would have been. Chief among these attributes, I argued, is repentance. 6

M y purpose in the present essay is to expand on the brief discussion o f repentance contained in the book—an expansion that involves substantial rethinking and modification o f the view presented there. I will explore the concept o f repentance, reasons for thinking that it is morally important, and ways in which it might be incorporated into our thinking about the philosophy o f the criminal law—not merely as a possible justification for mercy but as a possible justification for punishment itself 7

2. R E P E N T A N C E A N D M O D E R N I T Y A s the millennium (in at least one sense o f that word) approaches, the newspapers are filled with talk o f repentance. Pope John Paul has suggested that the Catholic Church repent for some o f the injustices against nonCatholics to which it has been party during its history; the American Southern Baptist Convention has publicly repented its role in American slavery and racism; and French President Jacques Chirac has attempted to express, for France, repentance for its cooperative role in the Nazi extermination o f French Jews. The Government o f Japan has struggled with developing a public response to its World War II atrocities against other Asian

Forgiveness and Mercy, (Cambridge: Cambridge University Press, 1988), by Jeffrie G. Murphy (Chs. 1, 3 and 5) and Jean Hampton (Chs. 2 and 4). I developed this account of repentance in connection with forgiveness and argued that it applies to mercy only to the degree that mercy is not a virtue separate from forgiveness. For an argument that there is a sense in which a person can deserve mercy, see Andrew Brien's "Mercy and Desert" (Philosophical Papers, 20(1991). pp. 193-201). For an argument (grounded in Christian theology) that repentance should not be viewed as a precondition for forgiveness, see L. Gregory Jones, Embodying Forgiveness, A Theological Analysis, (Grand Rapids: William B. Eerdmans Publishing Company. 1995). I am sorry that I did not become aware o f this book until I was in the process of meeting the deadline for the present essay. 6

When I wrote my chapters for Forgiveness and Mercy I was on the whole still convinced that the retributive theory of punishment is the correct theory of punishment and that such a theory can sit comfortably within the confines o f liberal theory. I had already started to develop some doubts about this, however, and these doubts have recently become quite serious. See my "Retributivism, Moral Education and the Liberal State" (Criminal Justice Ethics, 4 (1985)) and reprinted in my book Retribution Reconsidered, (Dordrecht: Kluwer, 1992) and my "Legal Moralism and Liberalism" (Arizona Law Review, 37 (1995)). 7

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nations—some officials advocating full repentance and others more cautious expressions of sorrow or regret—and the government of Argentina is still struggling with the nature and degree o f its public response to the atrocities committed against its own citizens in the "dirty war" during the regime o f the Generals. America, though taking a qualified public stand o f repentance with respect to its wartime internment o f Japanese Americans in concentration camps, has so far not taken such a stand with respect to slavery, genocide against Native Americans, or the terror-obliteration bombing o f German and Japanese cities during World War II. All of these possible acts o f repentance have been advocated, however, by some voices o f influence in American politics and opinion. 8

In sharp contrast to this talk about what might be called collective or group repentance (and all the logical and moral problems in which such talk is immersed), we rarely hear much talk these days about individual repentance. These two facts may, o f course, be related, since a stress on collective responsibility could well have a tendency to weaken feelings o f individual responsibility. Living (at least in America) in what some have called a "culture of victims," w e have seen in recent years the development o f various strategies to allow wrongdoers to avoid responsibility for their wrongdoing by claiming victim status for themselves, and a world without responsibility is a world in which repentance lacks logical space. 9

Gone, it seems, are the days in which w e could comfortably refer to prisons as penitentiaries—as places to which we would send responsible wrongdoers in order to encourage their repentance. W e simply do not value repentance the way w e once did; and the world has, in my view, suffered a loss thereby. Perhaps w e see the concept as some vestigial relic o f a religious worldview to which most people now, at most, pay only lip service. Or perhaps, even if w e accept the value of repentance in certain contexts, w e do not see an important place for the concept in a system o f criminal law and

For an illuminating discussion of some o f the issues involved in collective repentance and forgiveness, see An Ethic for Enemies, Forgiveness in Politics, by Donald W. Shriver. Jr. (New York: Oxford University Press, 1995). See Charles J. Sykes, A Nation of Victims; The Decay of the American Character (New York: St. Martin's Press. 1992) and Robert Hughes. The Culture of Complaint (New York: Oxford University Press, 1994). Sykes' book is often shrill and filled with political and rhetorical overkill, but it, like Hughes' book, introduces a useful perspective. 8

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punishment organized around secular values. It is even possible—given the realities o f crime and punishment in America—that w e cannot in honesty see prisons as anything more than fortresses in which w e warehouse an alienated underclass that is perceived, often quite accurately, as highly dangerous to the stability o f ordinary life. Given this background, an essay on repentance and criminal punishment may seem to be little more than an exercise in historical nostalgia—an exercise having little relevance to the realities o f the world in which w e live. Such a skeptical assumption would be premature, however, because it is possible that the scepticism could at least partially be laid to rest by a detailed discussion o f the concept o f repentance in the light of contemporary thinking and contemporary realities. Such an exploration is the object o f the present essay. 3. T H E C O N C E P T O F R E P E N T A N C E Repentance may be conceptualized as either an interior mental act or as an act with an essential social dimension. As an interior act, it may be seen simply as the remorseful acceptance of responsibility for the evil that one sees in one's character, the repudiation o f that evil, and the sincere resolve to do one's best to extirpate it. Montaigne, in his essay " O f Repentance," expressed the interior view when he wrote that "Repentance is nothing but a disavowal o f our own will and an opposition to our fancies." It is easy to see why repentance so conceptualized could be seen as an important moral or religious virtue—for example, as a step toward that "purity o f heart" o f which Kierkegaard spoke; but it is hard to see why the state, particularly the modern secular state, should concern itself with such matters. Indeed, Kierkegaard saw the state and the social relations over which it presides as a positive enemy o f repentance in this purely interior sense because it will tempt a person to confuse "the improvement toward society" with what really matters for the sinner: "the resigning o f himself to

Soren Kierkegaard, Purity of Heart is to Will One Thing, Spiritual Preparation for the Office of Confession, trans. Douglas V. Steere, (New York: Harper and Row, 1948). Ch. 2: "Remorse, Repentance, Confession." l0

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If repentance is to have important consequences for the social community—and for the legal system that partially binds that community together—it will be necessary to develop a concept o f repentance that moves beyond the purely inner sphere and into the arena o f social relations. Consider this definition: Repentance is the remorseful acceptance of responsibility for one's wrongful and harmful actions, the repudiation of the aspects o f one's character that generated the actions, the resolve to do one's best to extirpate those aspects of one's character, and the resolve to atone or make amends for the harm that one has done. Here the social dimension is obvious—both in the matters over which one is remorseful (wrongful harm to others and not merely a sinful character) and in the final steps of the repentance process (a recognition that one's evil had a victim—either a discrete individual or the entire community—and a desire to make that victim whole again). 11

Even if w e grant the social dimension o f this sense o f repentance, however, it still requires quite a leap to tie such repentance to the institution of criminal punishment. Should the very aim or purpose of punishment be to provoke repentance in the wrongdoer? Might this be, if not the primary aim, at least a permissible subordinate aim? If so, just how is punishment—the coercive infliction o f suffering—supposed to accomplish this? (When people hurt me I tend to get angry and resentful, not remorseful. ) A n d even if the purpose o f punishment is not to provoke repentance, may such repentance—when it is found—legitimately affect such matters as sentencing and pardon? These are the questions to which I shall now turn. 12

Note that repentance thus defined, in spite o f its social dimension, still retains inner elements—e.g., remorse. In this way it differs from the purely social (indeed ritualistic) act of apology. Repentant people generally feel inclined to apologize, but people who apologize are often not repentant. For a rich discussion of apology, see Nicholas Tavuchis's Mea Culpa; A Sociology of Apology and Reconciliation, (Stanford: Stanford University Press, 1991). As usual, Nietzsche is instructive here: "True remorse is rarest among criminals and convicts....By and large, punishment hardens and freezes; it concentrates; it sharpens the sense of alienation; it strengthens resistance." Friedrich Nietzsche, The Genealogy of Morals. Sec. XIV, translated by Francis Golffing, (New York: Doubleday, 1956). 11

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4. T H E P U R P O S E S O F P U N I S H M E N T

1 3

Most contemporary philosophical discussions o f the justification o f legal punishment see it as a practice driven by two not totally consistent values: deterrence and retribution. Deterrence looks to the future and justifies the punishment o f the criminal as an effective way o f providing him with an incentive not to commit crime again (special deterrence) or o f providing others w h o are aware o f his punishment with an incentive not to commit crime at all (general deterrence). 14

Retribution, on the other hand, is not concerned with future consequences. Rather it looks to the past and seeks to impose on the criminal the level o f suffering he deserves—that is to say, a level o f suffering properly proportional to the wrongfulness o f his criminal conduct. These two values will often produce consistent guidance—in cases where the amount o f punishment needed to deter is approximately the same as the amount deserved—but may sometimes point in opposed directions. For example: Strict criminal liability (punishment without regard to mens rea or other aspects o f moral fault) might well be an effective way to deter certain activities (for example, production o f child pornography); but, by definition, a person without moral fault (e.g., one who photographed a naked minor whom he reasonably believed to be an adult) could not deserve any punishment at all. 15

This is, of necessity, a very sketchy and superficial survey of the theory o f punishment. For a more detailed treatment see Ch. 3 o f Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law, An Introduction to Jurisprudence, (Boulder: Westview Press, Rev. Ed., 1990). I have tried to give a more detailed characterization of retributivism in some o f my other writings. See, for example. Murphy, "Legal Moralism and Liberalism." 13

Although the attempt to control crime through punishment depends mainly on a belief in the deterrent efficacy of punishment, punishment may also be used to control crime in a more direct way: incapacitation. Incapacitation is the attempt to make it impossible for a person to commit crime (through maximum security incarceration or even death). 14

Strict criminal liability is (in my view) always unfair, but it may indeed have general deterrence value. A requirement of mens rea (e.g.. intent or knowledge) is one more thing that the state has to prove and thus one more thing defendants might be able to exploit in attempting to establish reasonable doubt in the minds o f a jury. When strict liability (e.g.. absence of mens rea, one kind of absence of fault) governs activity in a particular area, then entering the area becomes more risky for potential criminals than it otherwise would have been (since they have one less avoidance strategy to exploit with respect to punishment) and 15

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Both o f these justifications o f punishment are problematic. Deterrence is open to the Kantian moral objection that it is willing to use people merely as means to produce social benefit and to the empirical objection that the law's capacity to deter may be more o f a hope than a fact grounded in solid evidence. Retribution is open to the conceptual objection that the concept o f desert is difficult to analyze with any precision—indeed is perhaps little more than a metaphor left over from old theological notions o f cosmic or divine justice—and that a just society will not impose suffering on people in pursuit o f a mere metaphor. Also, it is not at all clear why the secular state—not in the business o f playing God—should be concerned with punishing on the basis o f moral desert anyway. Problematic or not, the ideas o f deterrence and retribution are likely to remain as the dominant contemporary justifications o f punishment. Thus, for our present purposes, it will be useful to inquire into the degree to which, i f at all, repentance fits comfortably within these justifications. It might seem that, with respect to special deterrence, repentance has an important role to play; for it seems obvious that repentant people are less likely to commit crimes again than are those criminals who are unrepentant. Indeed, one might even suggest that controlling crime by provoking repentance is just another way o f describing the idea o f special deterrence. This pattern o f thought, though tempting, is hasty and superficial. Repentance surely means, not merely a resolution not to commit wrong again, but a resolution that includes a desire to make amends and that is based on certain virtues o f character; for example, remorse over the wrong that one has done. I f one's concern in punishing is merely to deter future criminal conduct, however, then one may consistently (and perhaps would realistically) ask much less from punishment than this. Punishment as deterrence is essentially a system o f threats, and threats appeal—not to the softer and more virtuous aspects o f our character—but simply to our capacities for fear grounded in self-interest. (It is for this reason that economists are drawn to deterrence theories o f punishment.) Also, deterrence theorists might well advocate punishments where the demand for remorse would be utterly inappropriate. The person w h o

thus entry becomes a less eligible option.

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commits a strict liability offense, for example, may have much to regret but—since he acted without moral fault—nothing to be remorseful about. In short: A deterrence justification o f punishment might under certain circumstances welcome repentance as an extra incentive, but a rich concept o f repentance—e.g. one meaning more than merely being disinclined to commit crime again—will not be a central idea in such an outlook. What about retribution? Do repentant people deserve less suffering than those who remain hard and unrepentant? Here w e must distinguish two different versions o f retributivism. According to what I will call grievance retributivism, punishment is deserved for responsible wrongful acts—acts that occasion legitimate grievances against the wrongdoer and which place the wrongdoer in a kind o f debt to his fellow citizens. According to what I will call character retributivism, one's deserts are a function—not merely o f one's wrongful acts—but also o f the ultimate state o f one's character. 16

17

Repentance will have less obvious bearing on grievance retributivism than on character retributivism. In general, the wrongfulness o f conduct at one time will not be affected by repentance at a later time. I typically d o not cease to have a grievance against you simply because you are now sorry that you wronged me; nor d o your debts to me disappear merely because you now lament those acts that put you into debt to me. There arc, however, some exceptions to this. Sometimes the wrongfulness o f an act is a function o f the harm that it brings to a victim, and sometimes this harm may be lessened through an act o f repentance. This is because (as I have argued elsewhere ) the harm experienced by the victim is sometimes (for example, in some rapes) perceived in part as an insult or a degradation—the unwelcome message that the wrongdoer regards himself as superior to the victim and may use the victim, like a mere object, for his own 18

See, for example, Herbert Morris's "Persons and Punishment," The Monist, 52 (1968). This essay has been reprinted in Jeffrie G. Murphy (ed.). Punishment and Rehabilitation, (Belmont: Wadsworth, 3rd Ed., 1995). 16

See, for example. Michael Moore's "The Moral Worth of Retribution," in Ferdinand Schoeman (ed.), Responsibility, Character and the Emotions, (Cambridge: Cambridge University Press, 1987). This essay has been reprinted in Murphy, Punishment and Rehabilitation, 3rd Ed. For an essay that explores the possible inconsistencies between this kind of retributivism and a liberal theory of the state, see Murphy "Legal Moralism and Liberalism". 17

Murphy and Hampton, Forgiveness and Mercy.

18

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purposes. Such an insulting message hurts; and this message may be withdrawn—and thus the hurt lessened—when the wrongdoer repents. This is why such repentance often opens the door to forgiveness; since, had forgiveness been granted earlier by the victim (prior to repentance by the wrongdoer), the victim might well fear that he was accepting—in a servile way—the insulting message contained in his victimization. 19

Often, o f course, victims o f wrongdoing will not see their hurt lessened by acts o f repentance. Perhaps they will see the injury done (e.g., harms to their children, or harms that leave them with serious physical handicaps, or harms that leave them poor) as involving harms having little to do with insult or degradation, and thus will be unmoved by any change in "message" conveyed by the wrongdoer. Or perhaps they will see the injury and degradation they have suffered as being so grave as to be "unforgivable." A s Simon Wiesenthal asks in his book The Sunflower: H o w many Jews will be or should be moved by the difference between a repentant Nazi exterminator and an unrepentant Nazi exterminator? A n d i f they are moved, in what direction will they be m o v e d ? Cynthia Ozick, in her essay in The Sunflower, suggests that the repentant Nazi reveals a moral nature that he must have repressed in order to engage in unspeakable practices. This, by her lights, makes him worse than someone w h o is simply a crude and unreflective thug and prompts Ozick to say o f him: " L e t him g o to hell. Sooner the fly to God than he." Or consider Elie Weisel's prayer at ceremonies marking the 50th anniversary o f the liberation o f Auschwitz: " G o d o f forgiveness, do 20

Although I am here discussing harm to an individual victim o f crime, it is important to note that the harm of crime may befall the community as a whole. Treason is a dramatic example where the harm is essentially harm to the entire community, but many crimes will have this community dimension—a fact that in part explains the nature of the state as the complaining party in criminal prosecutions. The idea of wrongdoers as traitors to the ideal of community is pursued in a rich (if often obscure) way by Josiah Royce in his 1918 work, The Problem of Christianity. See especially Ch. VI ("Atonement"). Simon Wiesenthal, The Sunflower, (New York: Schocken Books, 1976). In this book Wiesenthal tells the story of his experience when a dying Nazi begged forgiveness for the atrocities that the Nazi had committed against Jews. After the story, a variety o f writers comment on it. 19

20

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not forgive those who created this place. God o f mercy, have no mercy on those who killed here Jewish children."

21

In short: Although repentance may play some role around the edges, it will—at least initially—not seem central in those versions of retributivism that emphasize a concept of desert based mainly on wrongdoing, grievance, and debt.

22

What about those versions of retributivism that seek to target a concept o f desert based, not merely on wrongdoing, but on ultimate character? Here repentance might well play a crucial role; for a repentant person seems to reveal a better character than an unrepentant person, A concern with such nuances o f character, however, is not likely to affect the basic design of the criminal code itself

Criminal punishment is, after all,

an exercise o f political or state power. It is easy to see why such power will be mainly concerned with wrongdoing (either to prevent it or to give it what it deserves in the sense o f removing a debt or righting a wrong), but hard to see why the state—particularly the liberal secular state—should be concerned with ultimate character independent of wrongdoing.

23

It would seem that it

could at most address this concern as a subordinate goal—perhaps as a way o f constraining, through fine-tuned individuation, a system mainly concerned

Suppose Wiesenthal or some other Nazi hunter had a list of escaped Nazis who ran death camps—each responsible for the deaths of the same number o f Jews. Suppose some are repentant and some are unrepentant and that time and resources allow the capture of only some of them. Does one go for the repentant ones first or last? I owe this puzzle to Cynthia Ward. I say "at least initially" here to make room for an issue I wish to explore later in the paper when I consider possiblerepentance-basedgrounds for mercy. Those with grievances against wrongdoers often want the wrongdoers to suffer punishment. But is it not the case that a truly repentant wrongdoer inflicts suffering upon himself—through feelings of selfloathing, perhaps? If this is so, perhaps this suffering could be used to justify a reduction in the amount of suffering inflicted by the state as punishment since what is deserved is arguably an overall amount of suffering. I am not sure that it is legitimate for aggrieved persons to demand that those who wronged them suffer. If this is legitimate, however, it would require a separate argument to render legitimate their demand that all the suffering be imposed by the state and that none that is self imposed should be allowed to count I am grateful to Andrew Brien for calling this issue to my attention, and I hope that my later—and very tentative—treatment of it in the section of the paper on mercy and sentencing will advance the discussion in a useful way. 21

22

23

See Murphy, "Legal Moralism and Liberalism".

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with other matters. Thus it is not surprising that, in a legal world dominated by the values of deterrence and politically relevant retribution (that is to say, grievance retribution), a concern with issues o f deep character will more likely be regarded as relevant, if at all, at the level of sentencing or pardon or restoration of rights for parolees (issues to be discussed in a later section o f this essay) than at the level o f the basic design and purpose o f the criminal code itself. 5. P U N I S H M E N T A S M O R A L

IMPROVEMENT

It was not always this way, of course. Plato, although he made some place for general deterrence and incapacitation in his account o f punishment in his great dialogue Laws, rejected retribution (which he could not distinguish from vengeance) as utterly barbaric. He offered instead, as the dominant value that should govern criminal punishment, the value of moral improvement—punishment as a means o f transforming the character o f the criminal from a state o f vice to a state of virtue. The goal o f punishment is future oriented, but not mainly as a device for securing future compliance to law. Compliance is not the primary aim o f punishment but will rather be secured as a by-product o f the value that is the primary aim: instilling in the criminal, not just a fear based in self-interest, but rather a true sense o f justice—a desire to do the right thing for the right reason. The goal is to confer upon the criminal a good (the greatest good: a good character), and this is why the theory is sometimes referred to as a "paternalistic" theory o f punishment. 24

This Platonic theory, until recently rejected by legal philosophers as quite implausible, has now been powerfully resurrected—particularly in the recent writings of R. A . Duff, Herbert Morris, and Jean Hampton. Since 25

The two best discussions of Plato's philosophy of punishment are Mary Margaret Mackenzie's Plato on Punishment (Berkeley: University of California Press. 1981) and Trevor J. Saunders' Plato's Penal Code (Oxford: Oxford University Press, 1991). Herbert Morris, " A Paternalistic Theory o f Punishment," American Philosophical Quarterly 18 (1981); Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs, 13 (1984): R. A. Duff, Trials and Punishments, (Cambridge: Cambridge University Press, 1986). The Morris essay and a chapter from the Duff book are reprinted in Murphy, Punishment and Rehabilitation, 3rd Ed. Although emphasizing punishment as a means of educating and reforming character. Duff, Morris and Hampton—unlike Plato—make room for retributive values as well. 24

25

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repentance has a central role to play in such a theory—particularly in D u f f s version—it will be useful to consider it in our discussion. First of all, it is worth considering w h y — f o r a long time—the theory that punishment may function to generate repentance was understandably rejected as implausible. There are several reasons.

The most obvious is that our

primary methods o f punishment are so brutal as to make repentance either impossible or unlikely. (In spite o f Dr. Johnson's quip that the prospect o f being hanged tends to focus the mind, the death penalty and incarceration in the pest-hole o f the modem prison seem primarily to brutalize all those who come in contact with the system.) A l s o , contemporary criminal law (at least in America) tends toward radical over-criminalization—punishing many offenses with absurd excess and regarding some actions as crimes that, since their moral wrongness is doubtful, are also doubtful objects o f repentance. The Georgia Penal Code, for example, provides that consensual homosexual sodomy may be punished by up to 20 years in prison, but it is by no means obvious that the homosexual has done evil o f a kind for which repentance may legitimately be demanded by a secular community. A l s o , the criminal process will sometimes result in the conviction o f persons who are actually innocent. T o demand repentance o f such persons is simply to add insult to the injury that they suffer from being unjustly punished. Consider finally the crimes (for instance, criminal trespass, unlawful assembly) that may be committed by persons whose motives are those o f

non-violent

civil

disobedience. Do w e really want to seek repentance from the Martin Luther Kings and Gandhis of the world?

26

T h e answer to these worries is, I think, to insist that the paternalistic theory o f punishment is an ideal theory—not a description o f the world in which w e live but rather the portrait o f a world to which w e should aspire.

Professor Uma Narayan makes the point about the unavoidability, in a system of punishment aimed at repentance, of sometimes improperly seeking repentance from the innocent in her unpublished paper "Contrition and Criminal Punishment." My colleague Betsy Grey, in conversation on the recent film Dead Man Walking, made me realize that it would be a mistake to dismiss utterly Dr. Johnson's famous quip. She noted that the condemned murderer in this fact-based film does not come to accept responsibility for his crime and truly repent until a short time before his execution and that it is unclear that he would have ever attained this spiritual rebirth in the absence o f a tangible fear of imminent death. The book on which the film is based is Dead Man Walking, by Helen Prejean, CSJ (New York: Random House. 1993). 26

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A state or community properly using the criminal law to provoke repentance would have only just laws (laws organized around a respect for fundamental human rights) and would use only methods o f punishment that would assist genuine moral rebirth and not simply reflex conformity or terrified submission. Thus the fact that most o f our present penal practices are not o f this nature will be seen—by someone committed to the paternalistic theory—as a condemnation of those practices and not as a refutation of the paternalistic theory itself. The Chinese demand for criminal repentance under the regime o f M a o was morally disgusting, not because it sought repentance for a violation of community norms, but because the norms themselves were often very evil and the means used to secure repentance were degrading.

27

Even as an ideal theory, however, the paternalistic theory is open to serious challenge. Punishments that are not brutal and inhumane must still, if they are truly to be called punishments, inflict some serious deprivation—some hard treatment—on offenders. (Otherwise how would punishment be distinguished from reward or from psychiatric therapy as a means o f reform?) How is this hard treatment to be justified as a step toward repentance and reform? There is, o f course, an obvious connection between repentance and suffering. Repentant people feel guilty, and a part of feeling guilty is a sense that one ought to suffer punishment. Thus guilty and repentant people may

Of course, as Plato noted in Laws, it is o f some embarrassment that an ideal society should have to punish al all. An ideal Platonic society is, after all, structured to produce virtuous citizens. Why then are there still criminals? And, if virtuous socialization has not yet taken, why suppose that it will take in the process of punishment? Plato says that punishment in such an ideal society is needed mainly to deal with slaves and foreigners—persons who, as outsiders, have not undergone the processes of socialization that will attach them to shared community values. Contemporary multicultural societies exhibit diversity of value, of course, and the list of shared community values may be shorter than we might initially have hoped; thus the use of a paternalistic criminal law. and its demand for repentance, may to that degree be restricted. We should not too quickly overestimate such diversity, however, for there may be a core of basic moral agreement lying beneath the surface of apparent disagreement. The urban teenager, whose only possible legal employment may be working for minimum wage at McDonald's, may initially think that he is justified in selling drugs. Would he still hold this view if directly confronted with a young and innocent life destroyed by the drugs he sold? Diversity o f value (and associated self-deception) is easier to maintain about some issues than others. 27

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well seek out, or at least accept willingly, the punishment that is appropriate for their wrongdoing.

28

This connection, by itself, will not yield the paternalistic theory, however. For the connection thus far establishes only that repentance will naturally lead to an accepting o f punishment (or other penance). The paternalistic theory, however, requires that the connection go in the other direction; that is to say, that punishment itself will produce repentance. H o w could this be so? There is a traditional answer here, but it is not one that is likely to appeal to the contemporary mind.

A certain kind of Platonist, committed to

soul/body dualism, might argue that tendencies to wrongdoing arise from the desires of the body when those desires are not under the proper control of the rational soul.

29

St. Paul was no doubt under the influence o f this kind o f

Platonism when, in Romans 8:23, he described his own moral failings by saying " I see another law in my members, warring against the law of my mind, and bringing me into captivity to the law o f sin which is in my members." Given such a view, it is not difficult to imagine that the infliction o f suffering that mortifies the body might well cause one to grow to hate the body and focus more upon the soul and the life of virtue that the soul makes possible.

30

Such an account is. o f course, highly problematic.

It is hard for the

contemporary mind to embrace a sharp soul/body dualism and even harder to accept the claim that wrongdoing typically arises from desires o f the body. (This may work for rape, but it seems highly implausible for treason.) Some vice is highly intellectual in nature and results far more from a corrupt mind

In a later section, I will explore the relation between this idea and mercy in sentencing and pardon. Plato only sometimes (e.g., in parts of Phaedo) talks in this simplistic dualistic way. At other times (e.g., in Republic) he offers a more complex picture o f the nature o f motivation and the origin o f wrongdoing. 28

29

As my colleague Michael White has pointed out to me, similar ideas may be found in the Christian ascetic tradition (e.g., in Pascal). In general, o f course, the ascetic tradition is speaking of acts of mortificationthatare voluntarily assumed. Pains that are not voluntarily assumed (e.g., illness, acts o f punishment) may also lead to spiritual improvement if they are accepted in the proper spirit, but it is hard to see how the pains themselves can generate the proper attitude of acceptance. 30

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31

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Thus, i f one wants a theory that

follows in Plato's spirit without embracing the metaphysics o f his letter, one might see punishment as reforming—not merely by subjecting the body—but by curtailing the power o f whatever aspect o f the personality is responsible for vice. As Herbert Fingarette has argued, the wrongdoer has assumed a power greater than is his right to assume, and thus it is important that he have his will humbled.

32

Punishment makes him suffer (in the sense of endure),

and such suffering gives him not only what he deserves but also provides him with an important lesson in the legitimate scope o f his power. But how does punishment itself make the lesson take? Unless w e can imagine a plausible mechanism to explain how the infliction o f suffering itself generates repentance and reform, it looks as though w e will at most be able to claim that punishment provides us with an opportunity

to do

something else to a person (provide therapy, education, religious instruction, etc.) that might be reformative. But then w e would be justifying punishment, not in terms o f its o w n reformative potential, but simply in terms o f the opportunities that it provides—hardly the challenging promise originally held out by the paternalistic theory. R. A . Duff is sensitive to this problem and makes a very promising start toward salvaging the paternalistic theory from the many objections that have been raised against it. H e makes no pretense that punishment can guarantee repentance and reform. (Neither, o f course, can other interventions—such as psychotherapy—that also aim at reform). In this sense he would agree that punishment can d o no more than offer criminals an opportunity for moral rebirth. In his view, however, the opportunity is presented by the punishment itself and not by some other devices that might be employed while punishment is being endured. H o w could this be? It is, claims Duff, because punishment must be understood in communitarian terms—as an act of communication between the community and a person who has flouted one o f that community's shared

Aristotle, at Nicomachean Ethics 1129a. locates the cause of much wrongdoing in pleonexia—the desire to have more than one's fair share. This desire can hardly be understood as having its origin in the body. 31

Herbert Fingarette, "Punishment and Suffering." American Philosophical Association Presidential Address, 1977. 32

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norms.

T h e suffering

endured is that o f separation from a valued

community—a community which the criminal values (perhaps without realizing it until he experiences its loss) and to which he would like to return—and communicates to the wrongdoer the judgment that his actions have made him, at least temporarily, unworthy o f full participation in the life o f the community. It requires that he experience the pain o f separation so that he can come to see, in his heart, the appropriateness o f that separation and thus seek, with the appropriate humility, reconciliation with the community that he has wronged. In other words, the hope is that a kind o f compulsory penance will be replaced by a voluntary penance.

Voluntary

penance is a sincere act o f reattachment or allegiance to community values—an act that will allow the wrongdoer to be welcomed again and reintegrated into community life. And what makes this paternalistic? Simply this: Punishment on such terms will benefit the wrongdoer because severance from a community—if it is a just and decent community—is a genuine harm to the individual who is isolated, and reintegration is a genuine good for him.

34

According to Duff, the right sort o f prison may help the wrongdoer to achieve the good o f reintegration because it "removes the criminal from his corrupting peers, and provides the opportunity for and the stimulus to a reflective self-examination which will [ideally] induce repentance and selfreform."

35

For the pursuit of a similar idea from the perspective of social science, see the discussion of "reintegrative shaming" in John Braithwaite's Crime, Shame and Reintegration, (Cambridge: Cambridge University Press, 1989). 33

The importance o f the constraints o f justice and decency cannot be overstressed. Too often communitarians fail to make sufficiently clear that it is only communities organized around the right values, and not all communities, that are worthy o f allegiance. 34

The idea of prison envisioned by Duff—a place providing an opportunity for and stimulus to repentance—is not without problems. Maimonides distinguished coerced from deliberative repentance. The former arises when the conditions for indulging in sinful behavior are no longer present. Coercive repentance is "imperfect" because it does not secure a sincere change of heart on the part o f the wrongdoer. As such it is contrasted with the "perfect" repentance that arises from the exercise of free choice in an environment where it is still possible to succumb to the relevant temptation. It is thus hard to see how incarceration could provide more than an opportunity for imperfect repentance. (See Pinchas Peli, Soloveitchik on Repentance, (Paulist Press, 1984). This is a treatise on Rabbi Soloveitchik's teachings on Maimonides.) 35

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A l s o worth considering are such alternatives to prison as community service and restitution.

36

Duff's theory is rich and in many ways compelling. It cannot be the whole story on the justification o f punishment, but it is—in my judgment—an important and largely neglected part o f the story.

37

It may, o f course, be

highly unrealistic to attempt an application o f the theory to the crime problem in a society such as that found in contemporary America. It is not at all clear to what degree there is a genuine community o f values in our society; and, even where there may be a community o f values, it is sometimes the case that those who flout those values feel so alienated (perhaps because o f poverty or racial injustice or cultural exclusion) that they could not reasonably see reintegration into the community as a good to be secured by their punishment because they never felt truly integrated into the community in the first place.

38

However, i f the paternalistic theory really is a compelling ideal

theory, then even a serious gap between theory and practice will not be a legitimate ground for rejecting the theory. Rather it will be an occasion for

In correspondence (1995) Duff says I'm inclined now to place less weight on imprisonment as a mode of communicative punishment (though it can have some place in such an account), and more weight on non-custodial punishments: both on standard kinds of sentence like community service and probation, and on more experimental kinds of program such as victim-offender mediation programs, and programs which aim to confront offenders with the effects and implications o f their offenses. These are often portrayed by then advocates as alternatives to punishment (often as 'therapeutic' rather than 'punitive'), but I think they are better understood, and should operate, as communicative punishments." 36

Here is one reason why it cannot be the whole story: The paternalistic theory, by placing so much emphasis on the way in which criminality severs ties with the community, perhaps lends to under-emphasize that crime also poses special threats to and imposes special injuries upon individual victims. It is not clear that a proper concern with the victim can be adequately addressed by an account o f punishment that focuses mainly on the wrongdoer and on what would be good for him. How, on a scale of severity of punishment, will criminal offenses berankedon Duff's account—by the harms they cause to the victim or by what it would take to secure penance from the offender? The latter can hardly be expected to satisfy all crime victims. For a discussion that gives emphasis (too much I am now inclined to think) to the concerns o f the victim, see "Getting Even: The Role o f the Victim" in Murphy, Retribution Reconsidered. 37

For a discussion o f the ways in which social inequality can undermine the application of theories of punishment, see Jeffrie G. Murphy, "Marxism and Retribution," Philosophy ami Public Affairs, 2 (1973) and reprinted in Jeffrie G. Murphy, Retribution, Justice and Therapy, (Dordrecht: Reidel, 1979). 38

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mourning the community that we have lost and for seeking to regain it—or for seeking to create it i f w e have never had it. Those committed to the paternalistic view will argue that we should work to create a community o f mutual

concern

and

respect

wherein punishment,

if

needed

at

all,

could—without self-deception or hypocrisy—be defended on paternalistic grounds. But suppose that w e are sufficiently charmed by the paternalistic theory that w e want to get started now and not wait for the ideal world. How might w e proceed? Perhaps the best arena in which initially to attempt to apply the theory is to be found, not in the adult criminal law, but in the law dealing with juvenile offenders. Juvenile offenders are probably more open to radical character transformations than are adults.

A l s o , as David M o o r e has

suggested, the more informal and discretionary proceedings might allow—in encounters between offender (and family) and victim (and family)—the use o f empathy to build a sense o f community that more abstract and formal proceedings might mask. It is also possible that one might be able to draw on sub-communities in ways that would ultimately benefit the larger community by developing in juvenile offenders a sense o f self-worth through "belonging." For example, in 1994 a state court in Washington placed the punishment o f two Tlingit teenagers guilty o f robbery and assault in the hands o f a tribal court—a court that banished the teenagers for 18 months to separate uninhabited Alaskan islands in the hope that the necessity o f surviving on their own, with only traditional tools and folkways to guide them, would build their characters and allow them reintegration into the community. Ideally, o f course, one would want all citizens to feel a sense o f belonging in the larger national community. One has to start somewhere, however, and—since self-esteem cannot grow in an asocial vacuum—why not (before gangs come in and assume the role) take advantage o f the opportunities offered by particular cultural subgroups? Such experiments are surely worth a try.

39

According to The New York Times (11 September, 1995), the Tlingit experiment was unfortunately not allowed to run its full course. According to a tribal judge, the teenagers were making definite improvements when the conditions o f their banishment were being enforced. After a few months, however, the enforcement became lax and they began more frequent interactions with their families and friends—even coming into town on occasion. According to tribal judge Elbert James, "They're [no longer] out on their own. They're not 39

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Repentance, Punishment, and Mercy 6. L E G A L M E R C Y : S E N T E N C I N G , P A R D O N A N D RESTORATION OF RIGHTS

In the present world, o f course, w e will no doubt continue to employ a system o f criminal punishment that is driven by a variety o f different values. Even i f w e seek to introduce paternalistic concerns as one o f our justifications, concerns with crime control (deterrence and incapacitation) and retribution will also loom large. In a system driven by these non-paternalistic values, even full repentance on the part o f the criminal will frequently be viewed as not sufficient to remove the need for punishment. Punishing even the fully repentant might well serve general deterrence values, and it almost certainly will be demanded by crime victims who believe, on grievance retributive grounds, that the injuries that they have suffered require a response that is proportional to the wrongs that have produced those injuries. I f repentance is to play any role at ail in our present system o f criminal punishment, then, it will probably be as one reason bearing on whatever discretion officials are allowed within a punitive range that satisfies the legitimate demands o f crime control and grievance retribution. If, for example, we have grounds for believing that society's legitimate general deterrence and retributive objectives with respect to a specific offense could be satisfied by any punishment within a particular range (for example, 3 to 8 years), then sincere repentance could provide an authority with discretion (normally a sentencing judge or an executive with the power of pardon) with a good reason for choosing a punishment at the lower rather than the higher end o f the range. I shall refer to decisions to impose a reduced sentence as

by themselves. They're not thinking about things. They're not digging around getting food, not working hard to cut wood to make their own fire. At first, when we had them out by themselves, you could see a definite improvement in those boys. But then their families CAME in and GOT their hands on them, and they quit being dependent on themselves." For an extremely insightful attempt to apply communitarian theory to issues in juvenile justice (with examples from New Zealand and Australia), see David B. Moore's "Shame, Forgiveness, and Juvenile Justice" in Criminal Justice Ethics, 12(1993), pp. 3-25. For the newsletter of a group attempting to give Moure's ideas an application in America, see Real Justice Forum, P. O. Box 500, Pipersville, PA, 18947. For a sceptical critique o f victim-offender mediation, see Jennifer Brown's "The Use of Mediation to Resolve Criminal Cases: A Procedural Critique," 43 Emory Law Journal 1247.

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acts o f mercy when they are based on some relevant aspect o f the offender rather than on factors of a purely external nature such as jail overcrowding. But in what sense is repentance a relevant aspect? T h e obvious answer is to be found within the context o f what I earlier called character retributivism. The repentant person has a better character than the unrepentant person, and thus the repentant person—on this theory—simply deserves less punishment than the unrepentant person. This basis for mercy meaning here simply a reduction of sentence—is easy to understand, and may even be conceptualized as an aspect of justice. Less immediately apparent, however, is a way in which repentance can be a basis for mercy (again as sentence reduction) even within the context o f what I earlier called grievance retributivism. Victims o f wrongdoing often want the person who wronged them to suffer. If these victims are moral and rational, however, they will not desire that the wrongdoer suffer to any degree greater than he deserves. But what is deserved suffering? I have neither the space nor the talent to present a complete theory o f this matter here, but one thing should be obvious: there will, on any theory o f deserved suffering, be a prescription that a certain overall amount o f suffering be experienced by the wrongdoer as what he deserves. W e normally expect the proper amount o f suffering to be administered by the state through legal punishment. However, i f there is reason to believe that the individual has already experienced a significant amount o f relevant suffering through non-legal channels, it is not unreasonable to suggest that the suffering he experience at the hands o f the state be reduced to that degree—perhaps eliminated entirely in those cases where w e are inclined to say "he has suffered enough." If mercy—in the sense o f reduction of legal punishment—is extended on these grounds, this will not compromise the legitimate claims o f grievance retributivism but will instead be required by them. O f course, not all suffering is relevant—for example, the suffering that a wrongdoer might experience from losing a position that his criminal conduct

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showed that he had no right to enjoy in the first place. A familiar example o f this is the loss o f professional reputation.

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I am inclined to think that the suffering that one imposes upon oneself through repentance is very different from this, however.

T h e sincerely

repentant person tortures himself—hates at least that aspect o f himself that allowed him to engage in the wrong he now laments—and the pain that this produces is arguably relevant in a way that a painful loss o f an undeserved honorific status is not. Unless the victim's injury is one that is regarded as simply unforgivable, then the self-generated suffering experienced by the repentant wrongdoer might well be accepted by an aggrieved victim as a part o f what he is owed in the way o f suffering from the person who wronged him.

If he does not accept this, then it would seem that the burden o f

argument now shifts to him to explain why, i f the amount o f relevant suffering is proper, it matters in any deep moral sense what percentage o f it comes from the state.

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W e can now see how repentance could be a basis for sentence reduction even on grievance retributive grounds. The actual use o f this basis, however, is tricky. W e normally consider granting mercy or pardon when someone begs or petitions for it. A truly repentant person, however, would normally see his suffering punishment as proper and might, as noted earlier, even seek it out. Why then is he begging for mercy and trying to avoid more punishment? Is the fact that he wants us to reduce his punishment perhaps evidence that he is not repentant; and are w e then faced with the problem that the only persons who are truly eligible for mercy on grounds o f repentance will almost never get it because their repentance will cause them not to ask for it?

One thinks here of President Gerald Ford's decision to pardon former President Richard Nixon on thegroundsthat Nixon, forced to leave office because of his criminal conduct, had already suffered enough by losing the presidency. 40

If one accepts Herbert Fingarette's view ("Punishment and Suffering," American Philosophical Association Presidential Address, 1977) that punishment is justified in order to "humble the will" of the wrongdoer by making him submissive to the legitimacy o f the very power he thwarted, then one might have the basis o f an argument that state punishment cannot be replaced by self-punishment, since self-punishment could be viewed as an exercise of the very faculty that needs to be humbled: autonomy. The person who would impose his own punishment perhaps still has loo much of a "these matters are up to me" attitude. 41

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Character, Liberty, and L a w There are reasons for being cautious here, and many practical problems o f

distinguishing real from counterfeit repentance exist.

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In my judgment,

however, there are no insoluble problems o f principle. And this is for two reasons.

First, w e might have sufficient grounds to grant mercy in cases

where the person (perhaps because o f neurotic desires for too much selfpunishment) refuses to ask for it. Second, i f w e take the trouble to inquire, w e might find that some repentant persons ask for mercy, not so that they can avoid some deserved suffering, but in order that they can leave prison and do something useful and good with what remains o f their lives. W e should not simply assume that all such expressions are disguises for self-interest, although some o f them certainly are.

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It is important that any system that rewards repentance (and thus, like our present system o f plea bargaining, gives defendants strong incentives to fake it) develop safeguards against counterfeit repentance. As Montaigne observed: "These men make us believe that they feel great regret and remorse within, but of amendment and correction or interruption they show us no sign...I know of no quality so easy to counterfeit as piety." 42

Legitimate caution here, however, should not lead one to adopt the radical sceptic view that we can never have reasonable grounds for thinking that repentance is genuine. It is indeed hard to know another's mental states; but, as our reasonably comfortable use of mens rea in the criminal law illustrates, we do not generally regard it as impossible. It is often said that genuine mercy grows out of compassion rather than a sense of justice and, because o f this, may lead us into injustice—revealing itself thereby as a vice rather than the virtue it is usually claimed to be. Following Saint Anselm, I raised this worry in Murphy and Hampton, Forgiveness and Mercy. I am now inclined to think that this move against mercy is far too hasty and probably rests upon an ambiguity in the concept of compassion. If compassion means nothing more than "feeling sorry for," then it may be nothing but a piece of personal sentimentality that has no place in thinking about punishment and mercy. The root meaning of compassion, however, is to feel with—i.e., empathy. Being a compassionate person in this sense involves taking the trouble to view the wrongdoer (indeed all others) through trying to understand his life from inside, his life as it actually is, rather than in terms o f the general category "criminal" and the application o f a few hasty assumptions and socially accepted cliches about persons in this class. This will involve efforts at individuation both o f the criminal ("Is he really just an evil piece of scum?") and of oneself as victim ("Have I really experienced an injury that is truly unforgivable?"). As David Moore has observed ("Shame, Forgiveness, and Juvenile Justice"), vicious sentiments directed toward criminals—so easy to express in the world of public politics—often drop away when the criminal and victim can be brought together in such a way that they can relate to each other as individual people. In many (but, o f course, not all) cases, these encounters allow the victim to move toward forgiveness and mercy as the criminal moves toward repentance. We would do well to adopt the wise 43

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In summary: A truly repentant wrongdoer is recommitted to community values, requires no additional special deterrence, and clearly—on the theory o f character retributivism—deserves less punishment than a wrongdoer who is unrepentant.

When one could promote the goods represented by these

considerations without compromising the law's legitimate interest in crime control and grievance retribution (to which repentance, I have argued, may also be relevant), it would seem irrational—even cruel—not to do so and bestow mercy. There are, o f course, degrees of mercy; and the grounds that justify letting a person out o f prison may not require that the community treat the freed individual exactly as he would have been treated prior to any criminal conduct. Heavyweight champion Mike Tyson served his sentence for rape and was properly released from prison.

Football and movie star O. J.

Simpson, charged with murdering his wife and her friend, was acquitted at trial and was properly released from prison.

Substantial segments o f the

American public refuse to welcome these two men back into American society, however, because they are viewed as wrongdoers who refuse to acknowledge and repent o f their wrongdoing. Although both men maintain their innocence, many people simply do not believe them and thus, while agreeing that they must be freed from jail, still refuse to accord them their previous levels o f respect—for example, by no longer employing them for commercial endorsements. And consider the case o f Tonya Harding. She did express remorse for what she claimed to be her limited role in the criminal assault on fellow Olympic skater Nancy Kerrigan, but the American public—while no doubt generally content with the plea bargain that allowed her to avoid jail time—still continues to treat her with contempt.

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Is this because o f a belief

that she minimized her actual role in the crime, or a belief that she is not truly

perspective that Felicia (in the William Trevor story) adopted toward the man who tried to murder her: "Lost within a man who murdered, there was a soul like any other soul, purity itself it surely once had been." William Trevor, Felicia's Journey, (London: Viking, 1994). For further insight on these matters, see Martha Nussbaum's "Equity and Mercy," Philosophy and Public Affairs, 22 (1993), pp. 83-125 (reprinted in Murphy, Punishment and Rehabilitation, 3rd Ed.). In a pitiful attempt to begin a career as a singer, Harding was recently pelted with rotten fruit while she was performing on stage. 44

Character, Liberty, and Law repentant, or an unwillingness to forgive her even if she is truly repentant? There is no way o f knowing for sure; and I mention this and the previous cases simply to make the point that " w e will let you out o f j a i l " does not always lead to " w e will fully welcome you back into the community." N o doubt the former generally should lead to the latter; but sometimes there are perhaps understandable reasons why it does not. T h e re-entry course, mainly choose to make for commercial citizens.

problems faced by Tyson, Simpson and Harding are, o f concerned with the private responses that other citizens to them—responses (such as refusals to offer opportunities endorsements) that are clearly within the rights o f those

But what i f it is the state that refuses to allow—even for the repentant and freed criminal—full re-entry into the rights and privileges o f society? Even this, I think, is a matter o f considerable complexity. Consider the issue of the restoration of certain rights to paroled felons--a matter that, in the absence o f specific legislative enactments, is often left in the hands o f officials o f state agencies that are neither judicial nor executive. For example, a couple of years ago, the admissions committee o f the C o l l e g e o f L a w at my university admitted a paroled murderer into the first year class. The outcry from alumni and legislators was enormous—including a still simmering threat to withdraw funding from the College and shut it down. Both the parole board and the admissions committee believed that the individual, who had served a very long prison term, was sincerely repentant, fully rehabilitated, and desired to make the rest o f his life o f some use to society. Critics regarded this argument as irrelevant either because they doubted the sincerity o f the repentance or, more commonly, because they believed that even fully repentant murderers owed a lifetime debt to their victims and to the community that could not be overcome by any change o f character. W h o is right here? It is, I think, very hard to say. Although I supported and continue to support the admission o f this person to the College of Law, the decision was a close call for me because I think that reasonable people can be on either side o f an issue o f this nature. Even those who advocate reintegration o f repentant criminals into the community might have reasonable grounds for limiting this reintegration. Although it would surely be unconscionable to deny such individuals access to state medical care or even general state programs of university education, it does not strike me as

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comparably unconscionable to adopt, if not an absolute rule, at least a strong presumption against allowing such individuals access to such a scarce and costly community resource as a tax-funded legal education.

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What this discussion shows, I think, is that much more thinking needs to be done on the relationship between mercy and repentance. Repentance may earn a reduction in sentence—perhaps even a full release from prison—but may understandably be viewed as not sufficient to earn complete reintegration into the community.

It may get you out o f the fire and into the frying

pan, but—as I think J. L. Austin remarked somewhere—it may be a frying pan that is still in a fire.

7. A CLOSING SECOND THOUGHT ON COLLECTIVE REPENTANCE When one thinks o f repentance in connection with criminal punishment, one tends to think that all demands for repentance must be addressed to the criminal. But surely the community—through and discrimination—sometimes

its patterns o f abuse, neglect

creates a social environment that undermines

the development o f virtuous character and makes the temptations to crime very great—greater similarly situated.

than many o f us might have been able to resist if

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The entering law school class is limited to under 150 students and only medical school education is more limited and more costly. In the modern world, some college education is increasingly important in assisting people to develop into fully autonomous citizens and to lead rich and meaningful lives, and to deny paroled felons access to such programs would undermine the possibility of the ray kind of self-improvement in them that we want to see continue. It is harder to defend legal and medical education in such terms, however, since it is fairly easy to make great strides in self-improvement, develop full autonomy, and lead a rich and meaningful life without becoming a lawyer or doctor. I would not favor an absolute ban on admission of paroled felons, however, since I would (for example) want to leave open the possibility of admitting such a person who expressed a desire to develop expertise in issues of prisoners' rights and could argue that his own experience behind bars would be a great asset in such a practice. 45

"If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration o f distant motives, society has itself to blame for the consequences." John Stuart Mill, On Liberty, Ch. IV. 46

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Character, Liberty, and L a w The important idea here is not that criminals, i f they are from social groups

that are poor or despised or abused or discriminated against, are not to any degree responsible for their criminality. They are. A s a part o f their dignity as human beings, they must be seen as responsible agents and not merely as helpless victims. But their responsibility is, in my v i e w , sometimes shared with those o f us in the larger community.

In these cases, w e too may be

legitimately called upon for repentance and atonement—attitudes o f mind that should prevent us from thinking o f criminals as totally other and should thus moderate our tendencies to respond to them with nothing but malice. At

present, however, unrepentant viciousness toward criminals has

become an increasingly pervasive feature o f American society.

So out o f

control is this passion that Chief Judge Richard A . Posner, hardly a bleeding heart sentimentalist, powerfully condemned it in a recent opinion: There arc different ways to look upon the inmates of prisons and jails in the United States in 1995. One way is to look upon them as members of a different species, indeed as a type o f vermin, devoid of human dignity and entitled to no respect... I do not myself consider the 1.5 million inmates of American prisons and jails in that light. This is a non-negligible fraction o f the American population. And it is only the current inmate population. The fraction o f the total population that has spent time in a prison or jail is larger....A substantial number of these prison and jail inmates...have not been convicted o f a crime. They are merely charged with crime, and awaiting trial. Some o f them may actually be innocent. Of the guilty, many are guilty of sumptuary offenses, or o f other victimless crimes uncannily similar to lawful activity (gambling offenses are an example), or of esoteric financial and regulatory offenses (such as violation of the migratory game laws) some of which do not even require a guilty intent It is wrong to break even foolish laws, or wise laws that should carry only civil penalties. It is wrongful to break the law when the lawbreaker is flawed, weak, retarded, unstable, ignorant, brutalized, or profoundly disadvantaged, rather than violent, vicious, or evil to the core. But we should have a realistic conception of the composition of the prison and jail population before deciding that they are scum entitled to nothing better than what a vengeful populace and a resource-starved penal system choose to give them. We must not exaggerate the distance between "us," the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration. 47

Johnson v. Phelan, No. 93-3753, United States Court o f Appeals, Seventh Circuit, 1995 WL 621777 (7th Cir.(Ill.)). 47

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Even though we cannot always grant mercy, we should always be open to it—even disposed toward it—because, at some level, w e all require it and should hope that our repentance might be seen as a ground for it. Annie, in the Oscar Hijuelos story, maintained that "in her opinion the troubles in life were started by people w h o never looked into their own souls."

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A l l o f us

would be well advised to take her advice to heart and, as w e demand repentance o f the criminal, demand it also o f ourselves. If w e find that w e are unwilling or unable to demand it o f ourselves, perhaps w e should conclude that w e have forfeited our right to demand it from the criminal.

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Oscar Hijuelos, Mr. Ives' Christmas, (New York: Harper Collins, 1995). An earlier version of the present essay was presented at a conference on "Repentance" sponsored by The Communitarian Network, and the participants at the conference provided many helpful comments. A highly abbreviated version of the essay, with the title "Crime and Punishment: Where Does Repentance Fit?" was published in their journal The Responsive Community 5 (1995), pp. 15-24. I also received valuable discussion when I presented the essay to the Arizona State University Workshop in Moral, Political and Legal Theory. Andrew Brien, Antony Duff, David Moore and Eleonore Stump were kind enough to read a later draft and provide me with insightful comments. I am extremely grateful to all of these persons and to my two splendid research assistants: Mary Sigler and Bahar Schippel 48

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LEGAL MORALISM AND LIBERALISM The law must protect...the institutions and the community o f ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies. Lord Patrick Devlin

1.

INTRODUCTION

One o f the few benefits o f growing older is that one is offered the opportunity for pleasures o f nostalgia. This conference provides many such pleasures for me. It allows me to return to a university at which I spent many happy and productive years and to honor Joel Feinberg—a man for whom I have great esteem and affection. I am also pleased to have as my commentators two persons for whom I hold similar feelings: Herbert Morris and Jean Hampton. T o Joel Feinberg and Herbert Morris, I also owe debts o f intellectual and personal gratitude, for these two men have both played important roles in my philosophical life—roles that they have perhaps forgotten or of which they were never even aware. In 1965, I was a doctoral student at the University o f Rochester— finishing a dissertation on Kant's moral and political philosophy. During that year, Joel Feinberg read a paper at a departmental colloquium—an early version o f his essay ' T h e Expressive Function o f Punishment." That paper was my first introduction to the philosophy of law, and Joel's presentation on that occasion was so stimulating that I made a mental note that here was a kind o f philosophy that excited me more dramatically than any other kind ever had and that someday, when I could put my Kantian labors on hold,I T w o years later, I was teaching as a visitor at the University o f Michigan. I had by then taught legal philosophy a couple of times at the University o f Minnesota, but I was still a rank amateur at it. Herbert Morris presented a version o f his essay "Persons and Punishment" to the Michigan department and later met with several faculty members at Dick Brandt's apartment. I spoke to Herb at length about my developing interest in the philosophy o f law. As a result o f that conversation, and some equally supportive and

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helpful correspondence, I decided to take a year o f f to study law at U C L A . There Herb Morris taught me, among other things, how to learn and think about the criminal law. M y time at U C L A — i n c l u d i n g many stimulating conversations with Herb and with Dick Wasserstrom—transformed m y intellectual life and future. From then on, legal philosophy was m y dominant interest; and m y approach to the subject was deeply influenced by my U C L A experience. I was present at the birth o f two o f the classic essays in 20th century legal philosophy, and I was inspired and guided by the men w h o wrote them. This conference thus has great personal as well as intellectual meaning for me, and I

2. P H I L O S O P H Y O F L A W C I R C A 1965 What, then, am I going to talk about? Even m y topic, I fear, carries with it the strong aroma o f nostalgia. When I first began teaching the philosophy o f law, one o f the primary topics being discussed—perhaps the main topic—was the issue of legal moralism, an issue that was then often referred to simply as "the Hart-Devlin debate." Should the criminal law be limited, as M i l l and (with qualification) H. L. A . Hart had argued, by the harm principle (the principle that state coercion is justified only to prevent one citizen from violating the rights o f another citizen and in that sense harming him) or could the criminal law in principle be used to enforce any o f the important moral convictions o f the community even if the targeted conduct (e.g., private sexual behavior between consenting adults) was not in any obvious way rights-violative or harmful to others? This latter position, a kind o f communitarianism often called legal moralism, had been defended by the English judge James Fitzjames Stephen in the 19th century and by the English judge Lord Patrick Devlin in 1965. They conceded that there would 1

often be good practical reasons for not using the criminal law to enforce certain moral prohibitions, but they refused to grant that it was ever wrong in principle to do so. Like most good liberals I sided with Hart and Mill

James Fitzjames Stephen, Liberty. Equality. Fraternity (University o f Chicago Press 1991) (1874); Patrick Devlin, the Enforcement of Morals (1965) (containing a revised version of Devlin's 1959 Maccabaean Lecture "The Enforcement of Morals" and his response to Hart and other critics.); H. L. A . Hart, Law, Liberty and Morality (1963). 1

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against Devlin and Stephen and even published a perfectly dreadful and justly forgotten essay on the topic. I believed, along with most o f the people with whom I talked about legal philosophy, that legal moralism had been properly killed off, that liberalism had once again been vindicated against the forces o f superstition and oppression, and that legal philosophy could now move on to new and more important topics. 2

I no longer retain my confidence in the complete victory o f liberalism on this issue. I have now come to believe (perhaps simply as a further sign o f growing older) that the conservative position o f legal moralism retains some philosophical power—that it can, at the very least, pose some serious problems for the liberal theory o f morality and the state. M y remarks are in part prompted by some recent writing by Joel Feinberg on the topic—who apparently also agrees that the issue is not quite as dead as most o f us believed it to be a few years ago—and thus m y paper to honor Feinberg will in part be about Feinberg.

3. A RETURN TO THE HART-DEVLIN DEBATE In 1987 Joel Feinberg published an essay entitled " S o m e Unswept Debris from the Hart-Devlin Debate." A n earlier version o f this essay had been presented at the meetings o f the now defunct Arizona Philosophical Association (where I served as the commentator) and an expanded version was later published as a part o f his book Harmless Wrongdoing, the final volume o f his masterful four volume work The Moral Limits of the Criminal

Law? In his discussion o f the Hart-Devlin debate, Feinberg contrasts two theories o f criminalization: "liberalism" and "legal moralism." Liberalism is the view that "the prevention o f harm or offense to [nonconsenting] parties other than the actor is the only morally legitimate reason for a criminal

I have no intention of citing this essay, since I wish for it to remain in the obscurity to which it has justifiably been consigned. Joel Feinberg, "Some Unswept Debris from the Hart-Devlin Debate" 72 Synthese 249275 (1987); Joel Feinberg, Harmless Wrongdoing, 4 The Moral Limits of the Criminal Law 124-175(1988). 2

3

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p r o h i b i t i o n . " L e g a l m o r a l i s m is the v i e w that it is s o m e t i m e s legitimate to 4

use the criminal l a w to prevent actions s i m p l y because those actions are

"inherently

immoral e v e n if those actions cause no harm or offense to

nonconsenting third

parties.

5

( I am not sure what the phrase " i n h e r e n t l y

i m m o r a l " means, and I w i l l try out various interpretations o f it as I g o a l o n g . ) G i v e n this characterization o f l e g a l m o r a l i s m , I a m not persuaded that L o r d D e v l i n is a legal moralist.'' D e v l i n d o e s spend a great deal o f t i m e arguing in defense o f criminal prohibitions against such activities as oral and anal copulation ( s o d o m y ) and e v e n seems to support the idea that these statutes m a y b e a i m e d specifically at m a l e homosexuals. H i s reason for this, h o w e v e r , d o e s not s e e m to b e that h e regards these activities as inherently i m m o r a l if b y "inherently i m m o r a l " w e m e a n " i m m o r a l o n the basis o f properties o f the act itself rather than o n the basis o f h o w the act is p e r c e i v e d or j u d g e d b y o t h e r s . " Thus D e v l i n might, for all I k n o w , b e prepared to c o n c e d e that it m a y b e difficult to find plausible secular ( a n d thus constitutionally a c c e p t a b l e ) grounds for regarding occasional h o m o s e x u a l s o d o m y 7

b e t w e e n consenting adults as in itself i m m o r a l .

T a k e y o u r f a v o r i t e moral

theory. Occasional homosexual s o d o m y , unlike ( s a y ) occasional torture, does not s e e m disutilitarian. maxim.

It d o e s not s e e m to rest o n a nonuniversalizable

It d o e s not s e e m — a t least in a n y o b v i o u s w a y — t o extinguish the

possibility o f living a virtuous life o f human flourishing—unless, o f course, one draws o n e ' s theory o f virtue and flourishing from a religious s o u r c e .

8

A

life d e v o t e d exclusively to homosexual s o d o m y w o u l d , o f course, get l o w marks on all these moral score cards; but so w o u l d , I suspect, a life d e v o t e d

Joel Feinberg, "Some Unswept Debris from the Hart-Devlin Debate" 72 Synthese 249275 ( 1987). Id. 4

5

A s Feinberg points out in Harmless Wrongdoing, Devlin's exposition of his view is often unclear—leaving the reader uncertain of the exact nature o f his "legal moralism." Feinberg, Harmless Wrongdoing, supra note 3, at 124-25. 6

This worry applies for U.S. law, of course. Devlin, however, lives under a legal system that does not have a constitutional prohibition against the establishment of religion. I do not, by the way, mean to suggest here that it is always easy to draw the secular/religious distinction. The very existence o f natural law theory, for example, suggests that any simple way of attempting to draw the distinction will probably be inadequate. 7

This issue o f sodomy and virtue is actually o f some complexity. I will explore it in a bit more detail later in the paper. 8

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exclusively to any one passion or activity. Thus the person setting out to justify criminalizing consensual sodomy might have a great deal o f difficulty in persuading anyone (not already committed to the view on religious grounds) to adopt the view that such activities are inherently immoral and thus would, I think, find it very difficult—though not impossible—to be a legal moralist on this issue. 9

It is interesting in this regard that Devlin never seeks to show that consensual sodomy is inherently immoral (it is perhaps a strength o f his position that he does not have to try), nor do any o f his critics spend much time in attempting to show that it is not. It seems to be understood that this is simply not the central issue. What then is the central issue? It is, I think, Devlin's conviction (shared by James Fitzjames Stephen, Emil Durkheim and others) that society is bound together, not by moral truth, but simply by shared moral beliefs—however irrational and unenlightened those beliefs may be. Devlin is thus able to construct the following argument: the criminal law is legitimately concerned with the preservation o f society, violations o f a society's shared morality tend (like treason) to undermine society even in cases where these violations have no direct personal victims, and thus the criminal law may legitimately prohibit such violations in those cases where the majority judges this to be a prudent course o f action. Viewed in this way, Devlin is not challenging liberalism but is rather exploiting a tension within liberalism itself—the tension between the value o f individual liberty, on the one hand, and the value of democratic rule toward utilitarian ends on the other. Devlin is not a legal moralist. He is rather a utilitarian, democratic cynic with some controversial empirical views. Utilitarian because he regards social harmfulness, in some very extended sense, as the only factor relevant in

Suppose that many or even most people find that they are repelled or disgusted by homosexuality. It does not follow from this that their repugnance or disgust is moral in nature. That would require a separate argument. One could argue that a majority o f citizens in a democracy have a right to enforce their strong moral convictions but that they do not have a right to enforce all o f their strong convictions (regardless of their basis). Suppose it is true that shared strong moral preferences bind society together, and that for that reason the law may enforce them. Do shared strong aesthetic preferences, for example, bind society together in a similar way? I do not, o f course, mean to suggest that the moral/aesthetic distinction is always easy to draw. 9

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justifying a criminal prohibition. Democratic because he believes that the majority has a right to have its preferences enacted into law absent some compelling reason why they should not be. Cynical because he believes the social importance o f a moral belief is not a function of its truth or reasonableness but is solely a function of its pervasiveness and the degree o f emotional intensity with which it is held. And empirically controversial for this reason: he holds extremely confident beliefs about the extent and depth o f the moral repugnance to sodomy and about the harmful impacts o f challenges to those feelings o f repugnance and he holds these beliefs, so far as I can tell, on the basis of little more than hunches or anecdotal evidence. His belief that private acts o f consensual sodomy tend, like treason, to undermine society seems to Hart to be evidentially on a par with the Emperor Justinian's belief that homosexuality causes earthquakes. I do not think that Devlin's view is quite that silly, but I do think that the presented evidential basis for his v i e w is fairly flimsy. One could make a case for something like his view, however, that would at least be worth discussing. One might, for example, argue that open toleration of the flouting o f sexual norms threatens the honorific position historically accorded the traditional nuclear family and that such a threat risks undermining the social stability generated by such family units. I have no idea to what degree conservative claims o f this nature are true; and, indeed, I tend to be quite skeptical about many of them—particularly skeptical when they are directed against homosexuality, but somewhat less skeptical when they are directed against routine divorce, adultery, and promiscuity. Such claims are not just plain silly, however. They merit a rational response based on a fair weighing o f all available evidence. It is possible, for all I know about ancient science, that Justinian's belief about the causal connection 10

Homosexuality may be a particularly unpersuasive example of sexual conduct that, if tolerated, would threaten family and thus social stability. If homosexual inclinations are mainly a matter of genetics, and if such inclinations tend to occur only in a minority of the population, then toleration here would presumably have less extensive ramifications than if directed toward inclinations more widely shared. It does not strike me as absurd to suggest that the sexual revolution of the sixties, and the resulting freedom men felt to abandon family responsibilities for "self-fulfillment", generated considerable social harm, particularly to women and children. It is much harder to link up homosexuality with this particular piece of social decay, however —unless one thinks that the problem was simply excessive sexual freedom in general and that homosexuality falls under this description. 10

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between homosexuality and earthquakes also deserved a rational response in his own day. It no longer does, o f course. I f I am generally correct in the characterizationI have given o f Devlin's view, then the differences between Devlin and liberals such as John Stuart Mill seem not as interesting as one might have initially thought. Most o f the differences are not on deep issues o f ultimate principle, but rather on issues of empirical evidence o f social harm. And Devlin on these issues seems to rely more on hunches than on solid evidence, a tendency exhibited by many utilitarians.

M i l l ' s own case for freedom, after all, is based largely on

empirical hunches about the long-range social benefits o f freedom, and I am not at all sure that there is overwhelming evidence in support o f his extremely strong views on the matter. It is perhaps worth noting in passing, by the way, that the current A I D S epidemic might provide a prima facie public health and thus purely secular rationale for a legal concern with sodomy, but this would be based on claimed actual harmful effects o f the practice itself—not on harm supposed to flow from challenges to beliefs about the practice—and thus would provide no support for the kind o f view Devlin seeks to defend. In spite o f the shortcomings o f Devlin's own positive views, however, two important issues o f principle that are worthy o f serious thought and reflection can be generated from his negative discussion—his counter-attack against Hart and other liberals who have attacked him.

These issues arise as

consistency challenges to moral and political liberalism—challenges that a rejection o f legal moralism, demanded by liberals in the area o f sexual freedom,

is inconsistent with two other doctrines that many ( i f not all)

liberals hold dear: first, the idea that criminal punishment should be based, at least in part, on the retributive notion o f desert or blameworthiness and, second, the idea that democracy constrained by a set o f fundamental rights is the preferred form o f government.

11

It has often been claimed, by followers

o f Marx and other philosophical radicals, that the ideology o f liberalism is filled with internal contradictions and will eventually explode as a result o f the tensions generated by such conflict. Some o f Devlin's challenges can also be read in this spirit. I will thus spend some time exploring these two

TThefirstisexplicitlydiscussedinDevlin'stext,supra note 1, at 124-39. I am building a discussion of the second from some remarks he makes in passing. 11

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possible inconsistencies or contradictions—contradictions that may beset, i f not all forms o f liberalism, at least liberalism o f a certain common and compelling sort. (It is a kind o f liberalism, for example, that I have found compelling.) The liberalism in question involves the following three claims: ( 1 ) The Harm Principle: Legal coercion is justified only to prevent one citizen from violating the rights o f another. A n y other basis for state coercion—particularly the attempt to promote personal virtue—would itself violate a fundamental moral right o f persons—the right that Ronald Dworkin calls "the right o f moral independence." 12

( 2 ) Retributivism: Punishment should be inflicted, at least in part, on the basis o f desert—on the basis o f the blameworthiness o f the individual criminal. ( A retributivist might call punishments that disregard desert "inherently immoral," the phrase "inherently immoral" now meaning "immoral for nonutilitarian or nonconsequentialist reasons.") ( 3 ) Fundamental Rights Constitutionalism: Democratic rule is o f great importance, but it must sometimes be radically limited i f its exercise would compromise vital liberties. All liberty is important, o f course, but only some liberties are important enough to be protected as fundamental rights at the constitutional level. In what follows I shall be concerned to argue that ( 1 ) — g i v e n certain plausible interpretations—is in tension with both ( 2 ) and ( 3 ) — g i v e n certain plausible interpretations. In short: a person w h o subscribes (for certain reasons) to The Harm Principle may find it difficult consistently to embrace either Retributivism or Fundamental Rights Constitutionalism. Thus any form o f liberalism that would seek to package them together may indeed risk the kind o f deconstruction that radicals like to predict. I shall first address the tensions involving retributivism and then m o v e to a discussion o f the constitutional tensions.

4. PUNISHMENT AND THE LIBERAL STATE A liberal theory o f the state makes liberty and individual rights the primary political values. Can a theory o f this nature consistently endorse a theory o f punishment that approves the use o f state power, not in pursuit o f the

Ronald Dworkin, A Matter of Principle 181-204 and 335-372 (1985).

12

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defensive social goals o f crime control and harm prevention (protection o f rights and liberty), but rather in pursuit o f what may seem a purely moral objective—namely, the assumed good o f retribution, o f having wrongdoers suffer in proper proportion to their desert in some rich and interesting sense o f "desert"? Can it even consistently constrain or limit punishment on the basis o f such values? What do I mean by a rich and interesting sense of desert? For the moment, let me simply tell you whatI regard as an impoverished and uninteresting sense o f the term. If all one means by the claim that a person deserves to suffer punishment is that the person has been convicted o f a crime (i.e., is legally guilty), then of course taking account of desert will be consistent with the harm principle. Indeed, taking account of desert in this sense is no doubt required by the kind o f rule-utilitarianism that is often used to defend the harm principle itself. I f this is all that one means by desert, however, then one is not offering the kind o f retributivism that I seek to examine in this essay. Although some philosophers once maintained that utilitarian and retributive theories could be reconciled by a showing that a practice o f punishing (or telishing) the innocent would be disutilitarian, I am here interested in versions o f retributivism that involve more than the simple demand that the legally innocent should not be intentionally punished. Kant was the kind of retributivist I have in mind. He was one o f the great philosophical defenders o f the liberal state, and yet he claimed that criminal wrongdoers should be made to suffer in proper proportion to their personal moral blameworthiness—what he called their "inner wickedness" (innern Bosartigkeit). Can liberals consistently be retributivists o f this sort? 13

One might think that this question, though perhaps o f historical and abstract theoretical interest, has little relevance to our own system of criminal liability. This thought, however, would be mistaken; for concerns with punishing "inner wickedness" are by no means absent in American law. In many American states, for example, capital murder's mens rea requirement of "malice aforethought", may be implied from recklessness if a killer is said to have the mental state or character defect variously described as "an

Kant's views on punishment are actually more complex and ambiguous than this. Here I am simply picking up on one thread from his various discussions of the topic. See. Jeffrie G. Murphy, "Does Kant Have a Theory of Punishment?", 87 Colum. L. Rev. 509 (1987). 13

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abandoned and wicked heart," "a depraved heart," "a depraved mind," "wickedness o f disposition, hardness o f heart, recklessness o f consequences and a mind regardless o f social duty," "wickedness o f heart or cruelty," or (in the Model Penal C o d e ) "extreme indifference to the value o f human life." Even when a concern with inner wickedness does not find its way into the definition o f the crime, it often arises dramatically when character is considered for purposes o f sentencing—particularly state level capital sentencing where such adjectives as "cruel," "heinous," and "depraved" loom large in characterizing aggravating factors. Prosecuting attorneys, o f course, will also attempt to nudge juries toward conviction by attempting to convince them that the defendant is a very wicked person. Also worth noting here are those criminal statutes—e.g., hate or bias crime statutes that (on at least one interpretation) seek to increase the penalty for certain crimes if those crimes were the product of evil m o t i v e s — e.g., racial hatred. In short: our society, supposedly a liberal society, sometimes does in fact administer punishment in part on the basis o f beliefs about the defendant's inner wickedness. The focus upon such wickedness is no doubt sometimes simply as a predictor o f dangerousness—and is thus consistent with the harm principle—but sometimes it operates with an independent life of its own. The criminal may be punished primarily for breaking the rules, but w e often feel free to give him some additional punishment if w e think he broke the rules because of traits of character w e find loathsome. Is this kind o f retributivism consistent with liberalism or does it represent a departure from liberal values? 14

I think that this is a genuine and important worry. Although some retributivists (e.g., Hegel) are not liberals, a great many—both classic and contemporary—are. I have already mentioned Kant, and many contemporary defenders o f retributivism (e.g.. Herbert Morris, Michael Moore, and some o f my previous selves) argue from a political perspective that strikes me as mainly liberal in nature. Are such writers consistent in their endorsement of retributivism? Lord Devlin, following in the footsteps of James Fitzjames Stephen, thinks not. Mill-inspired liberals condemn, for example, the use o f state power to punish the " v i c e " of homosexuality and tend to ground their condemnation on the claim that it is not the state's business to address matters of personal

14

Joshua Dressier, Understanding Criminal Law 461 (1991).

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vice and virtue. But when these same liberals begin to discuss such matters as the grading o f punishments, their own views o f vice and virtue clearly enter the picture. In his book Harmless Wrongdoing, Joel Feinberg summarizes the Devlin-Stephen challenge in this way: The liberal allows no legitimate role to "the enforcement o f morality as such" in the making of criminal law. The only legitimate function o f criminal law for him is to prevent private and public harms and nuisances. In all consistency then, he should not permit any considerations other than the prevention of harm (and offense) to enter into decisions about the degree of punishment to be assigned to different categories o f crime, and to commissions of the same crime by different offenders under different circumstances. And yet it is our traditional practice, which not even the liberal would wish to alter, to treat greater moral blameworthiness (Stephen's term was "wickedness") as an aggravating factor and lesser moral blameworthiness as a mitigating factor in assigning punishment, a practice impossible to justify on the assumption that the aim of punishment, as of criminal law generally, is simply to prevent harmful behavior. If the makers of criminal law can have no legitimate concern with wrongdoing as such, then neither should judges deciding punishment have any concern with morality independent of harmfulness. 15

The problem here will be particularly dramatic, I think, for those liberals who base their defense o f the harm principle (or something like it), not on its supposed social utility, but upon some more general deontological principle. Ronald Dworkin, for example, at one time argued that the state's refusal to use its coercive power to enforce judgments about the moral merits or demerits o f individuals is definitive o f the liberal state. Liberal governments may o f course make value judgments about rights and interests worthy o f protection. Otherwise liberal governments could not even seek to prevent harm and indeed could have no legal systems at all. A certain kind o f neutrality is mandatory for them, however, if they are to respect the "right to moral independence" that is crucial to the general value o f treating all persons with equal concern and respect. Such governments must, Dworkin claims, "be neutral on what might be called the question o f the good life [and thus] political decisions must be, so far as possible, independent o f any particular 16

l5

Joel Feinberg. Harmless Wrongdoing, supra note 3, at 145.

Ronald Dworkin, A Matter of Principle 181-204 and 335-372 (Harvard University Press 1985). Some of Dworkin's more recent writings suggest that he has to some degree changed his views on these matters. 16

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conception of the good life, or of what gives value to life." The more robust versions of retributivism, however, seem (to put it mildly) to rest on pretty firm judgments about what makes one person more virtuous or vicious than another, and thus one might well wonder if liberal societies may consistently act on such judgments. Liberals such as Mill and Hart do not think that it is legitimate to criminalize homosexuality simply because it is perceived as a vice, and yet they see no problem in punishing particularly vicious criminals more severely than those of greater virtue. Is this not simply an inconsistency? Are not Mill and Hart and Dworkin simply being unprincipled when they claim that the criminal law should be concerned only with harm and not with personal vice and virtue? Is not their so-called principle simply a slogan that they trot out only when it serves their own sexually permissive ideology? 17

In Harmless Wrongdoing, Joel Feinberg explores this charge of inconsistency and argues that, once a few important distinctions are drawn, it can easily be met. In addition to arguing that the liberal may consistently limit criminal harms to wrongful harms (i.e., harms involving grievances or rights violations), he also offers an argument more directly relevant to our present inquiry. 18

Enriching some suggestions of Hart, Feinberg argues that the liberal theory of punishment is a theory about the general justifying aim of punishment—the primary version of the theory being that the general justifying aim is (roughly) the prevention of harm to others. He then argues that it is perfectly consistent to suggest, as the liberal does suggest, that this institutional practice of harm prevention should be governed by fair procedural rules. Thus, if it is unfair to punish people without regard to their moral desert, their personal blameworthiness, then the liberal may consistently preach against this. Feinberg's move here is very creative and goes a long way toward overcoming the claimed inconsistency. Does it totally do the job, however? I must confess that I retain some doubts. It certainly works for those factors (e.g., some mens rea requirements) that Feinberg calls conditions of responsibility. I find it odd, however, even to use the label "procedural fairness" to refer to a concern with blameworthiness—a concern that

Id.at191. Joel Feinberg, Harmless Wrongdoing, supra note 3, at 147-51.

17 18

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Feinberg quite rightly sees as involving motive and character and as thus distinct from responsibility. Also, I suspect that one's sense o f "procedural fairness" is more affected by one's general justifying theory than Feinberg suggests. Fairness involves respecting the rights o f the accused, but one's general justifying theory may play a large role in defining just what those rights will be. O f course i f the harm-reducing system o f criminal law is to function as a system o f rules—as a kind o f price system—it will require taking seriously such issues as whether the actor caused the harm intentionally or knowingly. Thus a preference for a mens rea system over a strict liability system is, I think, not only consistent with liberalism but required by it. Liberalism will indeed require this minimal level o f procedural fairness ( i f one wants to call it that), for a system without this level o f fairness would hardly be a system o f rules at all and would be at least as scary and unpredictable as the state o f nature. 19

A mens rea requirement o f intention or knowledge as a condition o f responsibility, however, is a far cry from a requirement for moral culpability or blameworthiness in a rich retributive sense; and thus i f the liberal has a fondness for the latter he may indeed be bordering on inconsistency. It is o f course analytic that i f one aim o f punishment is to express moral blame o f those w h o are truly blameworthy, then a procedure will not be deemed fair if it fails to capture moral blameworthiness. But Feinberg is far more confident than I am that his well-known "expressive theory o f punishment" can consistently be embraced in full by liberals—that they can happily embrace his claim in Harmless Wrongdoing that "the criminal law is a great moral machine stamping stigmata on its products." Liberals can no doubt 20

Even using the phrase "procedural fairness" to refer to conditions of responsibility strikes me as a bit odd. Strict liability is certainly unfair, but procedurally unfair? The unfairness of strict liability, even in a harm preventing system, strikes me as involving the unfairness of holding people to rules to which they lack substantial capacity to conform—something to be avoided, through mens rea requirements, in any just system of substantive criminal law. A system that fails to take account of motives or character, however, may also be criticized—but on grounds of unfairness? It will, o f course, be unfair—perhaps even procedurally unfair—to ignore these factors in a system that claims to target them rather than mere harm. The legitimacy of such targeting is the very point of the debate, however—a debate obscured rather than illuminated by the suggestion that its resolution will emerge from a consideration o f the value of fairness. 19

Joel Feinberg, Harmless Wrongdoing, supra note 3, at 150.

20

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consistently approve o f different degrees of stigma for different degrees o f harm, but it is by no means clear that they can consistently approve o f different degrees o f stigma for different degrees o f blameworthiness with respect to motive and character. Feinberg does not always seem to realize that his endorsement o f the expressive theory of punishment may not simply be a constraint on a harm-based theory but rather an endorsement o f a new general justifying aim o f punishment—one whose consistency with the harm principle is not so obvious. Thus I am inclined to think that the StephenDevlin challenge remains to some degree unanswered. 21

Feinberg himself makes it very clear that he has no sympathy with the view that the criminal law may be used to aggravate punishment on the basis o f vices of character that are unrelated to any actions that might be a legitimate object o f criminalization in a harm-preventing system. " T h e liberal would [indeed] be inconsistent," he argues, if he defended a rule making lascivious motivation an aggravating condition in the commission of crimes while staunchly opposing legislation creating independent crimes of lasciviousness....(He] must not permit the types of blameworthiness which he excludes at the legislative level to sneak in the back door at the sentencing level (and thus] may use the criminal law to promote...only those virtues that consist in the disposition to respect and promote the rights of others. 22

I agree with Feinberg that punishing for character defects unrelated to possible harm is inconsistent with liberalism; but, unlike Feinberg, I am not yet persuaded that liberalism may consistently target character even i f it limits itself in the way Feinberg suggests. I f such character defects as a callous disregard for human life are a legitimate target at the sentencing level, then it would seem that there would be nothing wrong in principle with targeting them before they are realized in action; and yet most liberals, I

Hart, in his discussion of the grading of punishments and the moral judgments of denunciation expressed by such grading, trades on an ambiguity that may tempt Feinberg as well. Hart, supra note 1, at 36-37. He does not seem to see the difference between adjusting punishment in accord with the gravity of the offense and adjusting punishment in accord with the wickedness of the offender. The former surely is compatible with liberalism, but it is not at all clear that the latter is. 21

Feinberg, "Some Unswept Debris from the Han-Devlin Debate," supra note 3, at 259-

22

260.

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think, would regard such early intervention as wrong in principle and not simply as unwise policy. A l s o , suppose people manifesting a certain kind o f stupidity or carelessness posed exactly the same threat o f harm as people manifesting a certain kind of malice. Most retributivists would, I think, argue for punishing persons in the second category more severely because they are worse people. Is this kind o f retributivism consistent with liberalism? I have argued elsewhere that versions of retributivism that are based on the Principle o f Fairness (e.g., the version presented by Herbert Morris in "Persons and Punishment" ) face many serious problems but at least are consistent with a liberal theory o f the state. Those robust versions o f retributivism that involve deep notions o f blameworthiness, however, probably are not. Michael Moore, for example, wishes to base punishment in part on the offender's attitude toward his own wrongdoing—increasing punishment if the offender is unrepentant or unremorseful, lacking (as Moore puts it) the "virtue o f feeling guilty." This account, however, will be hard to reconcile with certain forms o f liberalism, since it is not implausible to argue that a right o f moral independence would include a right to be morally shallow, hard o f heart, or unrepentant. It seems, then, that the liberal must either abandon robust retributivist commitments (which some liberals will no doubt be happy to do but which many will not) or modify liberalism itself—hoping that the modifications made in liberalism will not make it unrecognizable as liberalism. 23

24

25

Let me put the point another way. It is now common to distinguish between Dworkinian neutrality liberalism and Razian perfectionist liberalism—the latter, unlike the former, employing some idea o f the good

Herbert Morris, "Persons and Punishment" 52 The Monist 475-501 (1968). See my "The State's Interest in Retribution." Journal of Contemporary Legal Issues, Spring, 1994. In recent years. I have come to have some serious doubts about the strong versions of retributivism that I was once inclined to defend. I have expressed some of these doubts in the forthcoming essay noted above and also in my "Cognitive and Moral Obstacles to Imputation", Jahrbuch Fur Recht und Ethik 67-79, Band 2 (1994). See also my "Retributivism, Moral Education and the Liberal State" 4 Crim. Just. Ethics 3-11 (1985). reprinted in Jeffrie G. Murphy, Retribution Reconsidered 15 (1992). 23

24

Michael Moore. '"The Moral Worth o f Retribution" in Responsibility, Character and the Emotions 179-219 (Ferdinand Schoeman ed., 1987). 25

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or virtuous life in order to generate its theory o f liberty.

26

Neutrality liberals

cannot consistently e m b r a c e strong forms o f retributivism. liberals perhaps c a n .

27

Perfectionist

But then perfectionist liberals w o u l d s e e m to be barred

from arguing against the criminalization o f s o d o m y o n the grounds that the state has n o business concerning itself w i t h matters o f personal v i c e and virtue. Thus these liberals may have to consider abandoning strong v e r s i o n s o f T h e Harm Principles—a principle that many w o u l d regard as a cornerstone o f liberal doctrine. T h i s is an issue I w i l l e x p l o r e m o r e fully as I n o w m o v e to a discussion o f legal moralism and the liberal theory o f fundamental rights.

5. POPULAR SOVEREIGNTY, FUNDAMENTAL RIGHTS, AND THE HUMAN GOOD I f one is c o m m i t t e d to d e m o c r a c y as a form o f g o v e r n m e n t (as both D e v l i n and M i l l

a r e ) then one seems to b e c o m m i t t e d

to the ratification

of

majoritarian preference absent s o m e c o m p e l l i n g reason w h y it should not be ratified. Thus w h y should not a majority preference against s o d o m y ( i f there is o n e ) b e ratified? T h e o n l y w a y to block this m o v e is, I think, to show that s o m e fundamental (perhaps constitutional) right w o u l d be encumbered b y letting the majority have its w a y on this matter—as it w o u l d , for example, i f the majority wanted to preserve its shared morality by silencing free speech on s o d o m y and j a i l i n g those w h o publicly sing the praises o f these practices.

Surely the public

a d v o c a c y o f s o d o m y tends to undermine s o c i e t y ' s shared c o n v i c t i o n s o n these matters far m o r e e f f e c t i v e l y than d o e s a private act o f s o d o m y , and yet e v e n D e v l i n is reluctant to prohibit the former because h e s e e m s to b e l i e v e that a fundamental right o f speech is i n v o l v e d .

28

H e must thus b e assuming

For a rich discussion of various forms o f liberalism and their bearing on theories of punishment, see Jean Hampton's essay "Retribution and the Liberal State" J. Contemp. Legal Issues, Spring, 1994. See also Joseph Raz. the Morality of Freedom ( 1986); and Vinit Haksar. Equality, Liberty and Perfectionism ( 1979). 26

27

Moore is probably best interpreted as a perfectionist liberal.

Devlin never talks explicitly about fundamental rights as limiting democratic rule. I draw the conclusion that he holds that there are such rights, however, from some things he says about the free exercise o f religion and from his claim that an environment of open 28

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that when people are forbidden by the state from acting out their sexual preferences that this is comparatively trivial (perhaps like being forbidden to collect stamps or pursue some other form o f recreation) and thus does not raise important constitutional issues or issues o f fundamental rights in the way that curtailment o f speech does. But this is controversial and one would like to see it argued. It is perhaps true that liberals like to talk more than they like to immerse themselves in the high seas o f erotic adventure, and this perhaps explains in part why the liberal's favorite sexual topic has been obscenity (which is largely talking about or otherwise portraying sex) and why On Liberty is a great free speech classic but not, except perhaps indirectly, a classic o f sexual liberation. But surely the issues deserve more profound reflection than this. N o one would think o f having theoretical views on the rights o f free speech without having developed accounts o f the social and personal nature and importance o f speech. And yet nobody involved in the Hart-Devlin debate has seemed to think it important to bring to bear on the discussion any theories o f sexuality—its social and personal nature and importance.

(Even given a

reasonable fear about A I D S , one should not recommend measures against homosexual activity without a clear conception o f just what a person is being asked to give up i f he is in effect being asked to g i v e up the expression, even in private, o f his sexuality. Is this like giving up the freedom to pursue a hobby? Or is it more like giving up free speech or free exercise o f one's religion?) The core issue is the criminalization o f sodomy and everyone manages to discuss this without discussing sodomy, or even sexuality, in any detail. W e l l , actually, not everyone.

Here the justices o f the United States

Supreme Court have managed to do a better j o b than the professional philosophers.

In Bowers v. Hardwick,

29

the leading homosexual sodomy

case, the justices on both sides in effect write philosophical essays on the nature and value o f homosexual sodomy as an example o f sexual liberty. T h e y all seem to recognize that i f sexual freedom is to be recognized as a fundamental right, it will not be because o f its social or political value. Free

discussion will give those who think of themselves as advanced thinkers on such issues as homosexuality an opportunity to change the shared morality that, before it is changed, may justify criminal prohibitions of what it condemns. Bowers v. Hardwick, 478 U.S. 186 (1986). 29

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speech may be necessary for the proper workings o f representative

democ-

racy, but sexual freedom is not. Thus if sexual freedom is to have fundamental rights status, it will have to be primarily because o f its value or meaning to the individual, not to society. In this it will be like religious

freedom,

protected in large measure because o f the role that religion plays in giving genuine meaning to the lives o f those persons w h o are religious. To

oversimplify

a complex

case, the essence

o f the

30

philosophical

disagreement between the majority and dissenting justices in Bowers v. Hardwick was this: the majority refused to regard general sexual freedom as a fundamental right because it saw no social or political value in sexual freedom outside o f marriage or reproductive possibility and could not see such freedom playing a role in the lives o f individuals comparable to the role of, say, religious practice.

They saw it essentially as (at best) recreational

amusement or (at worst) perversion, and they refused to force Georgia to show a compelling interest before encumbering what is at best someone's recreational amusements.

The dissenting justices, on the other hand, while

making no effort to argue for sexual

freedom's

social or political value,

seemed to see sexual freedom as analogous to religious freedom in at least this way: it often forms a part o f the very fabric o f meaning and worth in an individual human life. Often it is not simply a recreational amusement but

The analogy with free exercise of religion is, for better or worse, mine. It does not occur in any of the opinions in Bowers v. Hardwick. I use it simply as an example o f a liberty that is worth protecting, not primarily because of its social and political benefits, but because of its genuine value to those individuals who would exercise it. I use the phrases "genuine meaning" and "genuine value" because I have in mind an objective standard here. To protect religion as a fundamental right requires, in my view, that religion actually is an important human good—not merely (hat many people take a kind o f personal satisfaction in being religious. (Religion is not protected because it is a great hobby.) I would argue in a similar way about sexual freedom—that those forms o f it worth protecting at the level o f fundamental rights must be defended as a part of a genuinely good, and not merely satisfying, human life. I think that it is a serious business for the state to interfere with human satisfaction in any form, and thus I would want to require that the state have a good reason to justify such interference. I would not. however, wish to impose upon the state the extreme burdens of compelling state interest/least restrictive means unless a right identified as fundamental is being encumbered. I would save this test for liberties o f the deepest importance. 30

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is rather a part o f what is involved in participating in those relationships that are among the crowning glories o f human existence—relationships o f love and personal intimacy.

To ask one to give this up should, they argued,

require a compelling state interest. Liberals tended to celebrate the opinions written by the dissenting justices, but was this celebration really consistent with their liberalism? The dissenting justices did not reason in the manner of Mill. They did not argue that sexual freedom is simply freedom and that it, like any other freedom or liberty, deserves fundamental rights status so long as it does no harm to others. Rather they suggested (whether rightly or wrongly) that sexual freedom is special, a liberty worthy o f special protection as a fundamental right, because it often forms a part o f meaningful, virtuous, or—in short—good human lives.

31

This approach would not seem to sit very well with neutrality liberals,

and thus only perfectionist liberals would have any tendency to find it congenial. Even perfectionist liberals will have to pay a price, o f course, i f they accept this pattern o f reasoning as a part o f their liberalism. The price will be that of having to listen to and take seriously arguments that certain liberties—recreational drug use or pornography consumption, perhaps—are not worthy o f protection because they involve tendencies toward vice, tendencies toward bad or degraded or insufficiently human ways o f living. They will even have to consider such arguments on the issue o f homosexual behavior i f those who offer them can put them (as perhaps they can) in terms that are sufficiently secular to avoid constitutional problems.

32

And once the

Note the difference with Texas v. Johnson, 491 U.S. 397 (1989). In this flag burning case, several justices who upheld Johnson's right to bum a United States flag made it quite clear that they believed that Johnson's behavior was loathsome. They certainly did not conceptualize it as a part o f a good life. 31

In Sexual Desire, Roger Scruton argues that male homosexuality is perverted (in the sense of incomplete or deficient) because it fails to embrace the mystery andrisko f coming to terms with someone who, since of a different gender, is totally other. Roger Scruton, Sexual Desire (1986). There is, of course, no necessary disutility or rights violation in conduct that is perverted in this sense, and thus theories of rights or justice or utility would see such perversion as morally irrelevant. Theories of virtue, however, might regard it as highly relevant. I mention Scruton here not because I agree with him (I am by no means sure I even understand him) but simply to illustrate the possibility of having a debate on the virtue of homosexuality that is not based on religious dogma. 32

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Character, Liberty, and L a w virtue/vice arguments are weighed fairly, it is not obvious that all o f the liberties that liberals traditionally have wished to protect will survive intact. On the other hand, immediate rejoicing from conservatives would be quite premature here. Simply agreeing with conservatives that one might have to argue about issues o f virtue and vice in developing a theory o f fundamental rights in no sense commits one to the particular list o f virtues that conservatives enjoy celebrating. It is possible that some o f the pagan virtues will win out over some o f the Christian ones, it is even possible that homosexuality may plausibly be conceptualized, not merely as an instance o f a freedom to be tolerated, but as a form o f virtuous living to be respected and even admired. A t the moment, the political theory o f virtue is owned mainly by conservatives and religious sectarians—an ownership that many liberals have been happy to concede while they have fought under the banners o f neutrality and The Harm Principle. Once they enter this unaccustomed arena, however, and start to hold up as models o f virtue such persons as (say) Walt Whitman, it is hard to predict how the discussion might g o . M y only point here is that w e need to have this discussion and that liberals, if they want to protect a list of rights as truly fundamental, should stop resisting it. In summary: Many liberals like to rank liberties on a scale o f importance—some o f only minor importance (and thus worthy o f only minimal protection) and others o f such fundamental importance that the state should be required to show a compelling interest before encumbering them. Can an acceptable liberal list o f fundamental liberties be constructed that does not draw on an account o f human good or virtue—or, at the very least, on some idea o f what is truly important in a human life? I suspect that the answer to this question is no. Some liberties may be defended as fundamental simply because they are instrumental to free and democratic political institutions—e.g., freedom o f political speech may be defended in this way. Other liberties, however—non-political speech, free exercise o f religion, sexual liberty—cannot be defended in this way but must instead draw on some account o f the good. (Here, at least, the right is not prior to the good.) Once liberals acknowledge the dependence o f certain fundamental liberties on an 33

I have argued that Kant, in his essay "Theory and Practice" held this view about the free exercise o f religion. See my "Kant on Theory and Practice" Nomos 36, edited by Ian Shapiro and Judith Wagner DeCew, New York University Press, 1995. 33

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account o f the good, however, they must be prepared to argue in the arena o f the good not their accustomed arena. Once in this arena, they might be able to g i v e some of their favorite liberties a better defense than ever before. They should also prepare, however, for the surprise o f seeing the demise o f some o f their previously cherished commitments. One cherished commitment that might be vulnerable is T h e Harm Principle itself. Although there may be practical reasons that will often w e i g h against the state seeking to promote virtue, what reason of principle would require society to limit its coercive powers to preventing rights

violations when those rights themselves get their nature and importance from some human good they seek to protect? I see no clear reason. 6.

CONCLUSION

Devlin and Stephen have many positive conservative views about the proper organization of society, and it has been no part of my project here to defend any of those views. I certainly have no interest here in defending the criminalization o f homosexual sodomy. I have rather been concerned with the challenges o f inconsistency or hypocrisy that Devlin and Stephen raise against liberalism the challenge that certain principles invoked by liberals against them, particularly The Harm Principle, would, i f applied fairly and uniformly, undermine some o f the cherished doctrines o f liberalism itself. I have particularly been concerned with the tensions between The Harm Principle and two other principles: the Retributive Principle that moral blameworthiness is relevant to setting degrees o f punishment and the principle (Fundamental Rights Constitutionalism) that some few liberties are so much more important than others that they deserve special protection at the constitutional level. Both of these principles, I have argued, require that the state regard it as part o f its legitimate business to concern itself with the human good -with matters o f personal vice and virtue. Finally, I have argued that once the state recognizes such a concern as legitimate, there are no longer any clear reasons o f principle why the state should accept the constraints upon its powers imposed by The Harm Principle. It might be argued that the state should accept The Harm Principle as a matter o f prudence or because o f rule-utilitarian considerations. But who has the relevant evidence here, and—if w e did have it—would it really support Mill's

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strong form o f The Harm Principle? I am by no means confident that it would. Liberals may thus be faced with some unpleasant choices, for it looks as though some important liberal principles may have to be abandoned or modified i f consistency is to be preserved. N o t all liberals w i l l agree on which principles to sacrifice first, of course, and thus different forms of liberalism will no doubt emerge as a result o f the choices made. 34

Exploring the details and relative plausibility o f these various forms o f liberalism would require another paper, and thus I shall here conclude the present essay simply by siding with Devlin and Stephen on one modest but important point: on any social issue as complicated as determining the proper scope o f the criminal law, it is probably irrational to hope that T h e Harm Principle, or any other "simple principle," will allow us to draw a bright line between what is and what is not the state's legitimate business. Skepticism over simplicity is usually in order, and I see no grounds for an exception here.

APPENDIX: REJOINDER TO PROFESSORS HAMPTON AND MORRIS

35

I am grateful to Professors Hampton and Morris for sending their comments to me in advance o f the conference. This gave me, alas, a chance to lament large portions o f my paper; but it could have been much worse. The last time that Professors Hampton and Morris subjected my work to public commen-

Hart, for example, wants to supplement the harm principle with a principle of justified paternalism. Hart, supra note 1. at 30-34. Paternalism, o f course, is coercing a person for his own good, and it is difficult to see (as Devlin points out) how Hart could develop a concept of a person's "own good" that did not draw upon the very non-neutral conceptions of the morally good or virtuous life that Han seeks to oppose in other contexts. See also the rich accounts of punishment developed in Herbert Morris, " A Paternalistic Theory of Punishment" 18 Am. Phil. Q. 263 (1981), and Jean Hampton "The Moral Education Theory of Punishment" 13 Phil Pub. Affairs 208 (1984). As I have argued in "Retributivism, Moral Education and the Liberal State" supra note 24, I think that Morris and Hampton are on to some very important insights in these essays. What is not so clear to me, however, is the degree to which these insights are compatible with political liberalism. 34

This rejoinder is responsive to the comments as presented at the conference by Professors Hampton and Morris. 35

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tary (in that case a lecture on forgiveness and resentment), they tacitly suggested— quite rightly I fear—that my philosophical views probably grew out o f certain defects in my character, specifically a lack o f trust and generosity o f spirit. This time they charge me solely with intellectual errors; and, although I do not much like being charged with intellectual errors, I am very glad that they note no signs o f further moral decay on my part. Speaking more seriously: Both Hampton and Morris have offered a rich and complex set o f comments, far more than I could adequately address in the short space allowed. I will simply try to indicate very briefly why, in spite o f all their insights, I am still not ready to concede total defeat in my attempt to expose certain tensions within liberalism. Both o f my commentators focus solely on the section o f my paper dealing with retribution, assuming no doubt that the flaws in the final section speak for themselves. ThusI too will speak here only about retribution. Let me sketch again the nature o f my project: For most o f my careerI have been perplexed about the moral justification o f criminal punishment. A few years ago, however, I began to worry about punishment, not simply as a moral issue, but as an issue in political philosophy. Specifically, I began to worry that the retributive account o f punishment to which I was drawn on moral grounds might not be consistent with the generally liberal theory o f the state to which I was also drawn. The same tension I was feeling was, I thought, present i n — i f not consciously experienced by—Kant. For Kant defended a general theory o f the state that seemed to limit its proper role to the protection o f rights—what he called the domain o f external freedom—and yet advocated (at least sometimes) an account o f punishment that aimed, like God's very own cosmic justice, at giving wrongdoers the level o f suffering merited by what he called their inner wickedness, making sure that they received the pain that they deserved and no happiness o f which they were unworthy. That Kant was pulled in both o f these directions kept me from being too embarrassed to feel comparable pulls (what better philosophical company could one possibly have, after all?); and I even thought that I had a kindred spirit in some o f Professor Michael M o o r e ' s writings on punishment—for Moore had argued at the close o f his important essay " T h e Moral Worth o f Retribution" that, if he believed in G o d , he might not demand that the state administer retributive punishment— thereby ( I think) revealing that he too, like Kant and Murphy, saw some affinities between

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secular punishment and the moral objective hoped for in the old theological idea o f divine retribution. W h y am I sharing with you this piece o f my own autobiography? The answer is that I am assuming that others may share this tension in their own outlooks on punishment—this tension between the moral and the political—and might find my explorations o f this tension o f some interest and use. M y paper is thus written for kindred spirits feeling kindred tensions. Professor Hampton is manifestly not a kindred spirit here. She seems to think that all that I have shown is that i f one subscribes to an uncommonly silly view o f retribution and an uncommonly silly view o f liberalism, then a tension is present. The solution to a tension generated by silly views, o f course, as she rightly points out, is not to labor to resolve the tension, but simply to give up the silly views that generate it. Let me first focus on what she has to say about liberalism as I characterize it. (I agree with Hampton, by the way, that the label "liberalism" has perhaps outlived its philosophical usefulness, but I continue to use the term here because I am commenting on writers—Dworkin, Devlin, Hart, and Feinberg—who make its use central to their own expositions.) I am a latecomer to contemporary political philosophy and am happy to be instructed in the discipline by those more expert than I, as Professor Hampton surely is. On this particular issue, however, I think that Hampton has failed to instruct me because she has failed to understand m e — even failed to understand one o f the crucial liberal doctrines that she criticizes as unworthy o f serious consideration. This is Dworkin's doctrine o f neutrality. Hampton is quite right to focus on this doctrine as essential to the development o f my argument. Having little sympathy with utilitarianism, I have little interest in defenses o f the Harm Principle that are—like Mill's—utilitarian in nature. Thus I want something o f a Kantian nature—a defense grounded in principle rather than policy—and Dworkin's principle of liberal neutrality, generated from what he calls "the right o f moral independence," struck me as a plausible ground to consider. Wrong, says Hampton. Liberalism cannot accept the neutrality principle; indeed no sane political theory can accept it. W h y ? Because, as Hampton argues at some length, the liberal state (like any state) must make value judgments about what rights and interests are worthy o f protection, is thus deeply engaged in a moral endeavor, and thus cannot subscribe to a principle of value neutrality. From these claims, with which I would not quarrel since

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they strike me as falling within that category John Cleese once called "the bleeding obvious," she draws the following conclusion: Dworkin's neutrality principle is too silly to take seriously as a foundation o f liberalism or any other viable political theory and thus I should never have been tempted by it in the first place. But is this not simply a misunderstanding o f Dworkin's neutrality principle and the use to which I put that principle in my paper? Dworkin manifestly does not say that liberalism must be neutral about all values but only about questions of personal virtue or the good life. Let me quote from my essay: Liberal governments may of course make value judgments about rights and interests worthy of protection. Otherwise liberal governments could not even seek to prevent harm and indeed could have no legal systems at all. A certain kind of neutrality is [according to Dworkin] mandatory for them, however, if they are to respect the "right o f moral independence" that is crucial to the general value o f treating all persons with equal concern and respect. Such governments must, Dworkin claims, "be neutral on what might be called the question of the good life [and thus] political decisions must be, so far as possible, independent of any particular conception o f the good life, or of what gives value to life." The more robust versions of retributivism, however, seem (to put it mildly) to rest on pretty firm judgments about what makes one person more virtuous than another, and thus one might well wonder if liberal societies may consistently act on such judgments. 36

Dworkin's own version o f the neutrality principle faces some serious and perhaps fatal problems—some o f them raised in the final section o f my paper— but the principle is not just silly. The neutrality principle rejected by Hampton is silly, but it is not Dworkin's and it is not mine. Hampton has extremely rich and interesting things to say about Rawls's version o f a neutrality principle, but that also is not Dworkin's and not mine. Perhaps there are too many senses o f the term "neutrality" around, and thus perhaps it—like "liberalism"—is another term that may have outlived its philosophical usefulness. What about my version o f retributivism? Is it also too silly to take seriously? Part o f my project was to explore various senses o f retributive desert in order to find out what sense or senses o f retribution my liberalism

Supra, page 9 9 .

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would allow me to retain. I noted five senses o f desert: desert as legal guilt, desert as involving mens rea, desert as involving responsibility (capacity to conform conduct to the rules), desert as a debt owed to annul wrongful gains from freeriding (the Morris theory), and, finally, desert as involving ultimate character— "wickedness" in some deep sense. I argued that the first four calls the "terror" that would be present i f w e abandoned all notions o f retributive desert), but I also argued that the fifth may not be compatible with liberalism. But is the fifth, the idea o f targeting deep character in sentencing, just silly? I do not think that it is; and indeed I am inclined to join Kant in thinking that one tempting (though hardly conclusive) moral reason for believing in G o d is the hope for a being w h o will eventually apportion out pain and happiness in accord with true merit or worth. I have, however, recently

expressed the view (in "Cognitive

and Moral

Imputation") that such strong retributive objectives unacceptable for human beings to pursue.

Obstacles to

may be morally

Thus I am now tempted to

abandon them, insist that sentencing judges do likewise, and thereby save my view o f liberalism from this particular tension. It took me a lot o f reflection 37

to get to this point, however, and so I hope that the view I now reject was not just obviously silly in the first place.

Let me now move briefly to Professor Morris's characteristically profound remarks. He believes that my paper proceeds more by free-association than logical development, that I tend to collapse together claims that are actually quite distinct and with radically different degrees o f plausibility, and that my ultimate concerns are far afield o f the Hart-Devlin debate in which I try to locate them. I must confess that I think that he is to some degree right about this, so what can I say but mea culpa? Where I remain unpersuaded is where Morris joins with Hampton in arguing that I fail to see that Joel Feinberg's fairness-based attempt to resolve the apparent inconsistency between liberalism and retribution does in fact succeed—succeeds not just to the substantial degree that I admit but succeeds all the way down.

See also my forthcoming essay "Moral Epistemology, The Retributive Emotions, and the 'Clumsy Moral Philosophy' of Jesus Christ" The tension I cannot resolve is that explored in the section of the paper dealing with fundamental rights. 37

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Both Morris and Hampton remind us that Feinberg limits the scope o f the criminal law to what he calls grievance morality, and that, within the constraints o f such morality, fairness is not only consistent with but demands that wrongdoers be punished in proportion to their blameworthy character so long as blameworthy character is understood in such a w a y that it is limited to "dispositions to feel and act in ways condemned by grievance morality" or "dispositions to violate the rights o f others." Morris writes: " T w o individuals, both first-degree murderers, might differ significantly in their degree o f blameworthiness—say a contract killer and a mercy killer. It confounds moral judgment and offends our notions o f fairness to punish them equally." H e then says this about remorse and repentance: " A repentant person at the time o f punishment is less blameworthy than an unrepentant o n e " and this should "earn the criminal points, for a downward departure [in severity o f sentence]." A n d finally he writes: "Degrees o f blameworthiness, as taken into account by the law and treated as relevant in sentencing determinations, reflect degrees o f commitment to the legal norms." I find all o f this problematic. I grant the importance o f grievance morality at the core o f the criminal law, and see no problem in analyzing the Harm Principle in terms o f grievances or rights violations. I also grant the importance o f punishment as a kind o f debt owed to one's fellow citizens—a model brilliantly explicated in Morris's essay "Persons and Punishment" in terms o f annulling the wrongful gain that the criminal gets by freeriding on a mutually beneficial scheme o f social cooperation. What I still do not see, however, is how this helps in justifying the targeting o f deep character, even at the sentencing level. I f I am maimed unjustly, I do indeed have a grievance. But is my grievance greater i f I am maimed by a botched attempt to kill me for profit instead o f by a botched attempt to meddle in my life for more altruistic reasons? Is my grievance any less i f my assaulter finds Jesus, repents, and thereby improves his moral character? ( H e may be less evil, but is my own grievance any less?) And in what way is the altruistic meddler, to use Morris's language, "more committed to the relevant legal norms" than the contract killer? A n d why does the altruistic meddler o w e less o f a debt to society for violating its norms than the killer motivated by greed? A n d i f the concept o f blameworthiness demanded is, as Morris says, a "disposition to 38

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Herbert Morris supra note 23.

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violate the rights o f others" or a "disposition to violate the rules o f grievance morality," d o not both o f these individuals have exactly that very same disposition (although for different motives) and thus merit the same punishment? Hampton, defending Feinberg in a manner similar to that developed by Morris, insists that "what makes a state liberal...is its rejection o f the idea that any enforcement o f moral behavior should include punishment o f immoral behavior which nonetheless has no victim other than the offender himself." But i f a sentencing judge, after giving the criminal a punishment properly proportional to the injury he has inflicted, adds on a little extra punishment because o f the defendant's vicious character—his smug unrepentance, say—is that not simply to punish him for an aspect o f his character that has no victim? If so, is not the liberal w h o approves this inconsistent when he crusades against using the criminal law against victimless immorality? The fact that I have the formidable forces o f Feinberg, Hampton and Morris all aligned against me on this issue makes me feel a deep anxiety that there is something important that I am missing. One thing I certainly am not missing, however, is the platitude that we must distinguish between issues o f justifying aim and issues o f procedural distribution with respect to punishment. O f course I see that and did not need my commentators to remind me of it. What I do not see is how that distinction along with some simple notion of fairness can be used to overcome all o f the tensions I find in the sentencing practices current in liberal societies and apparently approved o f by many liberal theorists. Imagine a system o f punishment that exists to protect rights by enforcing a system o f rules that prohibits rights violations. T o be fair, this system must punish only those w h o have a fair opportunity to conform their conduct to those rules and thus must operate according to procedures that require legal guilt, mens rea (at least negligence), and such conditions o f responsibility as voluntary behavior and sanity. If it does all this, it seems to me that it has satisfied all demands that could reasonably be conceptualized under the heading o f "procedural fairness." A s presently specified, the system fails to target certain aspects o f character that some liberals ( M o o r e and Morris, for example) think it appropriate for judges to target at the level o f sentencing—e.g., an absence o f remorse and repentance. A failure to target these aspects o f character may be deplorable for many reasons, but what is unfair about it? O f course it is always unfair to ignore a relevant differentiating

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characteristic, but in what sense is this a relevant differentiating characteristic in the liberal system here specified? It would, of course, be unfair to ignore such factors in a system that exists to target them in addition to targeting the responsible creation of grievances. The legitimacy of such targeting is the very point of the debate, however—a debate obscured rather than illuminated by the suggestion that its resolution will emerge from a consideration of the value of fairness in procedure. 39

Thisessaywasprepared for presentation at a conference honoring Joel Feinberg held dedicate the essay to him with esteem and affection. My commentators were Jean Hampton and Herbert Morris. I had hoped to revise the paper in the light o f their comments and the comments of others who were kind enough to read and discuss the paper with me. Unfortunately, I can see no way to make extensive changes in the paper that would not undercut the essays by my two commentators—essays that will also appear in the memorial issue. Thus I see no fair course except to publish here the paper pretty much as it was presented at the conference, making only those changes that, in my judgment, could not have a bearing on the essays by Professors Hampton and Morris. I received very helpful comments from the members of the Arizona State University Moral, Political and Legal Philosophy Discussion Group and from Professor Robert P. George o f Princeton University. Some o f these persons made comments that deserved treatment in the paper, and I hope that they will realize that my failure to deal with them is not based on a failure to appreciate their merits but rather on the logistical problems outlined above. They will no doubt see their influence in my future work. Even in the present version, the influence of Robert George is obvious. His hook. Making Men Moral Civil Liberties and Public Morality (1993), and the comments he made on this essay have, I must admit, increased my nervousness about my commitments to liberalism. 39

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FREEDOM OF EXPRESSION AND THE ARTS Everything is what it is, and not another thing. Bishop Butler W e have Art in order that w e may not perish from Truth. Friedrich Nietzsche 1.

KULTURKAMPF

In early 1996 the Phoenix Art Museum displayed the exhibit " O l d Glory: The American Flag in Contemporary A r t . " This exhibit produced a truly astounding amount of public controversy—most o f it quite shrill—and even led some members o f the Phoenix City Council to consider withdrawing financial support from the museum. Kate Millett's 1970 " T h e American Dream Goes to Pot" (an American flag in a toilet b o w l ) and Dread Scott's 1988 "What is the Proper W a y to Display the U.S. F l a g ? " (an American flag positioned on the floor so that people might walk on it) were the objects most under discussion. Thus did Kulturkampf (culture war) finally come to Arizona—Millett and Scott doing here what in other locales had earlier been done by Robert Mapplethorpe's " X Portfolio," Andres Serrano's "Piss Christ," performance artist Karen Finley's chocolate-smeared naked body, and the song lyrics of the rap group T w o L i v e Crew. During the period of the exhibit, enormous media coverage was given to representatives o f the American Legion and other veterans groups (including some rather colorful bikers), and most o f their comments were quite predictable—deploring the desecration of this important symbol (a view that I shared) and asking that public funds be withdrawn from the museum unless the exhibit was shut down (a view that I did not share). N o surprises here. What did surprise me, however, were the generally disappointing responses made from the other side—that is, the responses from the teamed efforts o f the civil liberties and arts communities. There was, for example, entirely too much talk about the dangers of censorship—talk that struck me as generally confusing and quite beside the point. Censorship, as I understand it, is the attempt—almost always unjustified—to use the power o f the

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state to silence expression—for example, by jailing artists or burning books, practices that w e associate with totalitarian societies. But a withdrawal of public financial support (tax dollars) strikes me as quite a different thing—objectional perhaps, but not in the same league with most cases of genuine censorship. I did not hear one person from the American Legion suggest that, if this exhibit was housed in a private gallery, it should be shut down and the curator jailed—only that public funds should not be involved in its display—and surely there is a distinction here that is worth insisting on: Even i f people have a right to desecrate the flag, it does not follow that they have a right that somebody else be forced to pay the bill to provide them with an arena in which to do it. T o suggest otherwise is, I think, logically confused and morally dangerous—morally dangerous because it cheapens the currency o f moral discourse when a strong condemnatory word such as "censorship" is used casually. ( I f every unwelcome sexual encounter is labeled "rape," and every racial injustice is described as "like the Holocaust," then w e will start to become impatient and even bored with rape and the Holocaust. So too, I suspect, with censorship.) Equally discouraging, I thought, was the nature o f the discussion that the arts community conducted about the exhibit. In general I heard talk only of the political significance o f art—claims that the presence o f so much public political discussion was healthy for the community and thus a sure sign that the art museum was doing its job. But spokespeople for the arts—museum curators, critics, and art historians—can surely not claim any special expertise on politics or on what is good for public discussion; they are experts on (presumably) art. Alas, however, there was almost no discussion o f the aesthetic merits or demerits of the items in the exhibit. Here was a truly wonderful opportunity to educate the public—perhaps to teach us all something about art—but that opportunity was squandered as various art experts instead shared with us, as fellow amateurs, a variety o f platitudes about freedom and the healthy nature o f political controversy. One would hope that, as one moves from the immediacy o f public controversy to the world o f scholarship, the situation would be different. Here one would hope to find expert knowledge and not merely platitudes and political opinions; but these hopes are not always realized. L a w Professor O w e n Fiss, for example, defends support for Mapplethorpe's photographs mainly because o f the role they can play in sensitizing us—in this time o f the

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A I D S crisis—to the extreme sexual practices o f a marginalized minority. I 1

will

concede that these might be laudable goals, but some part o f

me—perhaps

some

old-fashioned

and outdated

"art for art's

sake"

part—wants to say to Fiss: " W a i t a minute. Mapplethorpe is not writing pamphlets for gay liberation. He is a photographer and I want to learn i f he is any g o o d as a photographer.

While I would not deny that moral and

political content can be a part o f the total aesthetic package (and in Mapplethorpe's case it manifestly i s ) , it surely cannot be the whole or even 2

main part. If it were, w e could simply dispense with the work o f art and read pamphlets instead." It is possible, o f course, that law professors simply do not have much to teach us on such matters. But then w e must not think that what they are expert in talking about with respect to art is the most important thing about art. Moving from the writings o f a legal scholar to those o f an art scholar, w e might consider art historian Wendy Steiner's celebration o f Mapplethorpe. In her recent book The Scandal of Pleasure, she presumes to lecture people 3

tike me (whom she refers to as "the laity") on the importance o f being instructed by those w h o are deeply schooled in art and art history. A l w a y s eager to be instructed by m y betters, I had hoped to learn from her what was artistically valuable about Mapplethorpe's disturbing images. It turns out, according to Professor Steiner, that these images are great primarily because they will allow me to explore the " d e v i l " within myself and consider sadomasochistic erotic possibilities that I have previously (thank G o d , I am inclined to say) been too repressed to bring to consciousness. While I, a 4

See Owen M. Fiss, Liberalism Divided: Freedom Of Speech And The Many Uses Of State Power 89-107 (1996); Owen Fiss, The Irony Of Free Speech 27-49 (1996). It was comical when, during the trial of the museum curator who exhibited the " X Portfolio," one photography expert suggested ignoring entirely the fact that the picture was of an anus with an arm inserted in it and concentrating instead solely on formal properties of light and shade. If we are to discuss Mapplethorpe seriously, we must not pretend—as one of the conference participants did—that his images are simply like classical nudes—"beautiful bodies in the act of love." This is certainly true of some of Mapplethorpe's pictures, but not of all—e.g., the one of one man in a leather mask urinating in the mouth of another man. Suppose this man had been urinating in the mouth of a woman. Would there have been an outcry from feminists? 1

2

3

4

Wendy Steiner, The Scandal Of Pleasure: Art In An Age Of Fundamentalism (1995). See id. at 52-59.

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person from the lowly laity, would hate to be accused o f failing to show proper deference to someone w h o has spent her life studying art, I must confess that I fail to see how her recommendations concerning sexual emancipation can in any degree rest on her artistic expertise. I personally d o not feel the need for either a sexual counselor or a social engineer; and, were I forced to choose one, I doubt that Professor Steiner would be my choice. I do not mean to be ultimately dismissive or disrespectful to either Professor Fiss or Professor Steiner—particularly since I learned a great deal from their generally splendid books. I simply want to use them to illustrate how even excellent scholars, when they talk about art, often find it hard to resist moralistic or political reductionism. Perhaps, as art critic Robert Hughes has suggested, w e Americans have been rendered almost incapable o f discussing or appreciating art because o f our puritan heritage. Puritanism, Protestantism run amuck, may be thought o f as obsessive moralism. It sees moral issues everywhere (in smoking, drinking, gourmet dining, loafing and all the other unhealthy practices without which life would hardly be worth living), and it strives desperately to reduce all value to moral and/or religious value. The apex o f American puritanism was perhaps reached in the 1960s when many people defended their use o f drugs, not simply on grounds o f recreational enjoyment, but in terms o f crackpot quasi-religious theories o f higher realms o f expanded consciousness. T h e puritan tries to find a way to make even his vices good and thus not really vices at all. 5

In our secular contemporary society, the current form o f puritanism is, o f course, an obsession with politics—i.e., the view that i f something really matters it must have something to do with issues o f social justice or social organization, something we might vote on or grieve to the Supreme Court about or even take to the streets over. In this kind o f climate, it is not at all surprising that Mapplethorpe's detractors speak mainly o f the corrupting power o f his perverted and pornographic images, and his supporters speak mainly o f sexual freedom and sensitivity to gay issues. That his pictures could be really good ( o r really bad) for reasons having little to do with politics is an issue rarely addressed.

See Robert Hughes. Culture Of Complaint: The Fraying Of America 171-74 (1993).

5

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I had hoped that here in Arizona, with respect to the flag exhibit, that at least one art expert or museum curator might have said something like this: " O f course, Kate Millett's object is aesthetic garbage—requiring neither training nor talent, something you or I could have done in five minutes—but it at least makes an interesting political point." Even more exciting, o f course, at least to a skeptic such as me, would have been someone who brought expertise to bear to argue in this way: " Y o u may think that Kate Millett's work is aesthetic garbage having only political significance, but let me educate you and show you its genuine aesthetic merits." Or even this: " T h e distinction between what is and what is not an object o f artistic significance is a hard and perhaps dangerous one to attempt to draw, so let me educate you on why that is s o . " Instead o f doing any o f this interesting educative work, however, even the art experts seemed to be operating on the uncritical assumption that i f an object makes an interesting political point, and i f someone with curatorial authority sticks it in a building labeled "art museum," then it thereby automatically acquires the status o f a work o f art. 6

This uncritical view is, o f course, a hard view to accept i f one truly values art and wants to see it as an object o f celebration and support and even defend for it some special status such as tax exemption—a point I will talk about a bit more later. It is possible, o f course, that puritanism is not the only villain here. A misplaced egalitarianism may also be at work in the unwillingness o f many people, even art experts, to make public judgments about the aesthetic nature and value o f art objects. T h e political opinions of any one citizen must, o f course, be accorded the same respect as the political opinions o f any other; and perhaps some people perversely think (or think they ought to think) that something like this goes for art as well. Perhaps they fear stating openly that some people are simply more artistically gifted than others, that—sadly—some with sincere and decent political messages are often not gifted at all, and—even more sadly—that some with truly vile political messages (e.g., Richard Wagner) are artistic geniuses.

One of the participants at the conference suggested that, ifI had known more about the history of art, I would have realized that ready-made objects can be used to make a statement about the nature of art. Well, I do know about Marcel Duchamp and his famous display o f a urinal as a work o f art. But this was in 1915, and so surely by the time Millett did something similar this was, as a matter o f aesthetics, boring old hat. 6

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S u c h political t i m i d i t y in the m o d e r n w o r l d o f political correctness is perhaps not surprising. But, as Dr. Johnson might h a v e said, d o w n this road lies madness. W h e n a society starts to think that the qualifications f o r b e i n g taken seriously a s an artist are to b e found written o n the base o f the Statue o f L i b e r t y , w e h a v e not o n l y a travesty o f any m e a n i n g f u l concept

of

egalitarianism but have also set upon a destructive course that c o u l d spell the e n d o f art as a significant e n t e r p r i s e - an enterprise that must a l w a y s , let us face it, have an elitist d i m e n s i o n , a d i m e n s i o n that r e c o g n i z e s the r e l e v a n c e of

such

and

things

as talent,

education,

craft,

vision,

historical

location,

most p r e c i o u s o f all—genius. M e r e v i c t i m status—status as a person

m a r g i n a l i z e d , like K a t e

Millett,

o n grounds o f g e n d e r , sexual orientation,

mental illness, political alienation o r w h a t e v e r — c a n n o t automatically qualify o n e ' s cries o f pain and outrage as artistically significant e x p r e s s i o n s — n o t , at a n y rate, on any theory o f art that w o u l d take art seriously. In the heat o f political battle o r i m p e n d i n g litigation, p e o p l e often s a y careless and intemperate t h i n g s — i n part because they are responding to e v e n m o r e c a r e l e s s a n d intemperate rhetoric

from others.

A n d thus I c a n

understand the pressures that m i g h t , under certain circumstances, m a k e a m u s e u m curator

talk

m o r e about

politics

than

about art and Label as

c e n s o r s h i p things that c l e a r l y are not. In o u r c a l m e r and m o r e moments, however,

I think that it is important

reflective

that w e not a l l o w our

l e g i t i m a t e z e a l t o protect f r e e d o m o f e x p r e s s i o n t o tempt us into w a y s o f c o n c e p t u a l i z i n g art that distorts art or diminishes it o r , for that matter, falsely e l e v a t e s it.

T h i s is a particularly pressing task f o r those o f us w h o , in

addition to valuing freedom o f expression, adore the arts a n d w o u l d find l i f e unbearably i m p o v e r i s h e d without them. How

then should w e think about the arts in relation t o f r e e d o m

of

expression? This is the question I w i l l n o w b e g i n t o e x p l o r e and I w i l l , I a m afraid, h a v e much m o r e c o n f i d e n c e in m y suggestions about what w i l l not w o r k than I w i l l in m y suggestions about what w i l l .

Like many whose

c o n c e p t i o n o f p h i l o s o p h y is Socratic, I h a v e a greater affinity for skeptical attack on c o n v e n t i o n a l w i s d o m than I have for d e v e l o p i n g new p o s i t i v e theories o f m y o w n . I like to hope, h o w e v e r , that such skepticism at least has the v a l u e o f m o v i n g us a w a y from o v e r l y narrow visions a n d o p e n i n g the d o o r for o t h e r s — i n this case, p e o p l e w i t h m u c h m o r e k n o w l e d g e o f the arts than I p o s s e s s — t o g i v e us fresh perspectives.

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Freedom o f Expression and the Arts 2.

T H E VALUE OF ARTISTIC EXPRESSION

Most philosophers who have written on freedom o f expression have opposed censorship by developing an argument that there is something truly special about human expression—something so special as to merit extra protection. What might this be? The most famous account, provided by the nineteenth century English philosopher John Stuart Mill in his classic book On Liberty, develops a utilitarian defense o f free expression—a defense resting on the socially useful consequences o f such freedom. H e argues that society benefits from the discovery o f truth and that truth is most likely to emerge in an environment o f free discussion. This has come to be called "the marketplace o f ideas" theory. A political variation o f this idea was developed in America by Alexander Meiklejohn (and echoed to some degree by Robert Bork) that free expression is worthy o f protection because it allows the social g o o d o f democratic government to flourish—such government being impossible without open discussion o f political options. This is a powerful and persuasive line o f thought, but it is hard to see its bearing on a great deal o f artistic expression. Mill's argument works best for the protection o f what might be called cognitive or scientific speech (speech primarily concerned with ideas and the discovery o f truth), and Meiklejohn's argument works best for the protection of political speech. While some art may instantiate these values, much great art probably does not—at least not dominantly. (It is interesting that the objects in the Phoenix exhibit most clearly meriting protection under the Meiklejohn-Bork theory—e.g., Kate Millett's toilet—had, in my view, the least artistic significance.) Would w e want a theory o f free expression that would protect Picasso's "Guernica" or Soviet Realism but not Abstract Expressionism or Bach fugues? I suspect not. Thus i f we want a powerful theory o f the value o f artistic freedom, w e need at the very least to supplement models o f the marketplace o f ideas or political speech. There are, o f course, those w h o will say that all art—even a Bach fugue—aims at or conveys truth. I am not drawn to this line o f thought for two reasons: First, I think that there are many values (emotional enrichment, for example) that are o f equal or even greater importance than truth and those who think that the only way to revere art is to claim that it aims at truth hold an impoverished view o f importance. Second, the use o f a concept o f truth that covers both a scientific paper and a Bach fugue seems to me so general

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that the concept becomes a mere metaphor and loses its explanatory value—achieving simplicity at the price o f distortion. H o w does one refute a fugue, or provide evidence against it, or suggest it is false, or paraphrase it without loss of meaning? A l l these things strike me as possible with respect to genuine truth claims. I might mention in passing, by the way, that even when visual or musical art seeks to state a controversial message—some kind o f truth—it is a pretty blunt instrument for this and rarely stirs up controversy on the primary ideas present in the art. The Robert Mapplethorpe exhibit generated a bit of discussion on the merits o f homoeroticism, the T w o L i v e Crew recordings generated a bit o f discussion on black culture and the degrading treatment of women, and Kate Millett's " T h e American Dream Goes to P o t " in the " O l d G l o r y " flag exhibit generated a bit o f discussion about attitudes toward America during the Vietnam War. But far and away the greatest volume of discussion with respect to all three radically different events has been a discussion of censorship—hardly the content o f any of the art in question. This is what I mean by saying that art—at least visual or musical art—is a blunt instrument for enriching political discourse. 7

O f course, the relationship between art and politics is very complex, and anything simple that one says about it is likely to be simplistic. This is in part because the concept of the political is a social construct and is thus fluid. For example: Highly abstract art, art with arguably no political or even cognitive content at all, may become the focus o f political controversy i f the state seeks to oppose it for political reasons. When the Nazis and the Soviets censored most abstract art as "degenerate" or "decadent," this was generally not because o f any political content in the art itself but rather because these regimes were so repressive that they viewed any departures from rigid conventionality, even those outside o f politics, as a danger to the state. At that point, of course, the artist who continues to paint or compose in this way cannot avoid being seen as, at least in part, making a political statement; and

Limitations o f space (and knowledge, too. let it be admitted) force me in this paper to speak mainly of "the arts" in a very general sense. A complete account of artistic expression would, I suspect, have to make rather different claims for the various specific arts—e.g., would have to note important differences between music and literature. Such differential treatment would also, I suspect, be required in a full discussion of the issue o f public funding for the arts. 7

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such sad cases as that o f the composer Shostakovich illustrate the terrible toll that living under such a regime can impose on an artist and his actual and potential public. Moving from Mill and Meiklejohn, we encounter a quite different account o f the value o f freedom o f expression—-an account found as a subordinate idea in Mill's On Liberty but developed much more fully by such contemporary Kantian philosophers as Ronald Dworkin and T . M . Scanlon. T h e core 8

idea here is that freedom o f expression is worthy o f protection, not primarily because it leads to useful social or political consequences, but because it shows respect for one o f the most precious and important things about us as human beings: our capacity to realize our selfhood and find meaning in our lives through our own autonomous choices (choices ideally made through expressive interactions with each other) and our right to attempt to shape our social world through our o w n ideas. This is a powerful theory and provides a basis for a right to free expression that I find more compelling than M i l l ' s utilitarian foundations. It offers a two-pronged defense o f freedom o f expression: From the perspective o f the speaker, it stresses the value o f self-expression. From the perspective o f the listener, it stresses the idea that it is an insult to the humanity o f a mature adult that others (particularly the state) should presume to determine for him what expressions he will hear or see in forming his o w n conception o f what is worthy in his life. Where does artistic expression fit in this theory? This is complicated. From the perspective o f a poet or painter or composer, the production o f art is likely to be an important aspect o f his or her self-realization.

But for

others, their self-realization may be found in non-artistic activities—e.g., auto mechanics or sex or drugs. So much, then, for any claimed uniqueness for artistic expression—some claim that it merits special deference. Those w h o want special honorific status for artistic freedom, then, might not be able to get it on this autonomous self-realization theory because it seems unable, in its o w n terms, to answer this question: What is so unique and special about

See Ronald Dworkin. "Do We Have a Right to Pornography?" in A Matter Of Principle 335-72 (1985); Thomas Scanlon, " A Theory of Freedom of Expression" 1 Phil. & Pub. Aff. 204-26(1972). 8

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artistic expression that it merits greater deference than other forms o f autonomous self-expression? But do we need uniqueness and special protection for artistic expression? One could argue that all acts o f self-expression are worthy o f a high level o f protection and simply include art in this general category. There are problems with this suggestion, however. Do we really want to give the same level of protection to, say, recreational drug use that w e g i v e to art? Even i f recreational drugs were legalized, would w e want to g i v e tax breaks to someone who contributes to developing marijuana crops comparable to those w e g i v e to those who contribute to symphony orchestras and art museums? And consider obscenity: A s the law in America now stands, an exception is made for forms of expression that have artistic value whereas other equally intense forms o f self-expression—direct sexual expression, say—are not cut a comparable break. Is this special status for art justified? If so, why? Just because some people with degrees in fine arts or jobs as museum curators say 90? This bothers me. I am not comfortable, in obscenity cases, that one man goes to jail (the one who sells T w o L i v e Crew C D s ) and another goes free (the one who exhibits Mapplethorpe photographs) largely because the latter, but not the former, can find highly educated and credentialed persons from the art world who are willing to praise, and perhaps even overpraise, the artistic significance o f the work. This needs to be thought about a great deal more. Let me now move to a final defense of free expression—one that might be derived from Aristotle and the natural law/virtue tradition. This defense goes as follows: Expression is to be protected when it is the kind of expression that is conducive to the good or virtuous life—expression that, in short, makes us morally better people than w e otherwise would be. Someone might plausibly use such a defense for celebrating some forms of expression—religious expression perhaps—but is such a defense plausible with respect to art? I am skeptical that it is. While I am willing to concede that some art may make some people better, I acknowledged as great—is unlikely to have this effect. I do not think that anyone who has spent much time hanging around the faculties o f English departments, for example, can really believe that the study o f literature makes people virtuous. A l s o , it is well known that some o f the most prominent

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collectors o f visual art (the Nazis and the Soviets, for example, i f one wants to regard theft as a form o f collecting) seem to have been able to resist the morally transformative power that the starry-eyed often claim for art. And consider a choice American example: William Randolph Hearst. H e collected art to the point o f fanaticism and yet—to put it mildly—was not a very nice man. When Dorothy Parker visited Hearst's famous "castle" in California, she noted a Delia Robbia over the entrance o f Marion Davies' bedroom and penned the following lines in the visitor's book: Upon my honor, I saw a Madonna Standing in a niche Above the door of the private whore Of the world's worst son of a bitch. 9

M y inclination, then, is to suggest—even at the risk o f undermining William Bennett's cottage industry o f character building through little stories—that we would be advised to use considerable caution before placing too many o f our eggs o f free artistic expression into the basket o f moral improvement. In addition to failing at a clear moral mission or result, art sometimes fails to have even a traditional aesthetic mission or result. Some significant twentieth century art, for example, is in self-conscious rebellion against such Kantian aesthetic ideals as sublimity and beauty, and so I tend to be suspicious—not just o f moralistic defenses o f art—but also o f those defenses that would constrain art within the values o f the finishing school. Inspirational and elevating accounts o f art will be able to defend a special status for much art, but they will probably fail for at least some important art that may also be worthy o f our protection and even celebration. Let me summarize where I have reached so far. I think that the standard philosophical accounts given in defense o f freedom o f expression—marketplace o f ideas, political speech, autonomy, and character development—all tell a part o f the story about art but fail, even when taken all together, to tell the full story. They are all various forms o f reductionism, and I cannot help feeling that there is something irreducible about art—that art has a nature and value that is in part unique, incapable o f being captured

Hughes, supra note 5. at 181,

9

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b y any reductionist analysis. ( T h i s w a s the point, b y the w a y , o f m y epigraph from B i s h o p Butler: " E v e r y t h i n g is what it is and not another t h i n g . " ) I f I 1 0

am right about this, then o n e consequence m a y be that our o w n constitutional s y s t e m , to t h e d e g r e e that it is f o r m e d around these v a r i o u s p h i l o s o p h i c a l ideas, is to s o m e d e g r e e maladapted to serious consideration o f the nature and v a l u e o f art. I k n o w that it m a y not seem v e r y helpful to say that art m i g h t be worth celebrating s i m p l y because it is art, but o n e a l w a y s has to dig in o n e ' s heels somewhere

not e v e r y t h i n g can be d e f e n d e d in terms o f s o m e t h i n g else.

( S u p p o s e I ask for a defense for the claim that pleasure is an important human g o o d . W h a t d e f e n s e c o u l d o n e p o s s i b l y g i v e that w o u l d not i n v o l v e c l a i m s m o r e c o n t r o v e r s i a l and obscure than the c l a i m that pleasure

is g o o d ? )

C e l e b r a t i n g art s i m p l y a s art at least has the initial m e r i t o f k e e p i n g o p e n possibilities rather than closing them d o w n by artificially n a r r o w i n g our focus. A narrow focus n e v e r o p e n s to us e v e n the p o s s i b i l i t y o f s e e i n g

art,

but rather forces us a l w a y s to s e e art as—art as p o l i t i c s , art as a u t o n o m y , art as virtue, or art as truth. F o r t u n a t e l y , w e g e n e r a l l y do not need to defend the special v a l u e o f a m o d e o f expression in order to c o n d e m n most censorship o f that e x p r e s s i o n . Usually ship

the

reasons

disapproval

on

relied

on

political

by

the

grounds,

state

to

justify

the

for e x a m p l e — a r e

censor-

sufficiently

o b j e c t i o n a b l e in their o w n right that censorship must b e c o n d e m n e d e v e n w i t h respect to e x p r e s s i o n that in i t s e l f can b e a c k n o w l e d g e d as worthless. W h e r e a special defense for a form o f expression

fairly

such as artistic

e x p r e s s i o n — s e e m s necessary is w h e n special protected status is g i v e n to that e x p r e s s i o n b y the l a w — w h e n it is g i v e n m o r e protection o r d e f e r e n c e than other forms o f e x p r e s s i o n .

O n e e x a m p l e o f such d e f e r e n c e w o u l d b e i f a

court d e m a n d s a particularly significant state interest and not just an ordinary rational basis to justify i n t e r f e r e n c e s — a s happens, as I understand it, w h e n artistic v a l u e o f material is a l l o w e d t o shield a p e r s o n from p r o s e c u t i o n for distributing this material that w o u l d o t h e r w i s e b e o b s c e n e and o p e n the distributor to c r i m i n a l prosecution.

A special legal status a c c o r d e d art is

Philosophers will recognize the Butler quotation from G.E. Moore's important book Principia Ethica, where he used it as an epigraph to make the point that moral value cannot be reduced to such non-moral values as want satisfaction. G.E. Moore. Principia Ethica (Thomas Baldwin ed., rev. ed. 1993). 10

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perhaps even more dramatic with respect to issues o f public funding—either through tax deductions for contributions to artistic institutions or direct grants to artists and museums—and this is the topic to which I shall now pass. 3.

PUBLIC FUNDING FOR THE ARTS

I will have space here to give only a very brief consideration to one line o f philosophical argument with respect to the issue of public funding for the arts. For reasons already indicated,I think that a failure to fund is an issue totally different from censorship. Even if one believes, as an absolute value, that the state must never censor art, one may consistently believe also that the state should never spend a dime in support o f art. W e all have a constitutional right that the state respect for each o f us a wide range o f expressive freedom but no comparable right that the state pay the bill for this freedom. The state could drop all funding for the arts and face no constitutional challenge. O f course, if the state decided to fund some art and not other art on the basis o f overt political judgments—funding only art that puts the Democratic party in a favorable light, for example—serious constitutional problems might well emerge. A core question about funding (and, indeed, about planning exhibits in any museum funded by public money) is this: to what degree, if at all, should museums and funding agencies be influenced—independently of any constitutional considerations—by the fact that some persons will find certain artistic exhibits offensive—perhaps even deeply offensive—to their fundamental moral and religious convictions? Some—Senator Jesse Helms and his supporters on occasion—seem to suggest that offensiveness o f this nature provides, by itself, adequate grounds to refuse state funding. Others seem to suggest that, on the contrary, offensiveness is a good thing—that one of the primary purposes o f art is to undermine the smugness o f complacent middleclass people. On this view, offensiveness should be regarded as either irrelevant to funding or even as a positive reason for funding. I reject both o f these approaches. The problems with the former are obvious: it would stifle production of all art except for the most banal. Assessing the latter, however, is more complex. Is it really fair and reasonable to force people to pay the bill for art whose very purpose is to ridicule their most basic values? In general, I should think not—not, at any

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rate, in a society organized around a principle of equal concern and respect for all citizens. How, then, does one address this legitimate concern without giving potentially offended persons a veto power over artistic support? In brief summary, I suggest the following: If a legislature or a governmentally funded museum—supports art that offends the basic values o f some citizens, that fact by itself does not in my view give those citizens a valid grievance. If the support is given in part for the specific purpose o f "sticking i t " to those citizens, however —for the very purpose o f ridiculing their values then those citizens may have a valid grievance. 11

Under the influence o f the writings o f Ronald Dworkin, I was once persuaded that public funding for the arts involves deep and perhaps irresolvable matters o f principle. I have now c o m e to think that this issue, though complex, is not quite that deep.I will close this section by sharing with you the reasons for my change o f mind. When writing on public funding for the arts, Dworkin frames his discussion around constraints imposed by his earlier defense o f a strong neutrality principle with respect to liberal government. Such a government, he argued, must never use its coercive power on someone because it disagrees with that person's conception o f the good life and thinks that he or she could be made a better person (or prevented from becoming or remaining a bad person) through that coercion. Any attempt by the coercive state to promote the virtue o f persons is a kind o f paternalism that would violate those persons' right o f moral independence and would fail to accord them the equal concern and respect that is, in Dworkin's v i e w , the principled basis o f liberal government. Thus Dworkin, although he claims to loath pornography and its possible adverse effects on the characters o f those who consume it, opposes all paternalistic attempts at its restraint by the coercive power o f the state. 12

Given such a strong neutrality principle, it is easy to see why Dworkin is led to believe that public support for the arts raises important problems o f

In the first publication of this essay, in Arizona State Law Journal, this footnote consisted simply o f a cartoon. I have not, alas, received permission to reproduce the cartoon in the present collection and will have to content myself with describing it. The cartoon, by "Mr Fish," shows an artist, standing before a portrait o f a man labeled "Fucking Assho...," saying to that very man: "Can I have a grant so that I can finish my art?" 11

See Ronald Dworkin, "Liberalism" in A Matter Of Principle 181-204 (1985); Ronald Dworkin. "Can a Liberal State Support Art?" in A Matter Of Principle 221-33 (1985), 12

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principle. For he seems to think that there are only two possible justifications for using tax dollars, dollars which are o f course raised through state coercion, to fund art: ( 1 ) art is g o o d for people or ( 2 ) art satisfies people's wants or desires. The problem with the second justification is that the very kind o f art most in need o f public funding the art w e often refer to as "high culture" is a kind o f art that only a minority o f citizens do want or value. ( A n d those that do are often from social classes that would allow them to fund at least some o f it from their own resources.) The problem with the first justification which Dworkin calls the "high minded" justification is that it involves the very kind o f paternalistic violation o f the right to moral independence that his strong principle of liberal neutrality rules out. Dworkin's very clever, if ultimately unsuccessful, attempt to get out o f this dilemma is through his employment o f an extended version o f what economists would call a public goods argument. If citizens o f a democracy are taxed to support activities that they do not want or see the value of, how can this be justified? O n e way is by arguing that these activities represent public goods—things that benefit all citizens on their o w n (and not some morally controversial) conception o f benefit even i f they do not realize this. A l s o important to this pattern o f argument is the claim that these benefits are of such a nature that there is no efficient way to exclude from the benefits those w h o do not want to pay for them. Public highways, public education, police forces, water systems and mandatory vaccinations are just a few things normally justified in this way and thus referred to as public goods. Can a comparable argument be advanced for art? There is no problem for the art o f popular culture, o f course, because the market w i l l support this. Rock groups typically do not need state subsidies-- nor do people who paint pictures o f Elvis on velvet. A s noted above, tax dollars are typically used to support what is often called high culture—the kind o f culture that tends to appeal to an educated minority with certain kinds o f cultivated sensibilities and which is l o o expensive to be maintained at a high level by the minority o f people who value it. Support for a local symphony or opera or ballet c o m p a n y — o r a museum o f fine art are examples o f this kind o f support. But w h y should the average c i t i z e n — w h o may not g i v e a damn for this kind o f culture and may even find large portions o f it offensive- - b e forced to pay the bill so that a minority can enjoy it? One answer to this question would be to argue that high culture is a public good comparable to highways, public schools, etc.—perhaps because such culture may bring into the

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community wealth from which all will benefit. Another argument—one that appeals to D w o r k i n — i n v o l v e s the claim that high culture trickles d o w n , in mysterious ways, to enrich the popular culture that most Americans enjoy. It adds a complex and deep structure to civilized life from which all people benefit whether they realize it or not. Put in a crude and o v e r l y simplistic way, the c l a i m — I take it—is something like this: N o Chekhov, no Roseanne. Is this general account o f art as a public good at all plausible? I am highly skeptical both about the claim itself and about whether we have any way o f gathering plausible evidence even to test a claim o f this complexity. H o w e v e r , according to Dworkin, something like this claim must b e made plausible i f the arts are to be legitimately supported at public expense. Otherwise w e are simply sticking up some citizens for the edification o f a small elite. Although m y o w n thinking about public funding for the arts was at onetime framed by Dworkin's general account,I have recently c o m e to think that its apparent power rests upon a false dichotomy—the mistake o f thinking that public funding for the arts can be justified only in terms o f satisfying e v e r y o n e ' s wants (at least indirectly) or trying, on paternalistic grounds, to make people better. But surely there is a third possibility: that society might support art, even the art o f high culture that few people actually enjoy, simply because such art is judged ( b y the legislator) to be a good—not necessarily good for somebody (in the paternalistic sense o f improving character) but simply a g o o d . Recall D w o r k i n ' s o w n well-known argument in defense o f affirmative action. He argues that minorities have no right to such programs but that reasonable legislators should pursue such programs as an ideal o f something good for their society even if some citizens strongly disapprove o f them and b e l i e v e , rightly, that they will be worse o f f because o f them. T h e only important question o f principle that can be raised by those opposing the programs, he argues, is the question of whether anyone's rights are violated by them; and he argues (controversially) that no rights are violated. Thus legislators, in their collective wisdom, may proceed with them without the fear that they are doing anything that is unprincipled. 13

See, e.g., Ronald Dworkin, "Bakke's Case: are Quotas Unfair?" in A Mailer Principle 293-303 (1985). 13

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Why cannot Dworkin argue in a similar way about public funding for the arts? If the legislature decides that supporting art is a good thing to do, why should the fact that some people do not value art constitute an objection o f principle to what they are doing? Consider nature and the environment. The legislature has decided that environmental goods are to be promoted—everything from saving endangered species to maintaining wilderness areas and national parks. N o w I happen to find all o f these things boring; I get withdrawal symptoms when I am away from concrete for more than a day or so and tend to agree with Oscar Wilde's definition o f nature: " A damp place—with birds." But do I have any principled objection to make to my government's decision to regard nature as a good worthy o f public support? A m I not simply in the minority on this issue—a situation a citizen must expect to face from time to time under democratic government? I cannot see that any right o f mine has been violated. O f course I do not actually object to nature; I do not regard as evil and perverse those who seek to preserve it. Many opponents o f federal funding for the arts, however, are not simply indifferent to or uninterested in art but actually believe that much that is supported is blasphemous and evil. Have even they no objection in principle when they see their tax dollars spent, for example, to support art that desecrates their basic values? Must they simply accept this as a loss in democratic politics and either g i v e up or work harder to influence the political process in the next round o f elections or votes? I think that this is a harder case.

Dworkin has persuaded me that

democracy should be conceived not simply as winner take all majoritarianism but rather as organized around the value of equal concern and respect for all citizens. A democratic legislator under the latter conception should, I think, 14

always regard it as a serious matter that some legislative policy goes against, not simply the preferences, but the basic principles and values o f some citizens. It is not enough simply to say to these citizens "Sorry, we have the votes—you lose." Rather an argument is required that some important value is being pursued that, in the eyes o f the legislator, rationally justifies acting (regretfully) in spite o f the values o f the dissenting citizens.

For these two conceptions of democracy, see the introduction to Ronald Dworkin, Freedom's Law: A Moral Reading Of The Constitution 1-38(1996). 14

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Consider m y own increasingly negative views o f Thomas Jefferson. T h e more I read about him about his personal behavior and about his views on minority races and slavery - t h e less admirable I think he was both as a person and as a political leader. Although I have not reached this point yet, I can imagine someday coming to think that it is a great mistake for our country to continue celebrating his place in American history--coming to think that what he stands for offends m y basic values. I f I reach that point I may, o f course, develop strong objections objections o f value and not merely o f preference—to the continued use o f federal funds to maintain the Jefferson Memorial in Washington. If I try to make a political issue out o f this I would hope that, in a democracy o f respect, m y concerns as a citizen will be listened to and taken seriously in legislative calculations on this mailer. This does not mean that I must be given a veto power because o f m y principles, however; and thus i f I lose (as I probably w o u l d ) after m y principled objections have been considered and weighed, it does not follow that I am left with a reasonable grievance against m y government. Would I have a deep objection o f principle to raise to the procedure that produced this outcome? Would any important right of mine have been violated? I think not and so too, I would be inclined to argue, for the person w h o hates all art or some part o f it funded by the National Endowment for the Arts. O f course, issues of motivation matter a great deal here as they must o n any theory o f equal concern and respect. If a legislature—or a governmentally funded agency—makes grants to artists that offend the basic values o f s o m e citizens, that fact by itself does not. in m y view, g i v e those citizens a valid grievance—particularly if their negative views have been respectfully considered before being trumped by other values. If the funding agencies award these grants in part for the specific purpose o f "sticking i t " to those citizens, h o w e v e r — f o r the purpose o f ridiculing their values or supporting competing values, then those citizens do have a valid grievance. I think that many religious conservatives believe that grants are given to some artists simply because o f their anti-religious or anti-conservative political agendas. I have no idea i f this perception is correct; but, i f it is, then I think that these religious conservatives have not been treated with equal concern and respect in the granting process. There is, in my view, a great deal o f difference between " W e will fund Mapplethorpe because he is a great photographer and in spite o f the fact that his images offend the religious values o f some

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citizens" and " W e will fund Mapplethorpe simply to rub the noses o f the religious right in what they regard as sinful." Artists generally tend to be liberals in politics, and liberals tend to think that it is good to shake up complacent middle class people. Like any follower o f Socrates, I too think that it is a very good idea for all complacent people—not just middle class Americans—to be shaken up every now and then. This, however, is a moral and political judgment, not an artistic judgment; and it is not a matter o f anybody's expertise. Such a judgment—even i f made by a person with distinguished artistic credentials who serves on the board o f a granting agency—carries no special authority and must compete with other moral and political ideas—e.g., the idea that American stability has been undermined by too much challenge to settled values and that our culture would benefit from less skepticism and cynicism. To return to Dworkin on public funding: Unless the state is supporting art as a part o f some paternalistic attempt to mold people into a conception o f the good life that is not theirs, then there is no reason why Dworkin should demand that the state must be able to offer a persuasive public good argument i f it is to keep its support o f the arts from being unprincipled. If the neutrality principle causes problems, not merely for the support o f art, but for a wide range o f typical and (I think) rather uncontroversial exercises o f legislative legitimacy—from maintaining the Grand Canyon to the Jefferson Memorial—then this should make us suspicious, not o f the public support o f art, but o f this form o f the neutrality principle. 15

4. S O M E P R A G M A T I C C O N C L U D I N G R E M A R K S Let me close this somewhat rambling free association on art and expression by descending from the plane o f high theory and principle, returning to the real world o f museums and what they do, and making a few pragmatic observations. I will, by way o f example, revisit the Phoenix Art Museum's " O l d Glory" exhibit and will focus on Kate Millett's " T h e American Dream

A plausible argument can be made that it is permissible in principle for the liberal state to attempt to do some things with a tendency to mold character around values that are themselves basic to liberalism—e.g., respect for persons, due process of law, religious toleration, etc. I do not have space to pursue this matter here, however. 15

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Goes to Pot"—which is, you will recall, a toilet bowl with a flag stuffed in it. M y own admittedly non-expert view is that the Millett object is aesthetic trash that has, because it was produced in protest o f the Vietnam War, a bit o f mild historical interest. I probably would not have put it in any art museum o f which I was a curator (a history museum might be different), and I probably would not have supported any specific funding for her and her ilk. However,I still support the Phoenix Art Museum and still favor public support for the arts. W h y ? Because, for reasons I have already admitted I cannot fully explain,I believe that art is a good worth promoting andI cannot think o f any other way o f promoting it that would not make the world even worse rather than better. I also believe that, i f the state does not make inappropriate attempts to use art as a technique o f social engineering or character building, the good o f art can be promoted by a democracy without any serious compromises o f basic principle. Finally, I believe that, in spite o f the unworthy junk that sometimes emerges from our present funding practices (a mixture o f private and public support), some truly splendid things also emerge and that significant reductions in our society's funding for art might deprive us o f some o f these splendid things. The stories o f creative artists who thrive under poverty and neglect and even oppression are numerous and inspiring; but, to adapt a remark of Lord Bacon's when a priest showed him a painting of all the sailors saved by God's grace from drowning, " W h e r e is the picture o f those who were not saved?" If w e — a s I suspect w e can—establish the legitimacy o f using state funds in an attempt to support the development o f art in America, then (as history teaches us) decisions about allocation of resources cannot be made simply by political bureaucrats. This produces the kind o f art by apparatchik that w e associate with Nazi Germany and Stalinist Russia. T h e alternative is to have some generally independent authorities who are given considerable discretion. But discretion carries with it the possibility of mistakes, o f errors o f judgment—or, at the very least, o f judgments with which some people will sharply disagree. Such discretion might occasionally result in buying a toilet and flag for some artistic charlatan, or a Hershey Bar for a naked woman, or a diuretic for a person who wants to increase his urine flow for a really big jar o f religious desecration. But it would surely be hasty to drop the whole system on such grounds. Those who would like to fund a system o f support for art but who deplore these occasional grants as offensive silliness might

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try thinking o f the recipients of such grants as aesthetic analogues o f welfare chiselers. Would w e want to drop the whole system of support for the unfortunate simply because there is no way to guarantee that a few undeserving persons will not abuse the system and improperly receive aid? I hope w e would all answer No to this question. O f course, traditional liberals will no doubt be happy under present circumstances to share my No answer because, at the moment, most o f the highly visible forces o f artistic intolerance are on the political right. But here is a consistency check for liberals: W i l l all those who have used the slogans of toleration and artistic freedom in support o f the exhibits o f the work o f Mapplethorpe and Serrano and Millett continue to send their personal checks and advocate federal funding if museums start to run exhibits o f racist skinhead art, or art depicting the sexual humiliation o f women, or art protesting abortion through graphic pictures o f aborted fetuses? Given the recurring attempts to remove Mark Twain's works from school libraries because o f his mention o f the word "nigger," I suspect that liberals are just as capable as conservatives o f having their support o f art trumped by their political convictions. M y closing practical point is this: Society probably should support art museums and symphony orchestras and theater and ballet companies, and somebody has to plan the exhibits and performances for them. Those educated in the arts and designated art experts can sometimes be an irritatingly elitist, pretentious and condescending bunch—sometimes masking their political agendas in the cloak o f aesthetic expertise— and I can well understand the reluctance o f some citizens to g i v e them both large checks (or, in the case of America, fairly small checks ) and full discretion. On the other hand, i f these people do not run the show, somebody infinitely worse probably will—somebody like you, or even m e . 16

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According to National Geographic, the city of Berlin, Germany, spends nearly eight times more on art than the entire budget of America's National Endowment for the Arts. Peter Ross Range. "Reinventing Berlin" Nat'l Geographic, Dec. 1996, at 96, 113. This is the transcript of a public lecture that was given at the Free Speech and Community Conference at the College of Law, Arizona State University, Feb. 6-8, 1997. It was presented to stimulate discussion and does not claim to be a careful scholarly study of all the complex moral, political, legal, and aesthetic issues that are engaged by the topic. Many persons were kind enough to provide me with critical comments on this paper, and I hope to be able to take account of those comments if I have an opportunity to do a more substantial piece in the future. 16

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SOME RUMINATIONS ON W O M E N , VIOLENCE, AND THE CRIMINAL L A W I've decided that at bottom I'm just a sadist, and no damn good for any woman. The reason—I can beat them up. Only with men do I act decently cause I'm scared they'll whop me. Isn't human nature depressing? Norman Mailer

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1. INTRODUCTION

Each o n e o f us carries around his own personal demon, and mine has always

been b o r e d o m and the fear o f boredom. I resonate in sympathy with the John B e r r y m a n p o e m that begins " L i f e , friends, is boring" and have always understood - and see as more than mere wit—the suicide note o f the actor G e o r g e Sanders who claimed that he simply could not stand being bored any more."

2

T o keep this demon at bay, I want life to be exciting, or at least interesting and amusing. I want, a m o n g other things, for speech to be robust and open even at the risk o f being offensive or hurtful.I also want life to be erotically charged to challenge us with some level o f ambiguity and uncertainty in the relations between men and w o m e n , to electrify us with some undercurrent o f passion. T h u s I fear an environment o f safe, polite, inane discourse. I also fear the desexualization o f human interaction. I am thus initially ill-disposed toward campus conduct codes that seek to curtail racially insensitive speech, ill-disposed toward prohibitions against sexual harassment where the concept o f harassment is so vaguely defined as to inhibit all sexiness and flirtation, ill-disposed toward modifications in the law o f rape that make every seducer a potential rapist, and ill-disposed toward that strand o f grim feminism that

seems to have forgotten the beauty and ecstasy o f abandon that can be (even

i f it often is not) at the core o f heterosexual intercourse.

Quoted in Martin Amis. The Moronic Inferno and Other Visits to America (New York: Viking Penguin, 1986), 72. 1

Number 14 in John Berryman, 77 Dream Songs (New York: Farrar, Straus and Giroux, 1965). I think that somebody told me the George Sanders story at a cocktail party. Tracking it down and getting it just right would, of course, be too boring. 2

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W h y am I sharing with you this small piece o f my psychological autobiography? There are two reasons. First, as Susan Estrich has stressed in her influential book on rape, people tend to bring their own very personal perspectives and passions to bear on what purport to be purely abstract discussions o f intellectual topics, and it is productive o f both clarity and honesty i f these perspectives are brought to consciousness and into the open forum. (Estrich, for example, claims that most men come to the topic o f rape being dominated by the nightmare o f being falsely accused o f rape, and most women come to the topic dominated by the nightmare o f being raped. Thus it is not surprising that their discourse is often, at least initially, at cross purposes. ) 3

A second reason for my personal confession is this: I suspect that the mental disposition to which I confess is widely shared by both men and women, although many would find it too politically incorrect to confess. I also suspect that what I call the fear o f boredom and the corrective desire that life contain conversational and erotic excitement and uncertainty is simply a particular manifestation o f that general moral and political sensibility often labeled liberalism (at least o f the libertarian variety). For what is the libertarian nightmare i f it is not the world o f China under Chairman M a o — a world o f uniformly (and badly) dressed drones all saying the same inoffensive things and all avoiding any conduct (even hand-holding) that might introduce passion and uncertainty and thus danger into the life presided over by the state? The nightmare world described is indeed a world o f safety, but the liberal wants to hurl against it the famous taunt to timidity expressed by Benjamin Franklin: "They that can g i v e up essential liberty to obtain a little

Susan Estrich, Real Rape (Cambridge. Mass.: Harvard University Press, 1987). Some feminists suggest that personal stories should not be dismissed as mere anecdotal sociology but should be accepted as legitimate devices for focusing the mind upon important intellectual issues. Traditionalists and men, of course, have their stories to tell as well—for example, that of my colleague who had to deal with a formal complaint filed by a racially sensitive student because she read in class a passage that contained the word "niggardly" and my own story of a female student who charged me with sexism because I have a print of Gustav Klimt's painting "The Kiss" hanging in my office. I fear that people are now being encouraged to conceptualize themselves as victims and to look for ways to be offended; and I fear that legions of the super-sensitive will bring again to the forefront of American life those Puritan sensibilities that always lurk just beneath the surface and always pose a great threat to freedom. 3

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. . . safety, deserve neither liberty nor safety." The liberal will admit that the exhilarating life o f liberty is fraught with risks and dangers, but he will claim simply this: it is worth it. The benefits outweigh the costs. Such, then, is my initial liberal bias. In recent years, however, and partly under the influence o f certain aspects o f feminism, I have come to see that mis perspective cannot be the whole story and must be, not abandoned surely, but constrained or modified. It is one thing to say that liberty is worth risks and harms i f these risks and harms are spread over all affected parties equally. It is quite another thing to say this, however, i f these risks and harms are spread unequally and i f some persons or classes o f persons bear them to a considerably greater degree than others. If, for example, the burdens and harms associated with free speech fall mainly on members o f racial minorities and i f the dangers attendant to sexual liberty and excitement fall mainly on women, then white males should at least pause before glibly trotting out slogans about danger being the necessary price o f liberty. A liberty club in which all members pay equal dues for the benefits o f membership could well take Franklin's slogan as its motto. A liberty club in which some members get the benefits while others pay the dues, however, is not really a liberty club at all and the cost/benefit rhetoric o f "the necessary price o f liberty" may here simply be an offensive mask to cover distributive injustice. I take it that one way o f interpreting liberal feminism—on rape, on sexual harassment, on pornography—is as an attempt to exploit the tension between the liberal commitment to distributive justice (including a fair allocation o f risks and harms) and the liberal commitment to a most extensive liberty principle. I have come to think, with some reluctance, that the feminist case, though frequently overstated, is on to something here. 4

2. F E M I N I S M A N D T H E S U B S T A N T I V E C R I M I N A L L A W I have thus far talked in large and general terms about such matters as liberty, liberalism, sexuality, and feminism. I now wish to move to a more specific

I willnotI consider here if there may be some compensating benefits that might partially offset the increased risks and harms. Such a suggestion strikes me as implausible with respect to members of racial minorities but as more complex with respect to women. 4

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topic: the philosophy o f the substantive criminal law. In my remaining (and 5

somewhat free associational) remarks, I will try to address certain aspects o f the feminist impact on criminal law theory—an impact that has mainly (but not exclusively) been addressed to two topics: the law o f rape and the law o f self-defense. Both areas involve women and violence, but the thrust in each area is interestingly different at least on the surface. The feminist impact on rape law has essentially been anti-violence—seeking to reform the law so as to provide women greater protection against this dangerous and degrading crime. The feminist impact on the law o f self-defense, however, has in some sense been pro-violence—seeking to allow women (particularly so-called battered women) greater freedom to use violence, even deadly force, than the traditional law o f self-defense allows. In both cases, however, a dominant concern is the desire to reduce the risks and harms that women face in those aspects of their dealings with men that are regulated by the criminal l a w — a desire to make the allocation o f risks and harms between men and women more equal. These feminist concerns have prompted me to rethink various aspects o f the law o f rape and the law of self-defense. In this essay, I present the fruits o f these reflections and share them with my reader in full awareness that I enter the debate on feminism as an admitted late-comer and novice, raising questions and puzzles rather than presenting any systematic theories. I shall not rehearse here the standard legal doctrines and philosophical literature on rape and self-defense; neither will I rehearse the various aspects o f that movement o f thought called "feminism." I shall simply make some 6

By "substantive criminal law" I refer to the primary doctrines of criminal liability: the definition o f criminal offenses (in terms o f forbidden acts and mens rea culpability conditions), the grading of severity of criminal harms, and the nature and scope o f excuses and justifications, and so on. Other important areas of criminal law where feminism has had an impact, such as on rules of evidence or matters of criminal procedure, are not my focus in the present essay. 5

For an excellent overview of the contemporary American doctrines governing the criminal law of rape and self-defense, see Joshua Dressler's Understanding Criminal Law (New York: Matthew Bender, 1987), For an excellent discussion and assessment of the impact of feminism on criminal law doctrine, see Stephen Schulhofer's "The Gender Question in Criminal Law," in Crime. Culpability and Remedy, edited by Ellen Frankel Paul, Fred. D. Miller, and Jeffrey Paul (Oxford: Basil Blackwell, 1990). I am, o f course, aware that many men are victims of rape and that not all battered spouses (or domestic partners) 6

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remarks on four p u z z l e s raised by feminist criminal l a w theory: ( 1 ) What is

so special about rape? W h y , i f at all, is a violent sexual assault w o r s e ( m o r e e v i l ? m o r e harmful?) than a n y other physical assault? W h a t is so special about s e x ? S o m e feminists like to say that the real issue is not sex but is rather d o m i n a n c e o r p o w e r .

I f I p r o v i s i o n a l l y c o n c e d e this, I still h a v e this

question: Is using o n e ' s p o w e r to get sex w o r s e than using o n e ' s p o w e r in other ways and for other ends? M o s t violent assaults surely i n v o l v e ( o r at least attempt) d o m i n a n c e , humiliation, and degradation.

W h e n sex is

i n v o l v e d , d o e s this m a k e it w o r s e ? ( 2 ) What is the difference between rape

and seduction? H o w d o w e distinguish p e r m i s s i b l e threats and o f f e r s in the r e a l m o f sexuality from those threats and o f f e r s that merit treatment as serious felonies? W e have all by n o w surely internalized the feminist slogan that " n o " means " n o , " but w e still have to grapple w i t h the p r o b l e m that " y e s " does not a l w a y s mean " y e s . " W h e n does it not? W h e n the " y e s " is coerced. But what d o e s that m e a n ? ( 3 ) When is sex obtained through fraud

of such a nature as to merit treatment as a serious felony? T h e traditional doctrine is that fraud in the act constitutes f e l o n y rape but that fraud in the inducement does n o t — f o r e x a m p l e , obtaining consent to sexual intercourse w i t h a w o m a n by d e c e i v i n g her into b e l i e v i n g that one is inserting a m e d i c a l instrument is rape but obtaining consent to sexual intercourse b y d e c e i v i n g her into b e l i e v i n g that the act, w h i c h she clearly r e c o g n i z e s as an act o f sexual intercourse, w i l l cure her o f terminal cancer is not rape.

Is this a

m o r a l l y coherent distinction? ( 4 ) How can the "battered woman syndrome"

or any other psychological pathology play a meaningful role in justifying, rather than excusing, conduct? ( " S h e is disturbed so she is not responsible for k i l l i n g " has a kind o f sense that s e e m s to be lacking in " S h e is disturbed so she is justified, that is, acts

rightly,

when she k i l l s . " ) S e l f - d e f e n s e is

n o r m a l l y conceptualized as a justification, so h o w , if at all, can the battered w o m a n syndrome coherently fit—as many feminists want it to fit—under this doctrine?

are women. I focus on women as rape victims and women pleading self-defense simply because these cases have understandably been the focus of feminist concern. For a good general introduction to feminism and its rote in legal and political theory, see the essays in Feminism and Political Theory, edited by Cass R. Sunstein (Chicago: University o f Chicago Press. 1990).

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B e f o r e chatting about these four perplexities, let m e m a k e three preliminary o b s e r v a t i o n s and qualifications.

First, I am not at all c o n f i d e n t that

criminal l a w theory is the best lead-in to a profound discussion o f w o m e n , sexuality, and v i o l e n c e .I

subscribe to a v e r y minimalist theory o f law,

particularly criminal law, seeing it as concerned to maintain through force the m o s t basic rules required to m a k e social cooperation and c i v i l i z e d

life

possible. It stands in defense o f the very least w e can d e m a n d o f each other, and thus any discussion focusing on sexuality that is limited to a criminal law context w i l l necessarily ignore many matters o f great m o r a l and p s y c h o l o g i cal importance. I focus upon criminal l a w theory here s i m p l y because, since it is a topic o n w h i c h I have thought and written e x t e n s i v e l y , I m a y h a v e s o m e chance o f saying something about it that is at least i n f o r m e d .

Second, I have n o illusion that subtle doctrinal changes in substantive criminal law w i l l a l w a y s have a profound effect in actually i m p r o v i n g , in any practical sense, the treatment o f w o m e n w i t h respect to criminal v i o l e n c e . R e c a l l , for e x a m p l e , the w i d e l y discussed 1976 English rape case Regina v.

Morgan.

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In that case, the House o f L o r d s (interpreting c o m m o n l a w rape and

previous statutes) held that an honest mistake concerning a w o m a n ' s consent is a defense to the charge o f rape. A n outraged English public, c l a i m i n g that such a ruling in effect declared o p e n season on w o m e n by inviting rape, c a m p a i g n e d for a reasonable b e l i e f standard on the e l e m e n t o f consent. P a r l i a m e n t reacted by adopting a n e w rape statute that rejected the honest mistake defense and limited the defense o f mistake o f fact ( o n the issue o f the w o m a n ' s consent) to mistaken b e l i e f s that w e r e not reckless, that is, not c o n s c i o u s l y unreasonable beliefs. A l t h o u g h I a m w i l l i n g to c o n c e d e that this doctrinal change m i g h t add s o m e slight additional protections for w o m e n , I w o u l d not be t o o optimistic. R e c a l l that, in the law, "reasonable b e l i e f does not mean what a philosopher might mean b y the phrase—for e x a m p l e , it does not m e a n a b e l i e f arrived at by an unbiased person in ideal c o g n i t i v e conditions. Rather it m e a n s s i m p l y this: a b e l i e f that an average m e m b e r o f the c o m m u n i t y ( a j u r y m e m b e r ) thinks h e w o u l d h o l d in the circumstances facing the defendant.

I f the

a v e r a g e person is as filled w i t h sexist biases as m a n y feminists c l a i m , such as the b e l i e f that w o m e n often say " n o " w h e n they really m e a n " y e s . " then

House of Lords [1976] A.C. 182.

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w e could expect an acquittal rate almost as high under a reasonable belief instruction as under an honest belief instruction. Third, I should note that I come at the issues raised in this paper essentially from the perspective o f one w h o takes seriously a retributive outlook on punishment: an outlook that at least seeks to constrain the pursuit o f the utilitarian value o f crime control by the demand that a criminal never be punished in excess o f what, given his own responsible and blameworthy conduct, he justly deserves. (Criminal lawyers sometimes call this an emphasis on subjective culpability—an attempt to base culpability on not harm simpliciter but rather on harm intentionally brought about, foreseen, or at least such that a reasonable person would have foreseen it.) I have attempted to defend this perspective in numerous other writings and I do not intend to attempt another defense here; I mention it simply to make clear the perspective that I shall be bringing to bear in the discussion to follow.

3. W H A T IS SO SPECIAL ABOUT RAPE? Before the practice was declared unconstitutional in Coker v. Georgia, it was not uncommon for persons convicted o f rape in many Southern states to be sentenced to death, a practice which placed rape on the small list o f crimes (including first degree murder and kidnapping) regarded as sufficiently serious to merit the most severe punishment allowed by law. T h e reasoning o f the court in Coker was very controversial, but it did raise a very important issue: Namely, if rape is to be punished as severely as murder, then either the harm o f rape or the evil o f the rapist (or both) should be comparable to the harm or evil we associate with murder. The court was not persuaded that the harm or evil is comparable, and thus the death penalty for rape was struck down as cruel and unusual because disproportionate. 8

The thought o f the Coker court that society has overestimated the seriousness o f rape by comparing it to murder and kidnapping could, o f course, be the start o f an argument that society has overestimated the seriousness o f rape in ways more radical than anything contemplated in Coker. Although I cannot imagine anyone arguing that rape is not serious at all, I can imagine someone, someone who has perhaps internalized the sixties

433 U.S. 584(1977).

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view that our society has overmoralized sexuality and sexual activity, arguing in this way: Perhaps it is wrong to regard rape as anything more than an assault or an unlawful touching and perhaps the gravity of rape, as with other assaults, should be assessed roughly in terms o f the actual physical injury inflicted. The mere fact that sex, or sexual penetration, is involved would, on this view, be irrelevant as an aggravating factor. Most assaults, o f course, do not involve the penetration of a bodily orifice. But that fact alone cannot be what makes rape the most grave o f assault offenses. Imagine an individual who is motivated perhaps by contempt for the unwillingness of many people to try new foods and who assaults his victims in this way: He grabs them, holds them down, stuffs sushi into their mouths, and orders them to swallow it. Although such an individual should surely be punished for assault, w e would not expect (nor, I assume, want) his sentence to be as severe as what would typically be given for forcible rape. But what is the difference except that forced sex is sex and forced sushi is not? Thus w e cannot, I think, avoid reflection on the nature o f sex itself in any theory o f the crime o f rape. What, then, is so special about sex? The answer to this question is, I think, rather obvious: the importance of sex is essentially cultural, that is, there is nothing intrinsic about sexual assault that makes it objectively more serious than nonsexual assault. Our culture does in fact surround sexuality with complex symbolic and moral baggage, but it does not have to be this way, as the sexual revolutionaries of the sixties were fond o f pointing out. Sex is, o f course, biologically tied to reproduction; and, because o f this, evolutionary theory would teach us to expect that creatures would want to exercise control over their reproductive autonomy, which in part explains the origin o f some of the symbols and taboos and may even once have partially justified them by linking them to a fundamental human concern. Sex as potentially reproductive, however, cannot now justify the symbolism and taboos in a world o f easily available contraception and abortion. Thus 9

This applies, of course, only to rape victims who are not opposed on principle to contraception and abortion and assumes (a matter now of some doubt) that legal, safe, and reasonably inexpensive abortions will continue to be available. Consider, also, this grim thought: Sexuality is now, alas, more likely to be associated with disease and death than with reproduction. New symbolism and taboos may now be emerging to reflect this association. (Listen to the Leonard Cohen song "Everybody Knows.") In this new world, rape may be 9

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persons who want to continue conceptualizing rape as the most serious o f all assaults cannot, I think, rest the main part o f their case on issues concerning reproduction. Rather the case will be based on sexuality itself: perhaps the idea, which is still quite pervasive in our culture, that a person's sexuality is sacred, mysterious, precious, and even fearful because it is deeply tied (in ways Freud helped us to understand) to love and to the essence o f self and the meaningfulness of one's life (in a way that whether one's nose is bloodied, for example, typically is not). This may be why sexual assaults are typically more serious than most others. 10

11

Because I think that many of the most important facts about us are cultural facts, I am generally sympathetic to defining harm partially in terms o f those cultural facts. I am also sympathetic to the idea that a primary purpose of the criminal law is to protect people not merely from literal physical and psychological pain but also from acts that, given the cultural norms that define the symbolic meaning o f their lives together, are regarded as deeply wrong or degrading and as, in that sense, harmful. In short, I do not think that the criminal law must always be stopped in its tracks by this question: " I

analogized with reckless endangerment or even with assault with intent to kill. I can even imagine a world in which rape victims die of AIDS acquired from rapists and I can imagine this world finding a way to conceptualize rape as a homicide offense. I assume that most of us would want to regard as felony rape the forced genital penetration of a woman's anus or mouth or the forcing of an object (e.g. a broom handle) into her vagina. These acts, of course, carry no risk of pregnancy and thus "reproductive autonomy" does not strike me as the best slogan under which to protest them. 10

T

It is possible, o f course, that women are psychologically traumatized by rape because of a psychological response that is deeply encoded in their natures because, at a time in evolutionary history when sexual intercourse and reproduction were strongly tied, such a response was adaptive (even if it now is not--at least to the same degree). The criminal law could take account of this response in assessing the degree of harm in rape but such an accounting would of course be based, not on a tie with reproduction, but on the existence of the response itself. In other words, what matters is the subjective pain felt by the woman, not the evolutionary explanation for why she feels the pain. That this idea is still dominant in our culture shows, of course, that the sixties sexual revolution did not fully take. Most of us do not view sex as simply the pleasant scratching of an itch and do not view sex as strongly analogous to gourmet dining. If we did, we would accept my earlier sushi analogy. As my colleague Larry Winer has pointed out, a variant of my sushi example can be conceptualized as a grave harm once certain cultural norms are imagined—for example, the forcing of an orthodox Jew to eat pork. 11

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know that most people regard this act as harmful, but can it be proven—independent of belief and cultural norm—that the act really is objectively harmful?" I suspect that the criminal law could not exist at all if all o f its rules awaited a demonstration that the harms they seek to prevent really are harms in some culturally independent sense (whatever, i f anything, that might mean). Having explained my initial sympathy with the cultural approach, let me now explain some worries that I have about it that make me at least hesitant to adopt it as a final approach to the theory o f criminal wrong or harm. First, consider our present example o f rape: the idea that rape is seriously wrong because it involves an invasion o f the symbolic sanctity and mystery and fear with which our society, for better or worse, surrounds sexuality, particularly female sexuality. M y worry is: What if it is for worse? Is it possible that the only theory o f female sexuality that will retain rape as the most serious of all assault felonies is the very same theory that disadvantages women in other contexts? For example: One argument often given for not allowing female soldiers equal opportunity to serve in combat roles is the claim that they are, i f captured, vulnerable to rape—a special kind o f harm graver than any assault that a man is likely to suffer. Is it really in the interest o f the total and long-range emancipation o f women that their sexuality be regarded in this w a y ? 12

Second, those o f us who think o f ourselves as more enlightened than the general run o f our fellow citizens know that the symbolic nature o f evil and harm in our culture is sometimes skewed in ways that w e find impossible to

My worry here is similar to my worry about the lengths to which some writers on rape

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will go to make us regard adult women as hopelessly vulnerable (bad at conflict, socialized to be agreeable, etc.) with respect to men in all sexual encounters. The rhetoric of woman as essentially victim sounds to me a great deal like the language used, for example, by senior male partners in a law firm to defend their view that women attorneys should not be litigators because they are by nature ill-suited for such a confrontational task. The whole area of power between men and women needs, of course, to be explored in much more depth than a criminal law context allows. The "woman as victim" crowd probably does not have the whole story, however. I think that the actress Natassja Kinski may have been on to something when (if I recall correctly) she responded in this way to a reporter's expectation that she cluck disapprovingly over the director Roman Polanski's use o f his power to have sex with young girls: "You have it all wrong. It is beautiful young women who have all the power over middle-aged men."

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endorse. Suppose, for example, it just happens that most white women (or their male "protectors") regard it as a graver harm to be raped by a black man than by a white man. (Most of the states that formerly made rape a capital crime were southern, and some have speculated that racial fears may have played some part in the explanation for this.) Do w e then want to make the race of the defendant an aggravating factor in the crime of rape? If w e want to answer no to this question, then we must either admit that a theory o f criminal harm that defines harm in a purely cultural way is not acceptable or find an appropriate way to state the relevant cultural norm so that it does not have this seemingly racist implication. Third, there is the problem o f the rape of a prostitute. On the one hand, 13

I want to regard the rape of a prostitute as equally serious with the rape o f any other woman. On the other hand, it initially seems implausible to believe that a prostitute conceives of her sexuality in just the way that, as previously noted, would justify regarding rape as more serious than any other assault. T h e prostitute might seem to regard her sexuality, not as a sacred and mysterious aspect of her self-identity, but rather as a commodity to be traded on the market.

Should we then agree with those sentencing judges who

regard the rape of a prostitute as a crime to be punished less seriously than other rapes—perhaps because it is best regarded as, at least in part, a property crime? H o w might one argue within the frameworkI am suggesting for punishing the rape o f a prostitute just as severely as w e punish any other rape? There are several routes one might go: ( 1 ) There might be psychological evidence that prostitutes cherish at least certain aspects o f their sexuality in much the same way as non-prostitutes cherish theirs. T h e rape o f a prostitute often consists in forcing her to perform sex acts other than the ones for which she has explicitly contracted; and perhaps she keeps these acts out o f the market because she reserves them for her genuine love relationships. She may, in short, bifurcate her sexuality in complex w a y s — w a y s that do not become unworthy of protection simply because they are complex. (2) Even the fact that the prostitute sells her sexuality does not prove that it is not deeply tied to her most intimate sense o f self. When I write books, for example, I sell

Peter Arenella's comments on an earlier draft forced me to rethink this section on the rape of a prostitute. Whatever is now good in the section is more to his credit than to mine. 13

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(not for very much!) the contents o f my mind. This does not mean that I do not regard the contents of my mind as intimately tied to myself and would not feel deeply wronged and degraded i f someone, such as the inventor o f a mind-reading machine, perhaps could gain access to the contents o f my mind against my will. (3) Even i f we assume that prostitutes do place lesser value on their sexuality than do other women, w e still might want to punish the rape o f a prostitute severely to reaffirm the value that we place on sexuality. W e often punish to uphold systems o f rights and values that w e will sometimes maintain by punishing offenses even i f a particular victim, because of idiosyncratic preferences and values, has less than a normal interest in the values at stake. W e do this in part, o f course, for efficiency reasons. It might simply be too costly as a practical matter to bother individuating and so w e build our account o f harm around the typical case. Efficiency may even promote fairness here, since the typical case will almost certainly be the reasonably foreseeable case. Fourth, and related to the efficiency problem, is a problem of evidence. If the gravity o f rape is a function of how the woman regards her own sexuality, then evidence about her sexual past, which feminists want understandably and for a variety o f reasons to bar from rape trials, would seem to be relevant after all and perhaps should be admitted either at trial or sentencing. The woman's career as a prostitute might, for example, be taken as evidence that she does not place the culturally normal kind o f value on her sexuality and thus has been less harmed by an act o f rape than a person whose sexual values correspond to the cultural norm. ( A s previously noted, it might, of course, be too costly to bother individuating in this way. M y point is simply one o f principle. Professor Uma Narayan, in an unpublished paper, has argued persuasively that criminal harm should not always be conceptualized around the standard or normal case but should sometimes include the special sensitivities and vulnerabilities o f certain classes o f people—for example, minorities. If nonstandard sensitivity can be an aggravating factor, then surely nonstandard insensitivity can in principle be a mitigating factor.)

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Fifth is a problem raised by Michael Davis's well-known essay on rape.

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A s I interpret Davis, he is arguing that most people in fact do not regard rape as more serious than other aggravated assaults and thus that it is simply an illusion that there is a genuinely shared cultural norm that rape is o f a seriousness next to murder. His test for this is not to find out the norms to which people pay lip-service but rather to conduct certain thought experiments wherein people are asked to imagine having a choice between evils that they will experience and then to see how most people would make the choice. Davis speculates that most people, faced (say) with a choice o f being raped with a minimum of physical violence or being very badly beaten (an aggravated assault), would choose the rape—thus showing that w e in fact do not regard rape as more serious than assault and that, therefore, w e should not punish it more severely. Davis has given us much to think about here, but I am not totally confident about his test for the seriousness o f harms. If I had to choose between having my fingernail pulled out by a pair o f pliers or having my character believably defamed and my reputation destroyed, I think I would choose the latter purely because o f a physiological, reflexive response to the idea o f intense physical pain. I still believe, however, that the actual harm to me in the defamation case would be greater, and I am not persuaded that it is inconsistent for me to believe this simply because of my psychological inability to endure the nail pulling.

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Sixth, there is a problem for those committed to retributivism as a theory o f punishment. Retributivism depends, in some o f its forms, on the idea that people deserve to suffer for the evil that they do. But does it make sense to say that people deserve to suffer, not for the genuine evil that they do, but simply for violating (perhaps irrational) cultural norms? A s John Mackie

Setting Penalties; What does Rape Deserve?", in Law and Philosophy 3, N. 1 (April 1984). In conversation with me, David Dolenko has raised this puzzle for Davis's analysis: Surely I would much rather be the victim of attempted murder than successful robbery. Does this mean that robbery is really a more serious crime than attempted murder and thus deserves more punishment? 14

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once argued, retributivism is a test case for moral objectivity. I f all harm must be culturally defined, however, can the proper degree o f moral objectivity be attained? O f course, people can feel pain and distress when they are forced to do things that run contrary to the norms o f their culture, but should such pain and distress be conceptualized as genuine harm i f the norms are themselves irrational? Was Crito really harmed by facing public shame for violating the cultural norm that taught that he should help his friend Socrates to escape? Socrates—given his own theory o f harm—thought not. 16

Finally, it could be argued that rape should be punished more severely because o f its pervasiveness, not because the act itself is more serious or evil or harmful than other assaults. (When train robbers were once given exemplary punishments it was because o f an epidemic o f train robberies, not because anyone believed that robbing trains was actually more evil than robbing, say, banks.) Such reasons are also sometimes given for punishing so-called hate crimes as aggravated offenses. I f violence against women or blacks is epidemic and makes a whole class o f people fearful, then one might argue for greater punishment purely on the utilitarian ground o f the need for extra deterrence. The problem with this, o f course, is that exemplary punishments, whatever their utilitarian merits, are clearly unjust, more than the wrongdoer deserves. It may be that rapes tend to make all women fearful and thus harm the entire class o f women, but surely most rapists d o not have such group harm as their intention when they act, nor are most o f them even reckless about this. W i l l w e then dispense with normal worries about mens rea when the interests o f a whole group (women, blacks, etc.) are at stake? Having explored some o f the pros and cons o f a cultural approach to the harm o f rape, let me now m o v e to the other puzzles I wanted to discuss.

4. WHAT IS THE DIFFERENCE BETWEEN RAPE AND SEDUCTION? I assume that w e would all agree that it is sometimes permissible both morally and legally to obtain sex by the use o f threats and offers. " H a v e sex

Retributivism: A Test Case for Ethical Objectivity," in Philosophy of Law, Fourth Edition, edited by Joel Feinberg and Hyman Gross (Belmont: Wadsworth Publishing Company, 1991). 16

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with me or I will find another girlfriend" strikes me (assuming normal circumstances) as a morally permissible threat, and " H a v e sex with me and I will marry y o u " strikes me (assuming the offer is genuine) as a morally permissible offer. W e negotiate our way through most o f life with schemes o f threats and offers—with a smile and a pocketful o f change—and I see no reason why the realm o f sexuality should be utterly insulated from this very normal way o f being human. What is often called seduction strikes me, at least in part, as a system o f threats and offers. Some o f these (e.g., the ones noted) may be morally innocent, but others may not be. And some seduction techniques should not be thought o f as threats or offers at all. The common seduction technique o f flattery, for example, may simply be an innocent way o f evincing sexual desire; and being found desirable may be the very thing that causes sexual desire to arise in the person being seduced through flattery. This may be why flattery sometimes works, and I see nothing wrong with this. Sometimes, however, flattery is a calculated attempt to play upon a person's vulnerabilities—for example, a tacit offer o f ego support (or a tacit threat to withdraw such support) directed to a person with a fragile and limited self-esteem. Flattery used in this way strikes me as a kind o f exploitation and is thus not utterly without moral taint. So too for the false presentation o f self—for example, the presentation o f oneself as an unusually sensitive and caring person (which I have been told turns some women on) when in fact one's actual self is—shall w e say—more complex than this. This is not coercion but is a minor kind o f fraudulent misrepresentation, and as such is not utterly without moral taint. However, because the immorality involved in both cases strikes me as no greater than that used by a car salesman to exploit my fragile male ego by trying to sell me a car that looks like a penis or by an advertisement that stresses only the good points about the car to which I am drawn, I find it hard to get deeply indignant about these cases. A n dI certainly would find it hard to imagine a g o o d argument that seductive threats and offers o f this nature should be illegal, as they currently and quite properly are not. Let me, then, try out the following suggestion: The impermissible threats and offers that constitute rape (and distinguish it from even immoral

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seduction) are threats or offers to do things that are illegal. I f it is legally permissible for me to do X , then it is reasonable to assume, at least as a starting presumption, that it ought to be legally permissible for me to threaten 17

or offer to do X . This, o f course, is only a start. " H a v e sex with me or I will not put my renewal tab on my license plate by the legally required date" is a threat to do something illegal, but it is a poor candidate for a rape threat since it ( a ) threatens only a civil wrong and ( b ) does not put the victim or anyone else at any particular risk. Thus perhaps the threats that constitute rape should be at least (seriously) criminal in nature. Should it be a requirement for rape that the threat have the victim as its object? Consider this: Sex obtained by threat is felony rape i f consent to the

sex is secured by a threat to commit an inherently dangerous felony of which the person refusing sex (or someone close to her) will be the victim. So " H a v e sex with me or I will kill you (or your c h i l d ) " is felony rape on this model, but " H a v e sex with me or I will embezzle your funds" or " H a v e sex with me or I will kill forty strangers" is not: the former because the threatened conduct, though felonious, is not inherently dangerous; the latter because the person refusing the sex is not the victim. The root o f this idea is that the evil o f rape through threat depends upon exploiting intense personal fears that are not normally attached to business transactions and to unknown third parties. 18

Suppose, however, that one adopts a moral rather than a psychological theory o f coercion that does not rely on the idea o f fear making some decisions psychologically impossible but rather on the idea that some decisions, given a proper weighing o f alternatives, are morally impossible for a morally sensitive agent—a sensitivity rendering such agents open to what might be called "moral blackmail." On this theory, one might regard the

On this theory it will not be legitimate to make blackmail a crime, because a blackmailer typically threatens to do things he has a full legal right to do, that is, circulate or publish true information.I accept this and have indeed argued elsewhere that, in principle, blackmail should not be a crime. see my "Blackmail: A Preliminary Inquiry." in The Monist 63, N. 2 (April 1980). 17

If one adopts this model, one might still want to make provision for protecting persons possessed of pathologically idiosyncratic attachments and fears if the defendant knows of and exploits those attachments and fears. 18

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threat "Have sex with me or I will kill forty strangers" as ( i f resulting in sex) constituting rape—not because it was psychologically impossible (given her fears) for the woman to refuse but because it was morally impossible (given her moral convictions) to refuse. Her inability to refuse is o f the kind expressed by Luther when he said " H e r e I stand; I can do no other"—not, I take it, a remark whereby he tried to identify himself as a psychological compulsive. 19

I suppose that everyone would agree that sex obtained by an impermissible criminal threat o f some sort is rape. But is such a threat necessary? Consider these cases: (1) "Have sex with me or I (your foster guardian) will send you back to that terrible state facility from which you came." (See Commonwealth v. Mlinarich. ) ( 2 ) "Have sex with me or I will fire you (or fail you in the course, or not promote you, etc.)." ( 3 ) " H a v e sex with me and I will pay for the chemotherapy for your dying child" (an example developed by Joel Feinberg ). 20

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T h e problem is that the behavior in each o f these three cases may seem morally dreadful, but what is threatened is not criminal and perhaps not even illegal. The guardian has a right to send his charge back; the employer has a right to fire (or the teacher to fail); and the sexually motivated philanthropist has no duty to pay for the medical care for another's child. Should any or all o f these threats, if resulting in sexual intercourse, be rape? With respect to the first two cases, w e might argue that once the right is properly specified then the threatened conduct is not—initial appearances to the contrary—within the rights of the person doing the threatening. Perhaps a correct specification o f the guardian's right is not that he has a right to return the child simpliciter but rather that he has a right to return the child for the right sorts of reasons (e.g., further delinquent conduct). Perhaps the employer's right is not that he has a right to fire simpliciter but rather that he has a right to fire (and the teacher to fail) for the right sorts of reasons (e.g., tardiness to work, or poor academic performance). Thus these threats (in no way germane to the values that define the context) may be illegal (or should be illegal) even i f not criminal and thus may be good candidates, if not for

I have explored moral and psychological accounts of coercion in my "Consent, Coercion and Hard Choices," in Virginia Law Review 67, N. 1 (1981). 498 A.2d 395 (Pa. Super. 1985). See Harm to Self, Chapter 24, (Oxford: Oxford University Press. 1986). 19

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felony rape, at least for some legal remedy—for example, sexual harassment charges in the second case. It does not seem to me absurd, however, to believe that the present civil remedy offered by sexual harassment law is inadequate and to suggest that these acts should be regarded as some degree of criminal rape. I am much less inclined, however, to consider our sexually motivated philanthropist, w h o stands in no fiduciary or contractual relationship to the woman, as properly guilty o f any legal wrong. For w h o is his victim? Because o f his offer, the woman with the sick child has one more option in her life than she had previously; and thus I d o not see how she would in any way be benefited from a system that prohibited (and thus deterred) the offer that has been made to her. Perhaps it is the only chance she will ever have to save her child, and i f she values her sexuality more than her child she can simply refuse the offer. But why would she, as an autonomous person, not want the option o f at least considering the offer? It would, o f course, be exceedingly nice for the man to pay for her child's therapy with no strings attached. H e has neither a moral nor a legal obligation to d o this, however, and I do not think that we want a system o f criminal law that punishes people simply for failing to be exceedingly nice. 22

Suppose the demand in these three cases is not sexual but is o f a totally different order—for example, " M o w my lawn or I will send you back (fire you, fail you, not pay for your child's therapy)." N o doubt w e find these threats much less shocking to our moral conscience and are considerably less inclined, even i f w e think they are in some way improper, to have them criminalized. W h y is this? N o doubt it is the cultural belief discussed in the previous section that sexual services are special, intrinsic to the person, in a way that lawn mowing services are not special in ways that perhaps give rise to inalienable rights. The woman being offered a chance to save her child by trading sexual favors for medical payments is, w e might say, simply being lured into prostitution. So too, perhaps, for the victims in the other two cases. The wrongness, then, is simply the wrongness o f prostitution—a point obscured i f w e misleadingly try to conceptualize what is wrong here simply as coercion.

I am here drawing on some points I made in an earlier essay about the difficulty of finding a victim for the crime o f blackmail. See Murphy, supra, n. 17. 22

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But is prostitution morally wrong, and can it be criminalized on an enlightened theory o f feminist liberation?

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I shall leave this question

unanswered and shall pass to a discussion o f my third puzzle. 5. W H E N M A Y S E X B E O B T A I N E D T H R O U G H F R A U D ? M o r e specifically: When is sex obtained through fraud o f such a nature to merit treatment as a serious felony? When a man pretending to be a physician lures a woman into sexual intercourse by deceiving her into believing that the intercourse will cure her cancer, our moral sensibilities recoil; and w e are shocked to discover that this is not felony rape.

(See Boro v. Superior

Court. ) The retributivist within us wants to protest that he is surely as evil 24

and as deserving o f punishment as if he had deceived her into believing that it was not his penis but rather a medical instrument that was being inserted into her vagina, which would be felony rape. W e are thus, in this retributivist mode, inclined to argue that the legal distinction between sex obtained through fraud in the act (rape) and through fraud in the inducement (not rape) is absurd. I f there is any rationale for drawing and retaining this distinction, it must be to deal with this kind o f case: the man w h o obtains a woman's sexual favors by falsely promising her a mink coat.

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Tacky as it may be to get sex

with such an inducement, I doubt that many o f us would want to criminalize the sex so obtained as felony rape. Thus it is not surprising that, with these cases in mind, judges have generally refused to conceptualize sex obtained by fraud in the inducement as rape. If we want to conceptualize sex obtained by the false promise o f a cancer cure as rape but not i f obtained by the false promise o f a mink coat, is there any consistent way to do this? Perhaps. Recall the earlier discussion o f the symbolic significance o f sexuality, the nearly sacred value placed upon it by

On this issue, see the essays by Laurie Shrage and Carole Pateman in Feminism and Political Theory, edited by Cass R. Sunstein (Chicago: University o f Chicago Press, 1990). 163 Cal. App. 3d. 1224, 210 Cal. Rptr. 122(1985). 23

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"Where consent to intercourse is obtained by promises of travel, fame, celebrity, and the like—ought the liar and the seducer to be chargeable as a rapist? Where is the line to be drawn?" Boro v. Superior Court—defending the doctrine that sex obtained through fraud in the inducement is not rape. 25

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many persons in our society. Perhaps w e could coherently conceptualize as rape any sex obtained through fraudulent inducement so long as the nature

of the inducement itself does not provide strong evidence that the victim does not value sexuality in the way characteristic of the norms we seek to protect. A woman trading sex for the promise o f a mink coat would reveal such deviation (and thereby reveal an interest less worthy o f protection), whereas a woman trading sex for life would not. For those who like to think the basic issue in cases like this is power and not sex, consider this example: I persuade Polly ( w h o believes she has terminal cancer) that my lawn contains a unique variety o f grass—the pollen from which, if inhaled, will cure cancer. I thereby get her to m o w my lawn (a small, easily m o w e d lawn) once a week. Is what I have done just as bad as the case above where sex is fraudulently put forward as the cure? There will, o f course, be hard cases here, but perhaps the distinction based on what the inducement tells us about the way in which the woman values her sexuality is at least a start toward an analysis that does not condemn us to retaining the counterintuitive claim that sex obtained by fraud in the inducement could never constitute rape. This would be worth pursuing at 26

greater length, but the shortness o f space compels me to turn to the fourth and final puzzle. 6. W H E N M A Y B A T T E R E D W O M E N

KILL?

I do not wish to be a sucker for the latest trendy piece o f psychobabble, but I am willing to concede that there is indeed a psychological pathology properly described as the "battered woman syndrome."

27

A woman is said to

exhibit this syndrome when she continually returns to the husband who beats, rapes, and threatens her and her children with death even when she believes that the death threats are sincere and that she very likely will be killed. I have

T h esame cautions I discussed about efficiency, etc. apply here as well. My point here is simply one o f principle. The classic work on this syndrome has been done by Lenore E. Walker in her The Battered Woman (New York: Harper and Row, 1979) and The Battered Woman Syndrome (New York: Springer, 1984). For an overview and more recent bibliography on the issue of battered women and the law,seeJustifiable Homicide by Cynthia K. Gillespie (Columbus: Ohio State University Press, 1989). 26

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no idea what the underlying mechanism is that explains this behavior, and many o f the psychological accounts I have read seem circular—that is, they are jargon-filled ways o f simply repeating that she manifests the noted behavior. This does not worry me, however, for I do not think that we always need an underlying mechanism or theory properly to regard patterns o f behavior as pathological or addictive. What better reason could w e have for saying that a person is neurotic (or worse) than simply the fact that the person systematically acts contrary to what she perceives as in her most fundamental interest, fails to understand why she continues to do it, and views herself as unable to stop herself from doing it? I thus grant the existence o f the battered woman syndrome and see no problem with its limited evidential use in criminal law—for example, to rebut the presumption that juries might otherwise adopt that the fact that the woman did not leave shows that the husband's abuse o f her could not have been as bad as she claims. I can even see the syndrome playing some role in negating mens rea or as an excuse, perhaps functioning analogously to insanity or diminished capacity.

In

whatever sense o f "can't help it" that operates to excuse in the criminal law, perhaps some battered women really can't help it when they kill their abusive husbands. They are more to be pitied than punished, more to be helped than further hurt.

Granting all o f this, however, is not the same as accepting that

such women act with justification.

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For note that to which w e are committed

if w e conceptualize their defense as a justification: ( 1 ) W e , as a society, stand prepared to encourage such behavior, or at least to regard it as legitimate. ( 2 ) Because we regard the behavior as legitimate, it would be improper to have the acquittal o f such persons followed up by other legal consequences—for example, hospitalization for psychiatric observation, loss o f the right (even temporarily) to o w n a weapon, or loss (even temporarily) o f the custody o f

The critique I develop in the following pages may soon ( I hope) be outdated and thus unnecessary. Some recent feminist writers on the battered woman syndrome are cautious in their development of a defense based on the syndrome and are inclined to conceptualize it more under the heading o f an excuse than as a justification. See. for example, " T h e Excuse of Self-Defense: Correcting a Historical Accident on Behalf of Battered Women Who Kill," by Cathryn Jo Rosen in 36 American University Law Review 11 (1986). Even Lenore Walker in her second book on battered women develops an account o f the syndrome that does not conceptualize it as a purely psychological pathology to the same degree as she did in her first book. 28

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o n e ' s children. ( 3 ) Because w e regard the behavior as legitimate, third parties -hired assassins, perhaps?—ought to be allowed to assist the battered woman in attaining her legitimate objective. N o n e o f these ( I think) absurd consequences, o f course, would follow from accepting the battered woman syndrome as an excuse. Just because w e sometimes excuse homicidal lunatics, for example, does not mean that we allow third parties to assist them in acting out their insane delusions. It should be obvious that I am deeply skeptical concerning the use o f the battered woman syndrome as a justification for homicide. Before rejecting it entirely, however, let us consider in more detail how some have suggested that it might be legitimately employed in this regard. The most frequently made suggestion for linking up the battered woman syndrome with justification is through the justification o f self-defense. Very roughly, the law allows a person W to use deadly force against (i.e., kill) another person M if ( 1 ) M is an unlawful aggressor against W, ( 2 ) M poses an immediate threat to inflict death or grave bodily harm on W, and ( 3 ) the use of deadly force by W is necessary in order for W to escape M's threatened consequence—that is, there is no nonlethal way (e.g., retreating or running a w a y ) that will allow W to avoid the consequence. The law will typically allow this defense only if the defendant (W) acts in the reasonable belief that the threat is immediate and in the reasonable belief that the use o f counterdeadly force was necessary in the specified sense. It should now be obvious why the battered woman faces an uphill fight in attempting to argue self-defense. She typically will kill her batterer while he is asleep or drunk (and thus obviously poses no immediate threat to her), and

I suspect that some people favor acquittal for the woman who kills her batterer simply because they conceptualize her act as the administration of just punishment and therefore think that the man probably deserved what he got. Although I have no doubt that some of the killed batterers probably did indeed get their just deserts in some cosmic or moral sense, I do not think that a civilized society can allow vigilante activity to figure so blatantly in a justification for conduct that would otherwise be criminal. A civilized society must be committed not simply to the correct outcome but also to the use of the correct process for obtaining that outcome. 29

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she could avoid being hurt or killed simply by leaving the house (and thus it seems obvious that her use o f deadly force is not really necessary).

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To overcome these problems, defenders o f the use o f the battered woman syndrome in the law o f self-defense may argue for a radically subjective standard for the concept o f reasonable belief in this justification—that is, argue that the standard should not be that o f a reasonable man, nor even that o f a reasonable woman, but rather that o f a reasonable battered woman. Thus, according to this suggestion, jury members should vote to acquit (under self-defense) i f they believe that i f they were battered women then they would probably regard the threat as immediate and the use o f deadly force as necessary in these circumstances. This line o f thought strikes me as deeply problematic, since it essentially destroys the entire distinction between excuse and justification.

When a

delusional psychotic says he kills in order to protect himself from the death rays emanating from the tongue o f Mr. Brown (a dangerous assassin from Mars), we should--according to the logical progression o f the above line o f thought

regard his killing as justified self-defense.

W h y ? Simply by

applying the standard o f the reasonable psychotic, a standard that invites each member o f the jury to ask himself " I f I were crazy as hell, might I believe thatI was under immediate threat o f death and that my use o f deadly force was necessary to repel the attack against m e ? " The answer would surely be yes, and thus acquittal would surely be in order. A l s o , since the acquittal is based on a justification, w e should g i v e him his gun back, immediately restore him to the bosom o f his family, and release (perhaps even pin medals o n ) any persons who assisted him in performing his justified act. This is, o f course, utter nonsense. But is the battered woman simply a kind o f lunatic? I think it is too hasty to say this, because I cannot help feeling that she may be painfully and unfairly caught in an objective bind unlike that world o f fantasy I sketched for the psychotic. Is there not some way o f conceptualizing her conduct as

An extra complexity, which I shall not pursue here, is that in some jurisdictions the retreat requirement is not imposed when a person is in his or her own home. In these jurisdictions, the battered woman may have a better chance of arguing that her use of deadly force was necessary- unless she lives in a jurisdiction that frees one from the retreat requirement in one's own home only if the aggressor is not also in his own home. In any event, it will still be hard to establish that the threat was immediate. 30

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justified that does not commit us to accepting the test o f the reasonable psychotic and regarding his conduct as justified as well? Let me try out the following: When the battered woman syndrome is described (see State v. Kelly ), the list o f identifying marks is typically a very 31

mixed bag o f factors that belong in very different categories. The following two features, for example, have (along with many others) been said to be characteristic o f the syndrome: ( 1 ) extremely l o w self-esteem that makes a woman dependent upon the pitifully small gestures o f love she occasionally gets from her batterer and ( 2 ) a history o f attempting to leave the spouse and 32

then being pursued and forced back. Note how radically dissimilar these two traits are. T h e former is truly a psychological trait. It is the sort o f thing that might well form part o f the definition o f what w e would properly call a syndrome or even a pathology and seems naturally fitted to play a rote in an excuse, not a justification. The second, however, is a trait o f a totally different sort. It is not a fact about the woman's psychology at all—indeed it makes no reference to her psychology and is not the sort o f thing upon which w e would want or need expert psychological testimony.

It is simply an objective statement o f what has

happened to her when she has tried to leave —a statement, let us suppose, that she has called the police and they have not responded (or brushed o f f her complaint as merely a domestic dispute) or that she has gone to a friend's house or to a shelter for battered women and has been forcibly dragged back by her abusive husband, again with no interference from the police. If facts o f this second sort are present, then I begin to see the possibilities o f a justification and not merely an excuse. Following the logic (though hopefully with different results) o f the prison escape cases,

33

I would be

inclined to argue that some o f these women should perhaps be acquitted—not on self-defense—but on the justification of necessity or choice of lesser evils. It strikes me as deeply unfair that an individual should be expected to obey the law that criminalizes escape from prison if such escape is his only way to avoid being the victim o f repeated homosexual rape. I f he chooses escape (an

Supreme Court o f New Jersey, 478 A.2d 364 (1984). If this is really true, then one cannot help wondering what is going to reinforce her selfesteem after her batterer is dead. 31

32

See, for example, People v. Unger, Supreme Court o f Illinois. 66 Ill. 2d 333. 362 N.E. 2d 319 (1977). 33

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evil) over being the victim o f rape (another e v i l ) , I am persuaded that he has chosen the lesser o f these two evils and that his conduct should be regarded as justified. So too, I would argue, for the battered woman described above. If she has taken all possible legal means to escape her abuser and these have failed, she is then faced with a choice: to continue to be abused and perhaps killed (an evil) or to kill the husband (another evil). If she concludes that her innocent brutalization and death is a greater evil than the death o f an abusive aggressor, I should be inclined to agree with her. O f course, as a practical matter, courts may not accept this justification, just as they have generally refused to accept it in the prison escape cases. They will no doubt be tempted to maintain the fiction that legal remedies are always available and thus that the unlawful remedy is never really necessary. I think this is a false and selfdeceptive response for some o f the escape cases, however, and am prepared to concede that it may also be the wrong response for some homicide cases where the defendant is a battered woman o f the kind here discussed. Because the state either cannot or will not protect her, there is a sense in which the social contract is off in her case; and it is simply unfair to expect her to assume the level o f risk that remaining with her husband imposes.

I am

inclined to see her killing o f the husband as analogous to a slave killing an abusive slave-holder as his only means o f escape—conduct I have no hesitation in regarding as justified. In short: There are two kinds o f battered women—each exhibiting a different sense o f "cannot leave" in the sentence "She cannot leave her husband." If w e are speaking o f women who psychologically cannot leave their abusive spouses, then I am sympathetic to regarding their homicidal conduct as sometimes excused, but not as justified.

If, however, w e are

speaking o f women who physically cannot leave, then many o f the objections to regarding their homicidal conduct as justified may, at least in some cases, disappear.

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One might conceptualize this justification as self-defense if one follows the provision of the Model Penal Code (2.02) that seeks to define both recklessness and negligence in terms o f what a law-abiding person (i.e., the legal notion of a reasonable person) would believe in the actor's situation. For reasons previously noted, I would not want the actor's situation understood in such a way that it includes the actor's psychological pathologies.I size and strength differential between the two spouses and past history of dealing with the 34

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7.

CONCLUSION

Let me now bring to a close this somewhat random collection o f ruminations on women, violence and the criminal law.

I realize that I have raised far

more questions than I have answered and that most o f the suggestions I have made are very tentative and inconclusive.

I assume, however, that one

legitimate kind o f philosophical endeavor is the mere raising o f interesting questions and suggestions that provoke fruitful lines o f further inquiry and discussion.

But have my questions and suggestions been interesting and

provocative in this way? That, o f course, must be left for the reader to decide.

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abusive spouse. These objective factors surely are relevant to assessing whether the defendant was reasonable in believing that, for example, there was an immediate risk to her of death or grave bodily harm. A reasonable belief is a belief based on relevant evidence, and these facts are surely relevant evidence. See State v. Wanrow, Supreme Court of Washington, 88 Wash. 2d 221, 559 P.2d 548 (1977). Even in many of these cases, it will not be clear that the woman is justified in killing if there is some action short of killing, for example, a crippling shot to each kneecap, that would keep the abusive spouse from tracking her down and forcing her to return. An earlier version of this essay was presented as an invited address to a symposium on the philosophy of criminal law at the meetings o f the American Philosophical Association (Pacific Division) in 1992. Other members of the symposium were David Dolenko, Donald Hubin, and Uma Narayan. I am very grateful for the helpful discussion they provided. I am also grateful to Peter Arenella, Larry Winer, and James Weinstein for their comments on an earlier draft. Whatever is good in the paper I dedicate to Joel Feinberg with esteem and affection. 35

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INDIAN CASINOS A N D THE M O R A L I T Y OF G A M B L I N G I.

INTRODUCTION

1

T h e recent development and success o f Indian casinos has generated substantial public policy debate on gambling. Those who oppose casino gambling often base their opposition on the claim that gambling is, in some often not clearly specified sense, immoral. The purpose o f the present essay is to make a start toward understanding and assessing this claim. Let m e note at the outset that I shall in m y remarks always use the term " g a m b l i n g " and never the euphemistic term " g a m i n g " that is favored by casinos and those w h o support them. N o sane person could object to all games, but it is quite possible for a reasonable person to object to games that involve putting significant amounts o f one's money and property at risk. These are the games that involve what w e ordinarily call gambling, and they will be the focus o f m y remarks here. Let m e also note thatI will not presume to make any legal judgments about such matters as tribal sovereignty or the degree to which citizens and their legislators have a legal right to shut down or curtail tribal casinos. Such matters would carry m e far outside o f m y areas of expertise. Sometimes citizens and legislators can attempt to act in a good moral cause but find themselves legitimately prevented from following through on their attempt because, for example, o f constitutional restraints. So, while I have great moral sympathy with those who seek to eliminate pornography that degrades women, I also accept that the First Amendment quite properly precludes most coercive uses o f state power to attain this end.

This is a slightly revised transcript o f a public lecture that was presented at a Symposium on Indian Gaming that was held at the Arizona State University College o f Law on October 11-12. 1996. The lecture benefitted enormously from earlier discussions with Ellen Canacakos, Peter DeMarneffe, Ira Ellman, and Rebecca Tsosie; but it was never intended as—nor does it now pretend to be—a deep or final scholarly analysis o f the moral and social policy implications o f gambling. Its purpose is simply to gel some ideas on the table for discussion. For various legal perspectives on Indian casinos, see the essays in Arizona State Law Journal, Volume 29, Number 2, Spring 1997. 1

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Thus even i f tribal gambling is judged to b e immoral, and citizens and their legislators thereby act properly in doing what they can to curtail it, there may—for all I k n o w — b e statutory, constitutional and treaty barriers that will place great limits on their activities here.I am concerned in this essay simply with the issue o f what w e , as rational and moral citizens o f some American state, ought to think about gambling. I will leave it to others to determine the degree to which such thinking can he realized in our own legal system. 2. G A M B L I N G A S A M O R A L I S S U E What does it mean t o claim that a practice is immoral? I think that it can mean any or all o f the following: 1. The practice is contrary to the accepted cultural and/or religious mores of the

community. I will call this the cultural relativist account of immorality. 2. The practice, on balance, causes more social harm than social good.

I will call this

the utilitarian account of immorality. 3. The practice is unjust in that it violates the basic rights of those whom it affects. In

homage to the philosopher who brought this vision to its highest level of sophistication, I will call this the Kantian account of immorality. 4. The practice tends to exploit or -even worse—create traits of character that are vices—traits that undermine the proper and healthy flourishing of human beings. In

homage to the philosopher who brought this vision to its highest level of sophisticat i o n , I will call this the Aristotelian account of immorality. Like utilitarianism, this notion of immorality may be called teleological orconsequentialistin that it bases moral assessment on results or effects. Its scope is much narrower than utilitarianism, however, in that it focuses mainly on only one object: character In summary, to call a practice immoral is to say at least one o f the following: it contravenes community values, it causes more social harm than social good, it unjustly violates important rights o f persons, or it corrupts the characters o f persons. If Indian-sponsored gambling is immoral, then, it must be because it falls victim to at least one o f these arguments. does it? It would be efficient to move immediately to a consideration o f this question, but three additional preliminary distinctions will,I think, ultimately prove useful.

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First, it is important to distinguish between what I will call an internal and an external scope of the above arguments. On the latter, it is argued that the practice is immoral because of its impact on persons outside the tribe—e.g., non-Indian citizens. On the former, it is argued that the practice is immoral because o f its impact on tribal members themselves. Second, it is important to distinguish between the immorality o f an activity itself and the immorality o f offering opportunities for that activity to others or assisting others in its performance. A person who commits suicide out of clinical depression is perhaps not morally responsible and thus perhaps should not be morally condemned. A person who assists this depressive to commit suicide, however, may be a legitimate target for moral blame. And consider our present topic: Suppose that there are only two sorts o f gamblers—those who pursue gambling as occasional recreation and those who are compulsive. One could hold that neither sort is subject to moral condemnation—the first because he acts legitimately, the second because he is sick and not fully responsible. Such a judgment would be consistent, however, with the moral condemnation of someone who offers the opportunity to gamble to persons o f the second sort (compulsives)—either by targeting them explicitly or by targeting those o f the first sort but failing to take adequate precautions to screen out those o f the second sort. Third, it is important to distinguish between the immorality o f a practice and the legitimacy o f the state interfering with or prohibiting that practice. That a practice is immoral always, I think, counts as a good reason in favor o f the state interfering with or prohibiting it; but often this reason is not sufficient because outweighed by other values. These values might be legitimate liberty interests, the costs o f prohibition, the unfairness o f prohibition, or the corruption o f character that prohibition might itself create. Some persons oppose the existence of criminal laws against the sale o f crack cocaine, for example, by arguing (whether rightly or wrongly) that criminalizing such an admittedly immoral practice represents an overly costly and inefficient use of limited police resources, unjustly burdens racial minorities, encourages such corrupt police practices as entrapment, and (though fewer would argue this) perhaps even compromises what ought to be regarded as a legitimate liberty. (In dealing with the perceived immoralities o f a sovereign nation, o f course, we might find even additional reasons for resisting prohibition.) Thus even a showing o f immorality does not by itself

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justify state interference or prohibition. argument.

That would require a separate

But is the practice o f gambling immoral in any o f the previously noted senses? I will now m o v e to a consideration of this question. The final answer to the question is not, o f course, merely a matter o f philosophy but will be heavily dependent upon empirical facts—e.g., the percentage o f gamblers who are compulsive and the degree to which casinos could or would screen them out. A l l I can do here is lay out some general principles relevant to the moral evaluation o f gambling and thereby indicate what kinds o f facts or research are necessary in order to support a final moral judgment. Let me begin by noting that, by my lights, the most persuasive argument that gambling is immoral is that the practice corrupts or exploits the already corrupted characters o f those persons who are involved with the practice. Thus I will spend the most time on this argument. Before doing this, however, I will briefly discuss the arguments from relativism, general social utility, and justice. 3. G A M B L I N G A N D C U L T U R A L

RELATIVISM

Consider the argument that gambling is immoral for relativist reasons— that it is contrary to the accepted norms o f the population. But which population—Indian or non-Indian? I f the latter, the relevance o f the point might be challenged. Normally, one would not even consider interfering with the affairs o f another culture unless one could argue that one o f that culture's practices is objectively immoral—something on a par, say, with the female genital mutilation practiced by some African cultures. But i f all one can say against a practice is that our own culture simply has a different norm, this hardly seems to provide the basis either for action against the other culture or for an attempt to prohibit citizens from our own culture from visiting the other culture and taking part in its practices. This is, I think, how most Americans deal with the Mexican sport o f bullfighting. Our norms do not countenance this sport—indeed, because it is a blood sport that causes great animal suffering it might even be regarded by some as objectively immoral—but w e make no efforts to intervene in the affairs o f Mexico to prevent this activity. N o r do w e d o anything formal to dissuade our own citizens from going to Mexico in order to attend bullfights. Thus i f nonIndians are going to mount a rational case against Indian casinos, they might

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need a stronger argument than m e r e l y noting that there is a difference b e t w e e n Indian and non-Indian norms here. But perhaps this is too quick. M i g h t not a culture have a right to attempt to preserve its o w n n o r m a t i v e structure and to d e f e n d that structure against external challenges? ( T h o s e w h o speak for Indian tribes often m a k e this c l a i m o n their behalf: and, i f this is a legitimate c l a i m for them to m a k e , it must surely- in c o n s i s t e n c y — h o l d for non-Indian cultures as w e l l . ) T h u s our general indifference to M e x i c a n bullfighting m a y b e based in large part on the fact that it is a form o f amusement aimed mainly at M e x i c a n c i t i z e n s and one that does not tend to target large numbers o f A m e r i c a n s and thus poses no real threat to o u r o w n normative structure.

I f the M e x i c a n s started

marketing bullfighting in a radically different w a y o r i f they started o p e n i n g up casinos near the border, h o w e v e r , and i f those businesses started to have a significant impact on A m e r i c a n normative structure, then A m e r i c a n society might understandably attempt to bring pressure to bear on M e x i c o or on our o w n citizens to curtail the activity in an attempt to preserve our

own

n o r m a t i v e structure. M e x i c o is, o f course, a s o v e r e i g n nation and thus no doubt has a right to d o w h a t e v e r it wants w i t h respect to either bullfighting or casinos. This d o e s not mean, h o w e v e r , that A m e r i c a c o u l d not d o m a n y things that w o u l d make these business options h i g h l y unattractive to them. But is strong o p p o s i t i o n to g a m b l i n g a part o f non-Indian A m e r i c a ' s n o r m a t i v e structure—strong enough to justify seeing Indian casinos as a threat to that n o r m a t i v e structure? I am not sure.

Perhaps I run in

nonrepresentative circles, but I k n o w very f e w p e o p l e w h o regard recreational g a m b l i n g as contrary to any v e r y important norms. W h e n m y friends and I encounter a person w h o has returned from L a s V e g a s for a w e e k e n d at the casinos, we d o not normally treat this person as a social pariah. O n e must not m a k e the mistake o f thinking that a certain kind o f uptight Protestantism (Puritanism)— suspicious o f all forms o f pleasure—defines the cultural norms for all A m e r i c a n s . T h e recent catechism o f the Catholic Church, for e x a m p l e , teaches that g a m b l i n g is m o r a l l y harmless so long as it is practiced with moderation and remains consistent with the satisfaction o f o n e ' s o b l i g a t i o n s . My tants

hunch is that most A m e r i c a n s — i n c l u d i n g

most

American

Protes-

h o l d a similar v i e w .

A l s o , i f the dominant culture clearly had a strong n o r m o f o p p o s i t i o n to g a m b l i n g in general, it is hard to see h o w that norm c o u l d b e squared w i t h d o g tracks, horse racing, b i n g o nights at religious or charitable organizations,

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or—most obviously—state lotteries. When the state itself is in the business o f running a gambling enterprise, it is hard not to suspect that its cries against Indian casinos are more an expression o f fear at its own loss o f revenue than any genuinely normative objection. Perhaps lotteries are different in some significant way from casinos— e.g., perhaps they attract fewer compulsive gamblers—but, unless this can be shown, it is hard not to charge with hypocrisy any state government that simultaneously runs its own lottery while seeking to block Indian casinos on the grounds that they are immoral. I might mention in passing, by the way, that state lotteries initially strike me as much harder to justify than tribal or private gambling. If the state is running its own gambling operation, it is in effect endorsing and encouraging gambling. (Note the T V ads that many states—including my own state o f Arizona—use to lure their citizens into regular play.) State toleration is not the same as state endorsement, however, and may be based on values—e.g., respect for freedom of choice or tribal autonomy—that in no way express approval of the tolerated practice. The government, although it tolerates the sale o f tobacco and pornography, may consistently mount campaigns to discourage those practices—something it could not consistently do i f it decided to raise revenue by manufacturing and selling its own cigarettes or by producing its own sex films. Thus i f the state wants to condemn and discourage gambling, it should probably first get out o f the gambling business itself. S o far I have discussed the degree to which, i f at all, casino gambling is contrary to the norms o f non-Indian America. But what about the Indian tribes themselves? Is casino gambling contrary to any o f their important norms? This is, o f course, a question that it would be presumptuous for an outsider to attempt to answer with any confidence. M y hunch, however, is that the answer probably varies from tribe to tribe. Some tribes, with gambling games as a part o f their traditions, may well see casinos as simply an extension o f those traditions. Other tribes may have traditions that condemn gambling; and these tribes, presumably, would simply not open casinos—the course so far chosen by the Navajos—unless driven to by grave economic necessity. I assume that all tribes, however, would at least worry that the extensive development o f casino gambling and its associated life styles might undermine over time some o f their venerable traditions—traditions already hard to maintain given the pressures o f the outside

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T h i s is their worry and a matter for them to decide, o f course, and I

doubt seriously that they need any counsel from outsiders in the matter.

4. THE SOCIAL DISUTILITY OF GAMBLING Let m e n o w m o v e from cultural relativism to a consideration o f the utilitarian objections t o gambling.

What about the argument that the practice o f

g a m b l i n g produces more bad than good social consequences? The good consequences arc, I take it, obvious: recreational pleasure for many o f those w h o do gamble and economic benefit for those w h o profit from lotteries and casinos.

Putting aside the possible effect o f gambling on character—a point to be considered separately later—what might the bad consequences be? I can think o f o n l y three: ( 1 ) the tendency o f gambling to attract organized crime and all the social problems that this occasions; ( 2 ) the tendency o f gambling

at least casino g a m b l i n g

to change the character and appearance

o f a community (the public environment) in ways that are, at the very least, unaesthetic: and ( 3 ) the tendency that gamblers might have to spend their resources on gambling rather than on more socially productive objects—e.g., p r o v i d i n g for their families There is no doubt that casino gambling has historically been associated with organized crime. Even when organized c r i m e is not running the casinos, it seems to surround casinos with the criminal activities that tends to follow gambling—e.g., prostitution and loan sharking. But surely the fact that an activity attracts immorality does not s h o w that the activity itself is immoral. Those w h o condemn gambling as i m m o r a l because it attracts prostitution should then condemn professional baseball as immoral because it has in the past attracted excessive gambling. But w e have on the whole successfully severed the corrupt connection b e t w e e n professional baseball and gambling, and I think that the burden o f argument should be on those who claim that we could not—with a set o f thoughtful regulations activities as prostitution.

sever the connection between gambling and such I f the sole problem connected with gambling is

organized crime, a free society would probably be better advised, at least as

See, for example, the New York Times story on June 17, 1996, concerning the way that casino gambling is disrupting tribal governance among the Oneidas. 2

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an initial strategy, to attack organized crime itself rather than to attack gambling. T h e reason for this is that free societies—by definition have a preference for the least intrusive remedies and will adopt more intrusive remedies only if the least intrusive ones fail as might, for all I know, turn out to be the case with respect to casino gambling and organized crime. O f course, when people fear the collateral activities associated with casino gambling, it is not always organized crime that they have in mind. Sometimes their worries are aesthetic and cultural. At the risk o f revealing myself as a cultural snob, I must confess that my own revulsion at casino gambling is partly of this nature. I despise Las Vegas—regarding it as a monument to all that is shallow and superficial in our consumerist culture and dread the thought o f m y own city becoming a carbon c o p y o f that city with all the neon lights, prostitution, and (worst thought o f all, perhaps) the visible presence o f Wayne Newton and Liza Minelli. I would see this as, at the very least, a kind o f aesthetic pollution; and I suspect that many o f my fellow Arizonans agree with me here. But what does this have to do with Indian casinos, you might well ask. Just this: It is perhaps not unreasonable to fear the spread o f casino gambling from the Indian communities to non-Indian communities a spread that might arise because of the pressure o f competitive economics. If Indian casinos begin to draw away significant business from local resort industries, then- in order to compete—these resorts might exert enough pressure on state legislatures that they would he allowed to open casinos also. Thus casinos, o f no great interest to many non-Indians while confined to the reservations, may become an object o f dread if one comes to think that their presence might eventually impact the quality o f the non-Indian environment. In short: What might promote utility within the Indian communities might well be disutilitarian for surrounding communities and thus provide a rational basis for non-Indian opposition to Indian casinos. What about the final utilitarian argument—the argument that gamblers waste their resources o n gambling and neglect such important social responsibilities as care for their families? First o f all, I would want to ask o f what percentage o f gamblers this is true? I suspect that it is true only for those gamblers who are compulsive, and thus I will postpone a lull discussion o f this group until I explore the general issue o f gambling and character. I have no doubt, o f course, that much o f the money spent o n even noncompulsive recreational gambling could be spent instead in more socially

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productive ways, but it is unthinkable that we adopt—as a general principle—the use of state power whenever so doing will coerce people into spending more of their time in ways that optimize social and economic utility. If we did, what would happen to people who spend a great deal of their time watching mindless sitcoms on television? So much for the relativist and utilitarian objections to gambling. Let me now consider the Kantian worry: the possibility that gambling is unjust because it violates the rights of people.

5. THE INJUSTICE OF GAMBLING We normally think of injustice or rights violations when the state interferes with a freedom that we regard as legitimate. Censorship of legitimate speech, for example, is a clear unjust and rights-violative use of state power. Gambling, however, expands rather than contracts freedom— allowing one more source of recreational amusement. Thus it seems that gambling is not an injustice in the most obvious sense of injustice. There are, however, two less obvious ways in which a practice can be unjust. It may (1) upset just patterns of economic distribution or it may (2) take advantage of the helpless vulnerability of certain people. This is why we void some contracts as unconscionable even if those contracts were, in some sense, freely signed. It is also why we regard the crack dealer as involved in injustice since he caters, not to genuine free choice, but rather to helpless and hopeless addiction. Might gambling then be unjust either because it upsets just patterns of distribution or because it involves unfairly taking advantage of the vulnerabilities of those people who do gamble? What is a just pattern of distribution? Let us suppose, for a moment, that John Rawls is correct in his suggestion that all just societies will satisfy his Difference Principle—a principle that requires that the economy of a society be structured to benefit the representative most unfortunate of its members." Someone who subscribes to this principle of social justice might well use it to condemn gambling as a practice that, rather than benefitting the representative most unfortunate members of society, actually gives false illusions of 3

John Rawls. A Theory of Justice, Harvard University Press. Cambridge, 1971. Chapter 2.

3

2.

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"something for nothing" to the poor while it takes from them the little that they have for the benefit o f the rich. Is this a powerful objection to gambling? I have my doubts. It is certainly true that the chances o f very poor people hilling it big through gambling are exceptionally small, but I suspect that their chances o f doing this or even making a decent living in any other way are also exceptionally small. T h e thrills o f fantasy are sad, but perhaps not as sad as no thrills at all the only realistic alternative for many such people. It would, of course, be nice to live in a w o r l d where destiny is determined solely b y hard work and never by luck; but this is not the world w e live in. T h e world w e live in is one in which our social and economic location is highly dependent on what Rawls has called our luck on "the natural and social lottery," and thus what are w e to say to those w h o gamble in the hope that they will get lucky: that they should abandon dreams o f luck and realize that it is hard work that gets people where they want to g o ? Let us not delude ourselves and forget that w e live in a society that generally manifests a callous indifference to the poor. I would personally welcome some radical and comprehensive programs for their betterment, but I do not think that a ban on gambling unaccompanied by anything e l s e — i s a very promising beginning. A l s o ,I am inclined to think that a state lottery is much more adequately characterized as taking from the poor to g i v e to the rich than is Indian casino gambling. Given the historical poverty of some Indian tribes, the presence o f their tribal casinos is—at worst—the poor taking from the poor and is more often, I suspect, the poor taking from the middle class. (This will change, o f course, if Indian casinos are so successful that the Indians who control them become rich.) ThusI am not persuaded by the argument that gambling is immoral because it upsets just patterns of distribution captured by Rawls's Difference Principle. W e currently do not have such patterns, and I do not see that gambling is a major obstacle in the way o f our achieving them. Our selfishness and meanness are quite adequate for that What then o f the argument that gambling is unjust because it involves taking advantage o f human vulnerability? Well, there are vulnerabilities and there are vulnerabilities. Advertising a car in such a way that it leads insecure and lonely men to think that its purchase will make them sexually successful is to take advantage o f a vulnerability, but out society (whether rightly or w r o n g l y ) has decided that this kind o f advantage taking is fair

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game—certainly not to be outlawed. Selling cocaine is perceived to be different, but why? The answer, I think, is that a vulnerability to sexy cars is considered ordinary human weakness whereas vulnerability to cocaine is considered a serious vice, or character defect— in part because it is an

addiction. This point now places me at the final issue I want to discuss—the issue that generates what is, I think, the most common and also the most compelling objection to gambling: gambling is an addictive vice.

6. GAMBLING AS AN ADDICTIVE VICE THAT DEGRADES CHARACTER According to the Aristotelian tradition in ethics, the most important moral value is the exemplar, flourishing o f the human personality—the rich development o f the most essentially human o f our potentialities. This tradition regards as vices any actions or traits o f character that are in themselves contrary to exemplary human flourishing or that tend to undermine such flourishing. In Anglo-America civilization, the idea that gambling is a vice sometimes rests on puritanical notions o f contempt for material values or on the idea that the proper stewardship o f property precludes putting it at speculative risk. It is hard to see how these notions could condemn gambling without condemning capitalism itself, however—a point raised by Alexis de Tocqueville when he noted in 1835 that the American economy is like " a vast lottery." The forces o f virtue that are quick to condemn gambling tend to be silent on the activities o f those w h o speculate in stocks and real estate, and one cannot help wondering about their consistency here. A more consistent honesty was perhaps revealed by Sir Earnest Cassell, the banker to King Edward V I I , when he wrote: " W h e n I was young, people called me a gambler. A s the scale o f my operations increased I became known as a speculator. N o w I am called a banker. But I have been doing the same thing all the t i m e . " O f course, the devices o f capitalism could be defended in terms o f the many trickle down benefits to those on the lower rungs o f the economic ladder; but one could make a similar claim on behalf o f those tribal members who benefit from their casinos. Thus I do not think that, given the nature o f the American economy, w e can make a serious case against gambling by arguing that it involves the vices o f greed, material focus, and a failure o f

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stewardship. The most w e could argue is that some greedy exercises o f economic risk taking are required for capitalism's success in a way that casino gambling is not. Since this would at most show the fundamental unimportance o f gambling and not its immorality, however, a different sort o f argument would be required to make a case that gambling is a vice. It might be that such an argument is to be found in the concept o f addiction. Many people who regard gamblers with some mixture of pity and contempt do so, I think, because they regard gamblers as lacking in virtue in a way far more serious than is present in most players in the great game o f capitalism. They see them instead as possessing a deep vice or character defect that is degrading or debasing to their very humanity—one which, in its most extreme form, constitutes an addiction. On this view, gambling is to be condemned morally because it either creates or exploits or allows expression o f a debasement or degradation in the human personality. Persons holding this view do not see the state as needing a very powerful justification to interfere with gambling because they see the activity itself, being a vice, as intrinsically unworthy o f protection. It represents not a legitimate freedom but rather a debasement of freedom. At the risk o f being asked to surrender my credentials as a political liberal, I must confess that I am not unsympathetic to all claims that would justify state action to control vice and would indeed argue that state paternalism—the use o f state power to protect people from themselves—is sometimes justified. I would, for example, be strongly inclined to oppose any movement to generate wealth by legalizing brothels or sponsoring dwarf-tossing contests. This is because I currently believe—although I could possibly be argued out o f it—that both prostitution and dwarf-tossing involve personal degradation ( o f all involved parties) and that a decent society w i l l attempt to discourage such degradation even if in some sense those persons being degraded consent to their degradation. I would also oppose attempts to generate wealth by producing and selling hard drugs, since extensive use o f such drugs strikes me as both degrading and addictive—as lacking even the most basic element of voluntary choice and control. But is gambling like prostitution, or dwarf-tossing, or cocaine use? At first glance, I found it hard to see any important analogies here. Although casino gambling strikes me as a pretty silly way to spend time, I generally feel—cultural snob that I am—that this is true o f most o f the things average Americans do for amusement. But surely the fact that I and people like me

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find an activity silly is no argument that it is degrading or in any other important sense a vice. ( W e must all be careful not to let the biases that g o with our particular educational and social class be taken as evidence o f anything deep or important.) I tend to see casino gambling as somewhere in the general category that includes professional wrestling and tractor pulling contests—not my cup of tea, surely, but hardly matters o f moral debasement. Thus my initial inclination was to opt for a society that allows me to sip fine wine during the intermission at the opera at the same time other people are tossing down a few brews at the racetrack or tossing quarters into a slot machine. T o those who would interfere with any o f this, I was tempted to be flip and simply quote Jimmy Durante: "What a wonderful world this would be i f everybody would leave everybody else the hell alone." Such was my initial response but not, after further reflection, my considered response. In reaching a considered response, I was forced to consider and weigh with some care the possibility that gambling is not simply a silly amusement but is truly an addiction—compulsive behavior that represents powerlessness on the part o f the gambler. I f this is so, then gambling is not just a silly pastime. I f it is more like cocaine use—something that I have already admitted is a legitimate target o f state interference—then the Jimmy Durante quotation is rendered quite beside the point. But is gambling compulsive behavior—an addiction? This is a difficult question to discuss in the present age of psychobabble, since w e live in times when there is a tendency to medicalize all human problems and to make victims out o f everyone. Those who in more sexually repressed times were called "promiscuous" and in more sexually liberated times were called simply "randy" or "horny," are now called "addicted to sex." These changes in labels probably tell us more about underlying currents in society than about the behavior in question. Related to this is the problem that we often confuse psychological claims of compulsion with normative claims o f disapproval—pretending to base our disapproval o f the behavior on the fact that it is compulsive or addictive but really calling it compulsive because, on other grounds, w e disapprove o f it. W h o , for example, would have referred to Mother Teresa as compulsive in her g o o d works, or as addicted to charity—this in spite o f the fact that she would probably have found it just as hard to give up her works o f love as a heavy drinker would find it hard to give up his booze?

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Of course, some behavior probably merits being called addictive or compulsive in a less controversial sense because there is a physiological dependence with associated physical withdrawal symptoms. This seems to be true o f addiction to cocaine, alcohol, and nicotine. W e may think o f this

as true addiction. Is gambling an instance of true addiction? I am not sure about the answer to this question. Some researchers claim that persons can become addicted to their own adrenaline. I f this is true, then the adrenaline rush that some people get from gambling could—for all I, a non-scientist, k n o w — g i v e them a physical dependence on gambling and force them to experience withdrawal symptoms if separated from gambling. Even in the absence of a full scientific understanding o f the underlying causal mechanism, however, I am prepared to concede a point to the opponents of gambling and grant that gambling may be addictive in this sense: that some gamblers (perhaps in part for physiological reasons) systematically act contrary to their own best rational judgments of what their lives ought to he, deeply regret such actions, and yet characteristically return to these actions in spite o f the regret. I f one prefers moral language over therapeutic language, one might not call such gamblers addicts but rather say that they exemplify the vice that Aristotle called akrasia—weakness o f will. O f course, if one thinks o f gamblers as addicts, one will be inclined to regard their acts of gambling—not as responsible moral failings—but as symptoms of illness. If one simply thinks of them as weak-willed, however, one may be inclined to subject them to moral condemnation when they gamble. When our concern is to assess the morality o f offering inducements and opportunities to gamble, however, the difference between addiction and moral weakness may not be so crucial. For one is surely open to some moral criticism for putting temptation and opportunity in the way o f either the mentally sick or the morally weak. But what is the scope o f this addiction or weakness? Is it more like susceptibility to cocaine and nicotine or more like susceptibility to alcohol? According to some apparently reputable studies, cocaine and nicotine are addictive to all normal humans; alcohol, however, is addictive only to that minority o f humans who have an unusual genetic susceptibility to such

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addiction. Thus: If the state intervenes to prohibit cocaine or nicotine consumption, it is limiting the freedom o f all for the good o f all. I f it intervenes to prevent alcohol, however, it is limiting the freedom o f all for the good o f a few—a much more difficult policy to justify in a free society. A s Mill argued long ago in On Liberty, a free society will target those who abuse a freedom and not shut down for all an entire domain o f freedom simply to deal with the minority who cannot be trusted with it. For example: I f a free society is concerned with the problem o f drunken driving, it imposes aggravated penalties for drunken driving; it does not ban alcohol. 4

M y own hunch is that gambling is more analogous to alcohol use than to cocaine or nicotine use—namely, that those gamblers who are in any meaningful sense addicted or compulsive or extremely weak with respect to its temptations represent a minority of all gamblers. Thus state policies o f prevention here will be more difficult to justify. W e attempt to deal with alcohol abuse through regulation—on advertising, on serving to minors and to those who are clearly intoxicated—and we could perhaps deal with the problems o f gambling abuse in a similar way. W e might, for example, place limits on betting, on the use of credit cards for betting, on the number o f hours allowed at the casino, and (at least for Indian tribes not burdened by constitutional restraints) on the residency of those who are allowed to gamble at the casino—a practice followed by some European casinos. O f course, i f casinos are unwilling to cooperate in weeding out the compulsive gamblers—as many critics claim that they are—this is some evidence that they indeed depend upon them and are in the business o f exploitation rather than merely recreation. I f regulation will not work to solve the problems posed by compulsive gamblers, then the moral case against casinos becomes more compelling. An important fact about freedom—a fact sometimes forgotten by M i l l — i s that not all freedoms are o f equal value or worth. On any plausible hierarchical scale o f freedom, the freedom to gamble is surely not to be regarded as one of our most important freedoms. Thus, while it is clearly improper to restrict a really important freedom (such as political speech or religious worship) for

The empirical support for this claim is summarized by Robert E. Goodin in his book No Smoking, University of Chicago Press, Chicago, 1989. My own thinking about addiction has been greatly influenced by this book. 4

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the good o f a few, it is not so obviously improper to do this when the freedom itself is fairly trivial. S o why not advocate, on paternalistic moral grounds, the elimination o f gambling in order to protect those who will otherwise have their lives and the lives o f their families destroyed by it? O f course, the freedom to consume alcohol is also fairly trivial; and so it would seem that the above partem o f thought might justify the prohibition o f alcohol in order to protect those alcoholics who will otherwise have their lives destroyed by alcohol. But this is clearly absurd, many would argue, since one thing we all now supposedly know for sure is that Prohibition was wrong. But do w e really know this? Prohibition failed, o f course, but this does not mean that it was wrong in principle. Its failure may have resulted from the fact that it was an unpopular attempt on the part o f the state to interfere with a deeply embedded traditional American practice—an activity that people had become accustomed to enjoying. Casino gambling does not—in most states—have the force of such history behind it, however, and thus the failure of Prohibition with respect to alcohol is probably largely irrelevant to the debate over casino gambling. There are powerful reasons that counsel restraint in attempts to weed out old vices, but such reasons do not apply with respect to new vices. But what about nicotine? Nicotine is highly addictive to all users and its use often leads to horrible and expensive death. A n d yet w e tolerate the use o f nicotine, in part because of the economic pressure brought to bear by those states that grow tobacco. Thus should w e not, as a matter o f fairness, cut Indian tribes the same break that w e currently cut the tobacco farmers o f North Carolina--farmers whose product addicts the youth o f America and sentences many of them to death by cancer? This is a difficult claim to assess, but at least two points can be raised to challenge the analogy between tobacco and gambling. One -noted above with respect to alcohol—is that it is much harder to justify overthrowing an established practice than it is to prevent the development o f a new practice. T h e second is concerned with economic reliance. The farmers in tobacco growing states have relied on the income from tobacco for many generations and have built a whole way of life around the practice—a claim that Indian tribes cannot make with respect to casinos. A n d I would not, by the way, look with too much envy on those tobacco farmers o f the American south. The social and governmental vice tightens on them a little more each year, and I think that even they see that their days are numbered. The process o f

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closure is slow—in part to g i v e them time to make economic adjustments but I would not be at all surprised to see a total ban on tobacco sales in America some years down the road. In summary; It is hard to make a case that the occasional recreational gambler exhibits a vice or that one who offers the opportunity to gamble to such persons exploits a vice and therefore acts immorally. The real moral problems arise with respect to those gamblers who gamble as an exercise in self-destruction. Perhaps not all such gamblers are to be morally blamed for their behavior some of them may be sick—but surely those who offer them both temptations and opportunities for such behavior are, at the very least, involved (like those who provide drugs, alcohol or tobacco) in a situation o f great moral complexity. They cannot say—like someone who simply runs an amusement park—that their activities involve nothing but innocent and harmless recreation. 7. S O M E C O N C L U D I N G

REMARKS

What is my tentative answer to the question " I s gambling immoral?" M y tentative answer--something o f a letdown, I fear—is: " I t all depends." The final answer depends on a variety o f factual claims, and some of these are highly contested. Those who favor casinos can amass empirical research to support their claims, and those who oppose casinos can do the same thing. A s w e learned with respect to tobacco industry funded research on the dangers of nicotine, w e need research that is truly disinterested—research that is not driven by economic interest and ideology. I hope w e can get such research and do not instead merely get confirmation o f W . H. Auden's counsel "Thou shall not sit with statisticians nor commit a social science." What would w e want to learn from such research that would have a bearing on the morality o f gambling? Here are a few questions that need answering: 1. What percentage of gamblers are compulsive in the sense that they gamble to selfdestructive excess? Casinos probably like to underestimate the number o f such gamblers, and moralistic critics o f gambling probably like to overestimate the numbers. It would be nice to know the actual facts. 2. Is the number of compulsive gamblers generally fixed or does their number expand as opportunities to gamble expand? If casinos create more compulsive gamblers, this

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3. If the number of compulsive gamblers is sufficiently large to constitute a genuine social problem, are there reasonable steps that casinos could and would take to reduce those numbers? Many critics of casinos claim that they are highly dependent on compulsive gamblers and actually do things to encourage and further tempt them. If this is so, then casinos may be crossing the line that separates recreation from exploitation. 4. Do those who develop casinos suffer from a level of economic hardship sufficient to justify their development in spite of the moral problems associated with them? Activities that may be judged immoral viewed in isolation may sometimes be judged morally acceptable when all relevant considerations have been surveyed. Killing another human being, viewed as an isolated act, must be regarded as immoral. But under certain circumstances—legitimate self-defense, for example—what is normally immoral becomes morally justified. Could a comparable argument be made for gambling—that, all things considered, it is justified in spite of its obvious moral downsides? I am doubtful that such an argument can be m a d e for state sponsored gambling such as lotteries. Lotteries are not a state's only possible s o u r c e o f i n c o m e ; indeed, their attractiveness often lies in their use as p o l i t i c a l l y e x p e d i e n t alternatives to taxation. necessity.

States are hardly driven to lotteries b y

T h u s : U n l e s s it can be clearly demonstrated that lottery play is

almost totally l o w stake and tends to attract almost no c o m p u l s i v e gamblers, I d o not see h o w a m o r a l l y decent state can justify its use o f lotteries. T h e situation m a y b e quite different for Indian tribes, h o w e v e r .

With

respect to them, a case can perhaps be made that their d e v e l o p m e n t o f casinos is, all things considered, justified. T h e r e is a possible l e g a l argument based o n tribal s o v e r e i g n t y — o n e that I a m not c o m p e t e n t to d i s c u s s — a n d a possible moral argument. T h e moral argument w o u l d be based on the c l a i m s that ( 1 ) casino g a m b l i n g is the only w a y out o f the extreme p o v e r t y in w h i c h m a n y tribes find t h e m s e l v e s and ( 2 ) that this p o v e r t y results from their historical exploitation at the hands o f non-Indian A m e r i c a — t h e v e r y culture that seeks to curtail their casinos w h i l e maintaining its o w n lotteries. Such c l a i m s are empirically and historically c o m p l e x — a n d m a y v a r y remarkably in plausibility from tribe to t r i b e — a n d I w o u l d not presume to j u d g e their accuracy. In any instance w h e r e they are accurate, h o w e v e r , then perhaps a case has been made for the moral legitimacy o f casino g a m b l i n g — a case that

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maintains that the morally relevant downsides o f casinos (such as a failure to screen out compulsives) are outweighed by such morally relevant upsides as (at long last) economic viability for some historically oppressed people. Sometimes morality involves choosing the lesser o f two evils, and the evils associated with casino gambling are arguably not nearly as great as the evils involved in extreme poverty. O f course, economic necessity cannot justify just anything. I f a particular tribe could avoid abject poverty for its members only by selling heroin or opening brothels or robbing banks, then it would no doubt be morally required to remain in poverty. For all the badness o f casino gambling, however, it does not seem—given the arguments I have developed above -that had. and thus it does seem to represent an issue where the moral argument of lesser evils might well apply. Let me close with one radical (and no doubt unworkable) thought: If the larger society decides it is unwilling to bear the impact o f gambling on nonIndian citizens and communities and thus seeks to stop or curtail tribal casinos, perhaps the larger society should be viewed as under an obligation to pay money to the tribes to compensate them for the costs o f their lost opportunity. Consider an analogy with third world countries and environmental destruction. Having for centuries raped the natural world for their own benefit, it seems terribly unfair i f developed nations now go to third world countries and tell them that they must not (for example) destroy their rain forests and thereby increase global warming. The only fair way to treat these nations, it seems to me, is to transfer some o f the wealth that developed nations got from raping the environment (a kind o f unjust enrichment) to the developing nations as compensation for lost opportunity. I f gambling is seen as some combination of moral and aesthetic pollution, it is perhaps understandable that the larger society would want to prevent tribes from generating this pollution. If it was indeed the larger society that put them in the position o f having no realistic choice but to generate this particular pollution, however, some substantial compensation should perhaps be viewed as owed to them. Obligatory compensation would be fair and would also, I suspect, deter the larger society from attempting too hastily to eliminate tribal casinos in the first place. Stinginess is a powerful motive, and the desire to interfere with perceived vice is much more attractive when such interference is cost-free than when it carries a high price tag.

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A moral obligation to compensate tribes for lost opportunity is one thing; but a legal requirement o f such compensation is, o f course, quite a different thing. Such a legal requirement would, I suspect, have to be generated from some model o f international law and the relations between sovereign nations. Since I know almost nothing about international law, however, I will leave that line o f inquiry to those who—to borrow a contrast from Plato—possess knowledge and not mere opinion.

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SHOULD TENURE SURVIVE? 1. INTRODUCTION

In early 1 9 % , the A r i z o n a Board o f R e g e n t s began seriously to consider the abolition o f tenure at A r i z o n a ' s three state universities. T h e Regents have for the m o m e n t settled on a system o f extensive post-tenure r e v i e w — a system that is certain to be c u m b e r s o m e and m a y p r o v e o p p r e s s i v e — b u t the total abolition o f tenure s o m e w h e r e d o w n the road remains, I suspect, a genuine possibility. T h i s c h a l l e n g e to tenure prompted m a n y o f us in the A r i z o n a system to think seriously about tenure—its nature and j u s t i f i c a t i o n — f o r the first t i m e . I w i l l share with y o u here m y o w n reflections on the matter in the full realization that they are s o m e w h a t " o f f the c u f f " in that they rest upon no solid research and lie far outside the areas in which I might legitimately claim s o m e scholarly or philosophical expertise. T h e y w i l l certainly not b e the last w o r d o n the topic, but I hope that they might at least constitute a useful first w o r d and p r o v i d e a framework and basis for further discussion. I w i l l use m y o w n university ( A r i z o n a State U n i v e r s i t y — A S U ) as an e x a m p l e , since it is the o n l y o n e with w h i c h I am familiar. I d o this o n the assumption that our situation is representative—at least for public universities.

2. TENURE AT ARIZONA STATE UNIVERSITY Is academic tenure justified in the m o d e m w o r l d or should it perhaps b e radically modified or e v e n abolished entirely at A r i z o n a ' s three universities? It is unclear i f our R e g e n t s e v e r contemplated eliminating tenure for those persons to w h o m it has already been granted or s i m p l y for all future cases. I w i l l here assume the latter s o that I can focus purely on the justification for tenure itself and not o n the c o m p l e x issues o f contract and reliance that w o u l d arise i f the R e g e n t s attempted to change a n y important part o f p r e v i o u s l y negotiated e m p l o y m e n t agreements. D u e to space limitations, I shall also g e n e r a l l y ignore the reasons o f political insulation that m a y b e used for p r o v i d i n g j o b security to all public e m p l o y e e s — a l t h o u g h the reasons that

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apply t o s o m e o f these (e.g., federal j u d g e s w i t h life tenure) m i g h t have interesting a n a l o g i e s w i t h the reasons for a c a d e m i c tenure.

1

Threats t o academic tenure tend, o f course, t o terrify university professors; for these threats s e e m to strike at the heart o f their o w n personal w e l l b e i n g . T h u s their initial response is to circle the w a g o n s and t o insist that tenure must b e defended as a sacred right. In c l a i m i n g such a right, they often cloak t h e m s e l v e s in the mantle o f virtue and paint their o p p o n e n t s as k n a v e s and f o o l s , a s the kind o f N e a n d e r t h a l s o n e w o u l d e x p e c t to e m e r g e in a t i m e o f right w i n g p o p u l i s m .

T h e i r o p p o n e n t s then tend t o counter back that the

s u p p o s e d arguments o f p r i n c i p l e g i v e n b y faculty m e m b e r s are n o t h i n g but rhetorical masks for what w o u l d o t h e r w i s e b e seen as naked self-interest. A n d so the w a r o f n e r v e s and p o w e r g o e s o n . M y o w n v i e w is that the basis o f discussion o n the s u r v i v a l o f tenure should be an a c k n o w l e d g m e n t that this is an issue o n w h i c h

reasonable

p e o p l e m i g h t w e l l disagree. In the remarks that f o l l o w ,I shall attempt t o act i n the spirit o f this a c k n o w l e d g m e n t .

Although

I will conclude with a

q u a l i f i e d support for retaining tenure, I w i l l a l o n g the w a y seek t o g i v e all a r g u m e n t s , p r o and c o n , a fair hearing. A s a preliminary matter, it is necessary to c o n s i d e r the issue o f burden o f proof. W h o bears this burden

those w h o o p p o s e tenure o r those w h o favor

it? L o o k i n g at this question from the perspective o f political p h i l o s o p h y , it is surely the c a s e that the burden o f p r o o f must be born b y those w h o favor tenure at state universities, and this is because o f reasons o f an egalitarian nature. A s o c i e t y c o m m i t t e d to equal treatment w i t h respect to state p o w e r

The analogy with life tenure for federal judges was suggested to me in correspondence by attorney Jeremy G. Epstein afterI had written him with respect to the brief essay on tenure he had published inTheNational Law Journal ("Academic Tenure Isn't Just a Matter of Money," December 8, 1997, p. A24). He noted in his reply letter to me that the American judiciary provides a rare opportunity to contrast the performance of the tenured with the untenured (state judges), and claimed that almost all lawyers would prefer to appear in federal courts—-particularly on such sensitive issues as habeas corpus petitions in capital cases—where they expect to receive a fairer hearing than they are likely to gel in state courts. He wrote in his letter: "One of the reasons for this discrepancy is that state judges, who must constantly seek reelection, often lack the courage to make difficult decisions. I have often thought that this was a very powerful argument in support of life tenure in any field where intellectual integrity is important." 1

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must view with suspicion any action by the state that departs from standards of equal treatment and provides special benefits or privileges to only a subset of the population. It is not that such unequal treatment is never justified, for sometimes it probably is—e.g., providing special educational benefits for war veterans. The point is simply that the unequal treatment must be justified—not simply assumed to be legitimate because it has been in place for a long time. Tenure provides a great benefit and one that is increasingly rare in our society— lifetime job security—and thus it clearly represents a departure from equal treatment that demands justification. Tenure is not just an employment benefit, however. It also has great symbolic value as an endorsement of one's work by accomplished scholars and as a ticket for admission into their guild. Tenure is thus currently an honor as well as an employment benefit, but this connection is contingent and not necessary. I f w e came to doubt the value o f tenure as an employment benefit, w e surely could develop ways to confer the honor by other means—e.g., something analogous to election to The Royal Society, or the presentation of a medal and a certificate, or a one time cash award. Thus the retention o f tenure as a lifetime employment benefit requires a separate justification. What will count as a good justification? One that can be ruled out initially is that tenure is justified because it is deserved as a reward for the extra merit or worth that university professors have as human beings. This simply will not wash. A liberal democratic society should not be in the business o f awarding prizes for virtue, and there is no reason to think that university professors as a group would have any greater claim to such prizes if the society were in that business. Public universities do not exist for the purpose o f conferring benefits on those persons fortunate enough to be university professors. If such benefits are conferred it will be because o f instrumental reasons—i.e., reasons that lead us to believe that the university will serve its public mission o f excellence in teaching and research better if it confers tenure and other benefits than if it does not. (I am here assuming that excellence in teaching and research are public goods o f value to all citizens.) Many o f us are in the academy in part because it provides us with shelter from some o f the ugly realities o f the world outside the ivory tower. Society should foot the bill for this shelter, however, not for our sakes but only if it gets something important in return.

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How might tenure assist the university in better serving its public purpose and thereby earn an instrumental justification? Three reasons—using A S U as an example—might be given: 1. Tenure is a competitive asset. I f tenure is abolished at A S U , talented faculty members will reject offers o f employment from A S U (or resign from A S U ) in order to accept employment at universities that grant tenure. This will produce a "brain drain" and leave A S U with a mediocre faculty.

2. Tenure is an important part of the compensation package for university faculty members. Job security and various other quality o f life factors explain why many persons with the talent that would allow them to pursue successful careers at high salaries in business or the professions choose instead to educate themselves, not for those roles, but for faculty positions. The loss o f tenure would probably over time produce a reduction in the average quality of university faculties—fewer really smart people electing to train themselves for this particular vocation. Also, in the absence o f tenure, persons might be given disincentives for specializing in some important areas o f research (e.g., the poetry o f Emily Dickinson)—areas that have little or no marketability outside the world o f college teaching. 3. Tenure secures academic freedom. In the absence o f such freedom one would not have excellence in teaching and research but rather an enforced conformity, a stifling o f creativity, and the replacement o f instructive inquiry and discussion with the tyranny o f political zealots—rightwing McCarthyites in one generation, politically correct leftists in another. I would now like to consider the strengths and weaknesses o f these three arguments—treating the first two together for purposes o f brevity. 3. T E N U R E A N D T H E M A R K E T It would almost certainly be suicidal for A S U to abolish tenure i f most other universities in America retain it, for this would leave A S U with a faculty consisting mainly o f persons o f accomplishments insufficient to make them attractive to other institutions. There are, o f course, some people who think that academics are fungible and that, since A S U could always find somebody to teach classes, the worry about faculty departure is trivial. The "any warm body will d o " theory is surely not held by rational and educated people, however, and thus an essay directed to such people can safely ignore this position.

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Suppose, however, that a national movement to abolish tenure develops—a development that, given the current political climate, should not be ruled out as improbable. Then A S U may not be placed at such a great competitive disadvantage i f it joins many other comparable schools in abolishing or drastically modifying tenure. O f course, if private institutions retain tenure in an environment where political pressures have forced most public institutions to abandon it, then those private institutions may wind up with most o f the truly gifted faculty members. This could create a two-tier system where students who can afford to attend those elite institutions get taught by the best, and poorer students who must attend public institutions get taught by the leftovers. In reality, some private institutions are also under pressure to abolish or modify tenure. Thus it is worth considering a world in which all or almost all universities—public and private—move toward the abolition o f tenure. Are there any market arguments to make against such a movement? Consider the argument already outlined above: Tenure serves as an important part of the compensation package for university faculty members; and thus, in its absence, we could expect over time a drop in the quality of university faculty members as more talented people start to choose career options with more attractive compensation packages. This argument might be met i f those universities that abolished tenure tried to keep the compensation packages equally attractive by, for example, raising salaries for university professors. This is not likely in the present political climate, however, and thus the elimination of tenure probably would drive down quality over time and provide disincentives for people who might otherwise want to specialize in areas o f research that have no general marketability. In principle, however, enriching the compensation package in other ways might compensate for the loss o f tenure. This shows that market arguments do not necessarily support tenure. Indeed, in my judgment, one o f the best arguments against tenure is to some degree a market argument (mixed with a principle o f justice). It is this: There is currently a large group of unemployed or underemployed younger academics (e.g., recent Ph.D.s) in America. Many o f these people are supremely talented and offer greater promise as teachers and scholars than many mid or late career academics—academics whose tenure allows them to clog the system and take up jobs that could be filled better and more economically by entry level persons. This is a market argument (since it

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e n v i s i o n s cost s a v i n g s ) but is also an argument o f justice (since it is arguably unjust that talented p e o p l e are d e n i e d j o b s b e c a u s e other p e o p l e o f o n l y modest talent and a c c o m p l i s h m e n t e n j o y life t e n u r e — a p r o b l e m c o m p o u n d e d b y the fact that m a n y a c a d e m i c s w i t h tenure n o w r e m a i n at their p o s t s past the a g e o f 6 5 ) . W h e n we c o n s i d e r the tenure status o f those o f m o d e s t a c c o m p l i s h m e n t , w e c o m e — i n m y j u d g m e n t — t o o n e o f the best a r g u m e n t s that o p p o n e n t s o f tenure can m a k e .

I say " m o d e s t a c c o m p l i s h m e n t " to distinguish the c a s e s I

h a v e in mind from what I hope w i l l b e p e r c e i v e d as the easy cases. T h o s e o f us in the a c a d e m y can all a g r e e , surely, that tenure has s o m e t i m e s ( t h o u g h p r o b a b l y not a s frequently a s m a n y critics o f universities w o u l d h a v e us b e l i e v e ) been used to shield a c a d e m i c o f their failures.I

riffraff

f r o m the p r o p e r c o n s e q u e n c e s

think here o f persons w h o s e m a j o r qualities are such things

as ignorance and stupidity, t e a c h i n g i n c o m p e t e n c e , drunkenness and sexual harassment. Surely we can all a g r e e that such persons, after b e i n g g i v e n fair w a r n i n g and a reasonable o p p o r t u n i t y to turn t h e m s e l v e s around, s h o u l d s i m p l y h a v e their tenure r e v o k e d and b e fired. T h e s e are the e a s y cases. T h e harder cases are those w h e r e the faculty m e m b e r s are not

gross

i n c o m p e t e n t s but are rather not m u c h m o r e than m e r e l y c o m p e t e n t , and c e r t a i n l y not as g o o d as m a n y u n e m p l o y e d a c a d e m i c s w h o c o u l d be hired ( o f t e n at a cheaper rate) to fill the positions they currently o c c u p y .

The

u n i v e r s i t y ' s main m i s s i o n s are research and teaching, and m y o w n v i e w is that supreme gifts in o n e o f these areas m a y to s o m e d e g r e e c o m p e n s a t e for s h o r t c o m i n g s in the o t h e r C o n s i d e r , h o w e v e r , j o u r n e y m a n a c a d e m i c s o f the f o l l o w i n g sort: persons w h o meet their classes, d o a c o m p e t e n t i f u n e x c i t i n g j o b in their teaching, perform a m i n i m u m amount o f s e r v i c e , and yet h a v e not published

anything

for s e v e r a l y e a r s and

show

no

promise o f

future

p u b l i c a t i o n . T h e university says that research and teaching are both part o f the j o b d e s c r i p t i o n , and yet it n e v e r ( t o m y k n o w l e d g e ) r e v o k e s the tenure and fires persons w h o manifest serious s h o r t c o m i n g s o f the kindI

have

outlined. External critics o f the university p r o b a b l y o v e r e s t i m a t e the number o f such p e r s o n s o n faculties, but I am inclined to think that the number o f such p e o p l e is not trivial. Is this just? Should such persons b e guaranteed the e n o r m o u s benefit o f l i f e t i m e j o b security? M y initial inclination is to a n s w e r no to this question and to favor, in principle if not in practice, proposals that tenure b e granted for l i m i t e d t e r m s

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(7 years, say ) and that such tenure cases be reviewed in such a way that this question becomes, not decisive certainly, but at least relevant: Could the university's mission o f research, teaching and service be accomplished to a significantly greater degree if it hired a new faculty member instead o f retaining this individual on the present terms? If the answer to this question is yes, then the university could negotiate new terms (a salary reduction, perhaps, or more teaching responsibilities for the next 7 years o f tenure) or even—in some cases—revoke tenure entirely and dismiss the faculty member in question. What reason in principle could be given for opposing this? 2

A t this point it might well be argued that the important issues here are not merely ones o f principle but are rather ones o f practice—particularly the practical worry that a proposal o f this nature will almost certainly be abused in ways that will have a chilling effect on other values that are central to university life, values such as academic freedom. This is a very serious worry that should not be dismissed casually. However, it cannot be addressed in a responsible way until w e first develop an account o f the nature o f these other values themselves. Such a project is far beyond the scope o f a brief essay (and o f my own expertise), so I shall have to content myself with simply a few sketchy remarks. Let me begin with the value o f academic freedom. 4. A C A D E M I C F R E E D O M A N D T E N U R E I recently heard it suggested that the university needs tenure because academic freedom is not protected by the First Amendment o f the United States Constitution. This claim involves two confusions. First o f all, it should be noted that the legitimate claims o f academic freedom must surely be protected for all faculty members, not merely for those w h o have tenure. This point is particularly important to stress as universities hire more and more temporary faculty members who are neither tenured nor on tenure track lines. Thus, if the university truly values academic freedom, it had better have some mechanism other than tenure to protect it.

A colleague described such a practice in this way: Everyone gets a sabbatical leave, but only some people get to return from it. 2

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S e c o n d , I a m ( g i v e n m y limited expertise o n such legal matters) inclined to think that the relation b e t w e e n academic f r e e d o m and the First A m e n d ment is q u i t e c o m p l e x . Let us start with an e a s y case.

It is p r o b a b l y safe to say that the most

noncontroversial and core aspect o f a c a d e m i c f r e e d o m is protected (at least in state institutions) by the First A m e n d m e n t :

the f r e e d o m to express, in

class and in research, o n e ' s opinions on the subject matter o f o n e ' s discipline regardless o f the v i e w p o i n t that o n e

adopts.

A c l a s s r o o m is not a public

forum, but the S u p r e m e Court has held that v i e w p o i n t neutrality is required o f the state e v e n in the c l a s s r o o m . D o c s this then mean that the university d o e s not need m e c h a n i s m s o f its o w n t o protect this core c o n c e p t o f a c a d e m i c f r e e d o m , s i n c e it w i l l

be

protected a n y w a y by the First A m e n d m e n t ? T h i s w o u l d b e a hasty assumption. If w e value such freedom, w e w i l l surely want faculty m e m b e r s t o feel uninhibited in expressing controversial v i e w s .

Persons

w i l l surely feel less

inhibited in expressing their protected v i e w s in an e n v i r o n m e n t that has its o w n internal d e v i c e s for protecting them than i f they feel their o n l y recourse is to hire a l a w y e r and sue ( a n d o n l y maybe w i n ) i f t h e y are e v e r

fired.

T e n u r e i s one such internal d e v i c e but should not, for the reasons already noted, b e the o n l y o n e . W h e r e this w h o l e matter o f tenure and a c a d e m i c

freedom

becomes

c o m p l e x is in areas w h e r e the label " a c a d e m i c f r e e d o m " is used t o a r g u e for p r o t e c t i n g conduct that is not protected by the First A m e n d m e n t .

But here

we face the problem that s o m e — p e r h a p s m u c h — o f this c o n d u c t should not be protected under any heading. I once, for e x a m p l e , heard a c o l l e a g u e argue heatedly that his academic f r e e d o m was violated because h e was criticized by his c h a i r (and threatened with a l o w p e r f o r m a n c e e v a l u a t i o n ) because he refused t o teach his class in reasonable c o n f o r m i t y t o the o f f i c i a l c o u r s e description for it and refused to report his grades in a timely and professional manner.

T h e f r e e d o m s h e c l a i m e d are c l e a r l y not protected b y the First

A m e n d m e n t , but I w o u l d argue that neither w o u l d they b e protected under any reasonable t h e o r y o f a c a d e m i c freedom. C o n s i d e r this m o r e c o m p l e x and controversial case: A state law s c h o o l dean orders that teachers o f first year c r i m i n a l law will not take rape as a s a m p l e c r i m e t o illustrate basic p r i n c i p l e s but w i l l take s o m e other c r i m e instead—e.g., homicide.

T h e dean issues this o r d e r because o f a b e l i e f in

s o m e social s c i e n c e studies that claim that such discussion tends to upset

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female students and interferes with their ability to learn. It would be unconstitutional for the dean to issue the order "the crime of rape may be discussed but only from a feminist perspective" because that would violate the principle o f viewpoint neutrality, but it may not be unconstitutional for the dean to ban discussion of the topic entirely in the class; the Court might well split on this. (Viewpoint neutrality is constitutionally required here, but subject matter content neutrality may not be.) Is it a matter o f academic freedom that a teacher in criminal law be allowed to discuss the crime o f rape regardless o f the dean's order? I have a hard time making up my mind on this case, but I am fairly confident o f one thing: If this is a freedom that should be defended under the heading o f academic freedom, then w e will probably need something other than either tenure or the First Amendment to secure it. A n d what o f the professor who refuses to take baths and stinks to high heaven? Or who lines his or her office (where students must visit for consultations) with erotic pictures? Or who uses some class time to impose upon a captive audience views on topics having no bearing on the subject matter o f the course? Are these issues o f academic freedom? Does academic freedom, initially defended as a means to the free market o f ideas and the discovery of truth, now protect any self-indulgent eccentricity that secure and privileged faculty members feel like displaying? A r e these people in principle worth protecting, worth protecting purely for instrumental reasons (the fear o f chilling others whose use o f freedom is in principle worth protecting), or not worth protecting at all? I do not think that these questions are easy. M y bottom line is this: the relation between academic freedom (which, outside the core, means different things to different people), tenure, and the First Amendment is too complex to be captured with any simple formula—e.g., the formula "academic freedom is not protected by the First Amendment and so we need tenure to protect it." This slogan confuses the relation between academic freedom and the First Amendment and fails to acknowledge that even tenure is not always the best protective device for academic freedom—as it surely is not, for example, with respect to temporary or probationary faculty members.

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Character, Liberty, and Law 5. G R O U N D S F O R P R O C E E D I N G W I T H

CAUTION

Let me close with reasons for thinking that universities should not m o v e too quickly to adopt radical modifications in tenure—even the one with which I earlier expressed sympathy. The caution I counsel is based mainly on two facts: ( 1 ) A s anyone who spends any time around foreign universities can testify, American universities remain the envy of the world, generally producing—for all their shortcomings—high excellence in teaching and research. Everybody wants to come here to study. (2) W e do not fully understand why American universities have attained such excellence. It no doubt results from complex systemic interconnections among a variety o f things, and thus w e have no way o f knowing for sure that w e can surgically remove one part (tenure, say) and have the remaining parts continue to function as a healthy organism. W e live, alas, in times when people in power are so in love with the idea o f efficiency that they will often compromise other important values for efficiency. Thus w e hear influential political and economic voices in my state suggest that the evaluation of education be based on "outcome" and that the university should be "run like a business." They suggest that w e have no objective basis for evaluating what w e do (a suggestion echoed for quite different reasons by some o f the nutty voices o f post-modernism within the academy itself) and they flirt with the idea that w e need to be "managed" in the way a corporation is managed—in particular, managed without tenure as an obstacle to efficiency. There are, in my view, at least four things troubling with this way o f thinking. First, it often confuses efficiency with the illusion o f efficiency—imposing artificial models o f outcome and productivity that do nothing more than achieve simplicity at the price o f distortion. Second, this way o f thinking has a tendency to harness the internal structure o f the university to external forces—particularly to the worlds o f business and the professions and what these forces seek in future employees. This has a tendency to narrow the focus of education to what can be quantified and measured. It thereby encourages a model o f education that I do not think is even appropriate for business and the professions but is manifestly absurd for traditional humanities disciplines. For these are disciplines whose "payoffs" weave through the tapestry o f one's sensibilities in ways that are often intangible—ways that may never fully rise to consciousness or

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that may do so only after a very long time. (Just a few weeks ago, for example, I found myself drawing on an insight I had acquired when, as an undergraduate, I took a class in Dante's Divine Comedy taught by Charles Singleton—a class in which I received a terrible grade and which I had for years repressed from my consciousness.) Third, attempts to streamline the system through intensified performance review leading to the frequent revocation o f tenure may further corrupt the characters o f people within the academy. Such a process may bring out our worst tendencies to evaluate others so that we can feel superior to them and treat them ruthlessly, act out fantasies o f envy and ressentiment with respect to them, and even serve up their bodies (rather than our o w n ) as a sacrifice to appease those political forces that demand that we " d o something." Instead o f merely teaching about the Hobbesian state o f nature as a war o f all against alt, w e may find ourselves living it. It could, o f course, be argued that another kind o f corruption has already infected the system and that it is this corruption that has in part provoked the public demand for increased review and accountability: a trade union mentality that has encouraged university faculties to shelter friends and colleagues from adverse consequences that might otherwise have been properly attached to their failures and shortcomings. Based on my many years o f experience as a university faculty member, however, I have regretfully come to the conclusion that intensified demands for standards, quality and accountability—while o f course vitally important and generally sincere and honorably motivated—are also sometimes simply masks for prejudice and outright mean-spiritedness. Nietzsche said that w e should mistrust persons in whom the urge to punish is strong. So too, I would argue, for those eager to subject their colleagues to increased scrutiny as a challenge to their tenure. What impact, for example, might such scrutiny have on the gains made by minority faculty members in recent years? I do not know the answer to this question, but I cannot help fearing that those faculty members who in the past fought hard to maintain universities as bastions o f white male privilege will see the

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current challenge to tenure as an invitation to take up the struggle again.

3

When called upon to sit in judgment on our colleagues, w e must be on guard against ourselves lest w e someday find ourselves saying, with Pogo, that " w e have met the enemy and they are us." N o doubt, as I approach old age, I am beginning to exhibit symptoms o f sentimental nostalgia, but I cannot help thinking that the quality o f life in America—its decency, its civility, its sense that we all merit respect and compassion as members o f a common enterprise—ratchets down a bit with each passing year.I

think that a part o f the explanation for this is the

tendency o f businesses in recent years to abandon traditional notions o f loyalty to employees and simply throw them out upon the scrap heap of life whenever it is believed that the goal of short term profits will be served thereby. These human and social costs should be kept in mind whenever anyone is tempted by the slogan "let's run the university like a business." Tenure gives a faculty member a stake in the long range future o f a particular institution and should help to build loyalty to that institution. Many faculty members are already, in my judgment, far too inclined to think in terms o f "what's in it for m e " or "how can I improve my marketability so that I might have an opportunity to go elsewhere?", and I fear that the loss o f tenure might allow these narcissistic tendencies to flourish to an even more alarming degree. In an academic world without tenure,I fear a weakening of the already fragile commitments to such things as program development, the mentoring

of students and junior colleagues, and intelligent

faculty

governance—in short, a weakening of responsible academic citizenship. And what about commitments to quality in undergraduate teaching? In a world where marketability is still mainly a function o f scholarly publication, will not a world without tenure produce even less o f a commitment to such teaching than is currently present?

4

I fear that it will.

See the special report on tenure in the October 16, 1997, issue of Black Issues in Higher Education. Minority faculty members often find it worth noting that the campaign against tenure started shortly after more than token numbers o f minority faculty members began to receive tenure. Racial paranoia? The fallacy of post hoc ergo propter hoc? I am not so sure. 3

The Arizona Board of Regents tends to mix up three different issues: suspicions about tenure, perceived lack o f quality in undergraduate education, and a belief that faculty members do not teach as many classes and students as they should. Getting rid of tenure 4

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W e are, o f course, imperfect people in an imperfect world; and our tendencies to corruption can be engaged by tenure itself as well as by attempts to dismantle it. I have already mentioned the dangers o f the trade union mentality. It could be argued, however, that an even greater corruption is latent in tenure: the perpetuation of sameness. Tenure is a kind o f club; and it is not surprising, human nature being what it is, that club members tend to select as future members those persons who are highly clubbable—i.e., those now most like themselves or willing to become so. In purely social clubs, this tendency to want to associate with others who remind us of looking into a mirror is fairly harmless. In the academic world, however, the value o f clubbability tends to exclude, not solely women and minorities, but those who practice one's academic discipline in ways different from one's own. Thus, in philosophy, departments dominated by tenured analysts tend to hire and promote to tenure other analysts, departments dominated by tenured continentalists tend to hire and promote to tenure other continentalists, etc. A t its worst, this kind of system becomes one o f old farts simply perpetuating old fartdom. It is natural, and not at all surprising, that faculty members would like to be surrounded mainly by those with whom they are comfortable and who practice their discipline in ways similar enough to their own that enriching intellectual interaction with them is possible. When one considers what is best for students, however—particularly undergraduate students—it is not at all clear that faculty comfort and personal growth should be given such high priority. For this may produce an environment that contains less intellectual diversity than is educationally desirable. In short: tenure is a highly conservative system and tends to have the flaws—as well as the virtues—of any conservative system. It is not at all clear, however, that the elimination o f tenure would make the educational world any better in this regard, and it might make it even worse. A tenure system may enforce a high degree o f conformity during the probationary period, but—once granted it allows people the opportunity to break ranks, become mavericks, and ride o f f in new and even unfashionable directions without fearing for their jobs. Many do not take advantage o f this

might help them deal with the quantity problem, but it is hard to see how it will help them deal with the quality problem.

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opportunity, but some do; and I think that students and the discipline itself often benefit from this.I

suspect, however, that the academic world would

contain even fewer mavericks i f all faculty members had to worry perpetually about their continuing marketability. Let me now m o v e to my fourth and final point. It involves recalling the fact—noted above—that w e do not fully understand w h y these complex organisms called universities work when they work and fail when they fail, and I will close with a variation on this theme o f ignorance and mystery. From a political perspective, I earlier suggested that the burden o f proof lies on those who favor tenure.

From an epistemological perspective (a

perspective concerned with the knowledge w e have—or do not have—about how best to produce the public goods that justify state universities) I am inclined to think that the burden o f proof lies on those who oppose tenure. Given their stature within the world, American universities must be doing something right; and so, before we start tinkering with them in haste rather than with great caution, w e should perhaps recall the wise counsel o f Mayor Richard Daley: " I f it ain't broke, don't fix it."

5

This essay was prepared for presentation at the symposium "The Future of Tenure" at the meetings of the American Philosophical Association, Pacific Division, March 1998, The symposium was sponsored by the A P A Committee for the Defense o f the Professional Rights o f Philosophers and by The Society for Philosophy and Public Affairs. An earlier version was presented at a meeting of the Council of Deans of Arizona State University in January, 1996; and the present draft has been greatly improved as a result of discussionI essay that I am in no sense a scholarly expert in these matters—e.g., I have no knowledge of the history o f tenure in America. The purpose o f the essay is solely to set an initial framework and raise some issues for discussion. 5

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JEAN HAMPTON ON IMMORTALITY, SELF-HATRED, AND SELF-FORGIVENESS M y relationship with Jean Hampton was generally that o f adversary.

1

friendly

W e disagreed on a great deal—her Christianity against m y then

militantly secular worldview, her assumptions o f trust and love against m y more cautious and even cynical assumptions, her refusal to endorse the vindictive feelings that seemed (at least in some circumstances) so very right to me. And yet w e agreed on a great deal as w e l l — a tendency to get philosophical inspiration from Kant and the Kantian tradition and the belief that some form o f retribution has an important role to play in the practice o f criminal punishment.

W e were engaged by each other's perspective and

would frequently argue with each other—most extensively in the dialogue w e conducted in our co-authored book Forgiveness and Mercy, published in 1988.

2

M y last face-to-face contact with Jean was typical o f our interactions and one that I shall always cherish since it captured so much o f what I was fond o f about her. I was presenting a paper at a conference in honor o f Joel Feinberg on the occasion o f his retirement, and Jean was my commentator. In responding to her sharp comments, I was sharp in return and made a few flip remarks at her expense that drew some laughter from the audience. When I sat down, she turned to me with her characteristically impish look and simply said: "Think you're pretty funny don't you Murphy?"

Here I

This paper was presented at a special session held in honor of the late Jean Hampton at the Pacific Division meetings of the American Philosophical Association in Berkeley. California, on March 29, 1997. The session was chaired by Jules Coleman, and the other papers were presented by David Gauthier and Frances Kamm. Both during the session and in later discussions and correspondence, several colleagues made valuable criticisms and suggestions for improvement in the paper. I had originally planned to deal with these criticisms and suggestions in the present draft but found, asI attempted to do so, that I was moving further and further away from Jean Hampton's work and simply pursuing independent ideas o f my own—hardly the appropriate thing for a memorial paper. I have thus decided to publish here, with only a very few minor changes, the paper in essentially the same form in whichI presented it in Berkeley. IfI have the opportunity to return to these issues in a future paper. I hope that those who shared their ideas with me will see that their valuable suggestions did not fall upon utterly deaf ears. Forgiveness and Mercy, by Jeffrie G. Murphy (Chapters 1, 3 and 5) and Jean Hampton (Chapters 2 and 4). Cambridge University Press, 1988. 1

2

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will—for the first time ever—have the last word in controversy with Jean, but I cannot take the delight in this that I might have under other circumstances. I miss her and do not welcome a world that lacks her brilliant, creative and witty presence. Philosophy goes on, however, and the highest compliment that one can pay to the professional memory o f a philosopher is to enter into critical engagement with that philosopher's ideas in the hope o f advancing the discussion o f the topic in question. So today I will continue my dialogue with Jean on some aspects o f our book—particularly our disagreements over the idea o f self-forgiveness. Self-forgiveness is an " i n " topic these days—much discussed in both academic and popular psychology, filling the shelves o f the self-help and recovery sections o f chain bookstores, and playing a prominent role in various 12 step programs. It might be useful to see what, i f anything, philosophy can contribute to its understanding. I should make it clear at the outset, however, that I have no final and original account o f my own to offer o f self-forgiveness. I will simply ramble around and free-associate for a bit—drawing heavily on Jean's striking observations—in the hope that, when I am done, our ability to think about self-forgiveness will (with Jean's help) be at least slightly richer than it was when I started. Perhaps I will at least be able to point out some false starts and suggest what will not work. 3

What are the reasons that might legitimately prompt one to forgive a person by whom one has been deeply wronged? In my chapters in the book Forgiveness and Mercy, I stressed reasons o f a self-regarding nature—particularly the fact that forgiveness can legitimately allow one to get on with one's life if one can find a way to bestow it consistent with one's self-respect, as one frequently can i f the wrongdoer manifests sincere

Asan example of the degree to which talk about self-forgiveness has entered popular culture, consider Dave Robicheaux—the recovering alcoholic detective who is the central character in a widely read series of novels by James Lee Burke. In almost every novel, Robicheaux speaks of his own need for self-forgiveness and frequently offers such counsel to others. The following is a representative passage (from the 1990 A Morning for Flamingos): "I think you want forgiveness. From somebody who counts....It'll have to come from somebody who's important to you. God, a priest, somebody whose experience you respect. Finally yourself, Tony. A psychiatrist with any brains would have told you that." 3

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repentance. I g a v e short shrift—one b r i e f paragraph—to the possible effects o f f o r g i v e n e s s on the w r o n g d o e r himself.

I considered the possibility that

forgiveness might b e justified as part o f an attempt to reform the w r o n g d o e r , but then rejected this as arrogant and patronizing.I

wrote:

Suppose you had wronged someone. How would you like it if that person assumed that you could not come to repentance on your own but required the aid of his ministry of forgiveness? Might you not feel patronized—condescended to? Forgiveness can be an act of weakness, but it can also be an act of arrogance. Seeing it in this way, the wrongdoer might well resent the forgiveness. "Who do you think you are to forgive me?" he might respond to such well-meaning meddling (Forgiveness and Mercy, p. 31). Jean sharply disagreed with m e on this point.

Indeed, she c l o s e d her

chapter on forgiveness b y suggesting that the g o o d that forgiveness can bring to the w r o n g d o e r constitutes o n e o f the best reasons justifying f o r g i v e n e s s . She w r o t e : ...[P]erhaps the greatest good forgiveness can bring is the liberation of the wrongdoer from the effects of the victim's moral hatred....[Such forgiveness] may enable wrongdoers to forgive themselves by showing them that there is still enough decency in them to warrant renewed association with them. It may save them from the hell o f selfloathing (Forgiveness and Mercy, pp. 86-87). I d i d not explore this disagreement in the b o o k — s h e had already g i v e n m e t o o much else to lament and w o r r y a b o u t — a n d so I w i l l e x p l o r e it here.

I

w i l l in particular b e concerned with three questions: W h a t is s e l f - f o r g i v e ness?

U n d e r what circumstances is self-forgiveness a g o o d ?

H o w might

f o r g i v e n e s s from another ( o n e ' s v i c t i m o f earlier w r o n g d o i n g ) bring about self-forgiveness? I f o n e literally f o l l o w s — a s I did in the b o o k — B i s h o p B u t l e r ' s famous analysis o f

forgiveness, then the idea o f self-forgiveness

might

seem

incoherent. A c c o r d i n g to Butler, forgiveness essentially i n v o l v e s the o v e r c o m i n g o f resentment, and it seems bizarre to speak o f resenting oneself. I have n o w been persuaded by N o r v i n Richards and others, h o w e v e r , that it is a mistake to define forgiveness so n a r r o w l y .

4

It is m o r e illuminat-

See Norvin Richards, "Forgiveness," Ethics, Volume 99, Number 1. October, 1988, pp. 77-97. 4

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i n g — m o r e loyal to the actual texture o f our moral lives—to think o f forgiveness as overcoming a variety of negative feelings that one might have toward a wrongdoer—resentment, yes, but also such feelings as anger, hatred, loathing, contempt, indifference, disappointment or even sadness. There is no reason to think that even this list is complete. Some o f these feelings, of course, make perfectly good sense to ascribe to oneself.

The concepts of self-hatred or self-loathing, for example, are

perfectly coherent in a way that self-resentment perhaps is not. And thus it is a step in the right direction that Hampton organizes her thinking about selfforgiveness around these concepts. She writes: If the wrongdoer [sees himself as] cloaked in evil, or as infected with moral rot, (this] can engender moral hatred of himself. Such self-loathing is the feeling that he is, entirely or in part, morally hideous, unclean, infected. It can be directed at his character or dispositions or, more dangerously, towards everything that he is, so that he comes to believe that there is nothing good or decent in him....[This] can lead to self-destruction

(Forgiveness and Mercy, p. 86). The particular kind o f self-hatred that interests Hampton here is most forcefully expressed by the other phrase that she uses in the above passage: moral

haired

o f oneself. One can, of course, hate oneself for reasons having

little or nothing to do with morality—e.g., Nancy S n o w ' s example o f the football player who is overcome with self-loathing over dropping a pass that would have, if completed, won the game for his team. This player may need 5

to attain self-forgiveness i f he is ever to get on with his life, but non-moral cases such as this are not the ones that interest Hampton. The self-hatred felt by the player is not moral hatred; and it is moral hatred that is the object of her concern. But what exactly does this phrase "moral hatred" mean? Earlier in the book, Hampton defined moral hatred—in contrast to simple hatred—in this way: An aversion to someone who has identified himself with an immoral cause or practice, prompted by moral indignation and accompanied by the wish to triumph over him and

5

Nancy Snow, "Self-forgiveness," Journal of Value Inquiry, Volume 27, 1993, pp. 75-

80.

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his cause or practice in the name o f some fundamental moral principle or objective, most notably justice (Forgiveness and Mercy, p. 61). T h i s d e f i n i t i o n w i l l not q u i t e d o , o f course, with respect to moral hatred o f s e l f ; for o n c e a g a i n — a s noted a b o v e with respect to r e s e n t m e n t — w e often find

o u r s e l v e s in c o n f u s i o n w h e n w e attempt to transfer l a n g u a g e

from

interpersonal relations to relations to o n e s e l f . C a n we, for e x a m p l e , really feel indignation t o w a r d o u r s e l v e s ? I think that perhaps the best w a y to understand moral hatred o f s e l f is as a kind of shame p l a c e d on t o p o f g u i l t — g u i l t o v e r the w r o n g that o n e has d o n e but. in cases w h e r e being a moral person is a part o f what Freud w o u l d call o n e ' s e g o ideal, s h a m e that o n e has fallen so far b e l o w o n e ' s ideal o f s e l f h o o d that l i f e — a t least life with full self-consciousness

- is n o w less

bearable. T h i s kind o f shame, s o visual in its i m a g e r y , is well-captured in the idea that o n e needs, at the end o f the d a y . to b e able to look at o n e s e l f in the mirror and that, after certain moral failings, o n e s i m p l y w o u l d find it difficult to d o so.

O e d i p u s ' s b l i n d i n g o f h i m s e l f is, o f course, the most

famous

literary e x a m p l e o f this kind o f s e l f - l o a t h i n g . But what is it about moral hatred or self-loathing?

failures that could g e n e r a t e such shameful

H o w d o w e understand moral failures in such a w a y

that o n e c o u l d plausibly loath or hate o n e s e l f for them? We d o not t y p i c a l l y feel this w a y about our aesthetic failures ( m y i n a b i l i t y t o w r i t e literary v a l u e , for e x a m p l e ) nor w o u l d

self-loathing

fiction

of

b e a f e e l i n g that o n e

w o u l d e x p e c t to find in persons w h o s e m o r a l o u t l o o k w a s totally utilitarian in nature.

S e l f - l o a t h i n g s e e m s to require a rich ( a l m o s t

Dostoevskian)

account o f morality that regards the past w i t h d e a d l y seriousness and m a k e s

character

( i n s o m e rich s e n s e ) a central e l e m e n t .

W h a t m i g h t such an

account look like? Jean d i d not attempt to d e v e l o p a full account o f i m m o r a l i t y book

in our

a l t h o u g h she d i d g i v e some h i n t s — b u t she d i d s o at s o m e length in

her later w r i t i n g s — p a r t i c u l a r l y her 1989 essay " T h e Nature o f

Immorality."

I n o w want to e x a m i n e this account in order to determine i f it w i l l p r o v i d e an

Social Philosophy and Policy, Volume 7, Issue 1, Autumn. 1989. pp. 22-44. She expanded the ideas of this essay and applied them to issues in legal philosophy in her essay "Mens Rea" in the same journal. Volume 7, Issue 2. Spring 1990. pp. 1-28. 6

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adequate foundation for a concept o f moral self-hatred or self-loathing that will illuminate self-forgiveness,

7

According to Hampton, the essential feature o f the concept o f immorality is defiance, defiance o f the rules o f morality. She speaks in a similar way in the book where she refers to the immoral person as in rebellion

against

morality (p. 84) and speaks o f the object o f moral hatred as aversion to one who has identified himself with an unjust cause. In the later essays, however, the v i e w is spelled out in much more detail in passages such as these, which I shall quote at some length: The explanation [of immorality] I will develop is naturally linked with the idea that the authority of moral imperatives comes from the idea that they are categorical. I call it the defiance explanation, it is very old, deeply entrenched in the Judeo-Christian tradition, and implicit in the tale o f Adam and Eve, which is supposed to be an explanation of the origin of human evil ("The Nature o f Immorality," p. 37). The point of the tale [is that] human immorality is a function of human disobedience of an authoritative command....In anutshell,theview is that a culpable agent is one who chooses to defy what she knows to be an authoritative moral command in the name o f the satisfaction of one or more of her wishes, whose satisfaction the command forbids ("Mens Rea," pp. 14-15). I want to be precise about what defiance is. It is a certain kind of choice. But it is not the choice to do an action knowing that it is wrong (i.e., knowing that it is prohibited by a moral injunction). This choice is not even sufficient for us to consider a person culpable for an action, since she might have performed it under duress or in a situation of dire necessity. ( A bank teller who hands over her money to a gunman is not culpable for her action because we do not think that the injunction against contributing to a theft is authoritative for her in the circumstances.) Instead the defiance that makes her culpable is her choice to do an action which she knows to be wrong, i.e., prohibited by a moral injunction, and where she knows this injunction claims to be the ruling principle of her choices. The word 'claims' here is important. She doesn't know that this injunction must be authoritative over her; she knows only that it claims to be authoritative. ...It is this claim that she resists, repudiates, fights off, as she chooses to do otherwise than it directs. The injunction is therefore not something that she can be merely indifferent towards, because she understands that she is supposed to be governed by it, so that its rulership must be fought off. One might say that the immoral person is attempting to establish herself as amoral; if her rebellion succeeds, she will show herself to be outside the scope of its imperatives. By the very act o f flouting the moral injunc-

In structuring my own thinking about immorality, I have been greatly assisted by reading again Ronald D. Milo's book Immorality (Princeton University Press, 1984)—still to my knowledge, the best starting point for thinking about this topic. 7

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tion, she understands that she is supposed to be inside its scope and rejects its power over her ("The Nature o f Immorality," pp. 39-40).

Hampton claims that her defiance account o f immorality is inspired by Milton's idea in Paradise Lost of "foul revolt" and by Kant's account of evil in Religion Within the Limits of Reason Alone—where (according to Hampton's controversial interpretation) Kant sees immorality "as arising from 'insubordination' by one who defies the Moral Law and puts the satisfaction o f his own desires ahead o f doing his duty," One o f the great virtues o f this defiance account, she claims, is this: (It explicates] the notion [of immorality] as it functions in our everyday judgments and practices...[and] explains the kinds of reactive attitudes we have towards wrongdoers. Insofar as it presents immoral actions as chosen by a person..., it makes sense to respond negatively to the person who made the choices....We who are (supposedly) on the side of morality find the wrongdoer's rebellious choices offensive. She is not someone to be pitied, but someone to be resented, resisted, fought against, or even despised because o f her allegiance....[The wrongdoer herself might come to feel] shame, a kind o f misery over what one is (a traitor to the right cause) ("The Nature o f Immorality," pp. 41-42). 8

I have quoted Hampton at length both to g i v e the reader a flavor o f the scope and power o f her theory of immorality and to provide, in the interest o f fairness, a counterweight to my own assessment o f that theory—an assessment that is largely negative, at least as applied to the topics of selfhatred and self-forgiveness. How does one argue against a theory of this nature? I think that all one can do is test the theory introspectively—against one's own moral psychology—and, if the two do not match, share such exercises in psychological autobiography with others to see if they too find that the theory produces tension rather than coherence- Hampton herself invites such an approach

An important metaethical issue, which I shall not here have space to pursue, is the legitimacy o f using the capacity to explain our reactive attitudes as a test for theoretical adequacy in moral philosophy. If we take these attitudes as they actually are, then many theoretical accounts—otherwise quite plausible—will surely fail. (Suppose that some of our actual reactive attitudes are a product o f our now irrelevant evolutionary history, for example.) If, on the other hand, we use as our test not all of our reactive attitudes but only those that are first subjected to some kind of theoretical laundering, then we run considerable risks of circularity. 8

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when she says that her theory captures " o u r " reactive attitudes, how " w e " tend to feel. H o w can one, as a critic, respond to such a claim except by confessing "not m e ; this is not how I feel." One puts such a confession forward as a wager that others will share o n e ' s dissent from the offered analysis. The wager is dangerous, o f course, because i f others do not share one's dissent one discovers that one's o w n moral psychology is idiosyncratic o r even pathological. With this caution in mind, I will now place my bet. I suppose that my primary quarrel with Hampton's account is its high level o f formality and generality a product, I suspect, o f its Kantian origins. I can understand regarding some immorality as explained by the abstract concepts o f "authoritative commands" and " T h e Moral L a w . " but I cannot for a moment imagine hating or loathing myself for sins o f such an abstract nature. T h e immoralities for which I (and I suspect most o f us) have felt and still feel some self-loathing are those that come with specific names and specific faces attached to them the faces o f those w h o were victims o f o n e ' s hurtful conduct. Defiance o f rules alone, I suspect, simply w i l l not for most normal people—yield this result. Consider again the story o f Adam and E v e — a story to which Hampton devotes several pages o f close discussion in developing her defiance theory. In my view, one misses a great deal that is important in the story i f one sees it—as Hampton does as essentially a story about the defiance of categorical moral authority. After all, the discussion between Eve and the serpent focuses, not on issues that Kant would recognize as issues o f moral principle, but rather on competing prudential hypotheses—on what Kant would call competing hypothetical imperatives. E v e seems concerned, not with G o d ' s abstract moral authority, but rather with the question o f the reliability o f G o d ' s promise to sustain her being and promote her interests. She fears to cat from the tree, not because she has some primitive grasp that " D o not eat from the tree" is a categorical imperative, but because G o d has said that anyone who does eat from the tree will die. She is not sure, however, that her fear is justified; and thus the serpent is able to seduce her into disobedience, not by inviting her to replace G o d ' s moral authority with her own, but rather by reassuring her about the promised sanction. He says simply " O f course you will not d i e " and Eve, alas, believes him. In my view, what the serpent blinds E v e from seeing is not the majesty o f G o d ' s categorical moral authority but rather the fact that God knows what is in the best interest o f His creatures—a point missed by an overly Kantian reading o f the story. The

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G o d o f the story is to b e o b e y e d for the very practical and prudential reason that Me created human b e i n g s and t h e r e f o r e k n o w s what is required in o r d e r for them to nourish. I think that an o v e r l y Kantian reading also makes us miss an aspect o f the story that is e v e n m o r e important for our present purposes

the

nature o f any

s h a m e and guilt that A d a m and E v e feel after their d i s o b e d i e n c e .

Their

dominant feelings f o l l o w i n g the d i s o b e d i e n c e are, o f course, not moral at all. T h e i r feelings are rather the feelings o f pain and insecurity that c o m e with the realization that they are now irrevocably w o r s e o f f than they w e r e b e f o r e ; life is g o i n g to be hard. T h e y d o also, h o w e v e r , e x p e r i e n c e the moral f e e l i n g s o f shame and perhaps guilt. A n d w h a t is the basis for these f e e l i n g s ?

A t least

w i t h respect t o their s h a m e , this s e e m s to h a v e as its o b j e c t — n o t ance

defi-

but rather s o m e knowledge that they h a v e a c q u i r e d a s a result o f their

defiance:

the k n o w l e d g e that they are naked. I f they also e x p e r i e n c e guilt

( a n d the story does not tell us that they d o ) is this because t h e y h a v e d e f i e d an authoritative rule or rather because t h e y h a v e d e e p l y and betrayed and disappointed them?

and thus hurt—the

obviously

H e a v e n l y Father w h o l o v e s

I suspect it is in l a r g e pan the latter. G o d ' s r e s p o n s e to them strikes

m e as personal as w e l l ; it is l a r g e l y that o f an injured but still l o v i n g father w h o s e l o v i n g c a r e has been unappreciated, not s i m p l y the r e s p o n s e o f a c o s m i c p o l i c e m a n or j u d g e w h o

like O l i v e r W e n d e l l H o l m e s , J r . — h o l d s the

abstract b e l i e f that the law must k e e p its p r o m i s e s . is a p o w e r f u l personal

d r a m a and

T h e story o f the g a r d e n

a p o w e r f u l family

drama,

r e p l a c e m e n t o f G o d the Father b y the i m p e r s o n a l C a t e g o r i c a l

and the

Imperative

w o u l d . I think, b e a non-trivial m o d i f i c a t i o n in the story. I a m s u p p o r t e d in this hunch b y , i f I understand h i m c o r r e c t l y , Bernard W i l l i a m s . H e has argued

in his b o o k Shame and Necessity—that

Western

guilt m o r a l i t y (in contrast to s h a m e m o r a l i t y ) had, at the t i m e o f its o r i g i n s , o n e great strength: attention to the hurts and c l a i m s o f v i c t i m s . H e c l a i m s that the strength w a s lost, h o w e v e r , w h e n guilt m o r a l i t y b e c a m e o v e r l y K a n t i a n — i . e . , h i g h l y abstract and f o r m a l .

9

T h e w o r r y that W i l l i a m s raises

Bernard Williams. Shame and Necessity, University o f California Press, 1993. esp. pp. 219-223. I realize that the interpretation o f Kantianism discussed in this essay is not the only one and is, perhaps, not the most plausible one. I am, for example, drawn to the kind of Kantianism developed by Barbara Herman, who interprets Kantianism in such a way as to provide proper moral space for the moral values o f family and intimacy. I do not, however, 9

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about guilt morality in general applies, I think, to the Kantianism o f Hampton's particular analysis o f immorality. T h e powerful claims o f victims their hurts, their outrages, even their hatreds—drop out in favor o f an abstract concept o f defiance to law. What drops out as well (I suspect) are the powerful reactive attitudes that seem s o naturally a part o f either being a victim or reacting to victims but so artificially grafted on to abstract notions o f law. If, as Hampton claims, her goal is in part to explain our ordinary reactive attitudes to wrongdoers, then the defiance theory in my judgment fails to provide such an explanation. Hampton does, in her essay " T h e Nature o f Immorality," make a passing reference to guilt as "misery over the unjustified and unjustifiable harm one has caused to others" (p. 42) and in her essays on the retributive theory o f punishment she has made the claims o f victims central in her outlook. So I know that her writings often reveal a deep concern for such matters. What she fails to see, however, is that this concern—expressed here in passing and made central in essays on other topics—simply does not sit at all well with the defiance theory o f immorality. If the essence o f immorality is defiance o f the rules, o f the moral law, then w e should feel the same amount o f shame and guilt in all cases o f wrongful defiance - regardless o f whether anyone is hurt by that defiance. But we d o not; this is simply not the way w e are wired. 10

Let us return to the issue o f self-hatred and the need for self-forgiveness and pursue in that context these issues o f "moral luck." A normal person who drives while intoxicated and kills a child in a crosswalk w i l l , I suspect, feel self-hatred for a long time perhaps unto death. But that same person probably w i l l not feel self-hatred if, through good luck, there is no child in

think that this was Jean Hampton's kind o f Kantianism or that Herman would be tempted to stress so heavily a defiance account of immorality. Thus these matters, interesting and important as they are, will not be pursued in the present context except to say this: I think that Hampton's conception of Kantianism is (unlike that found in Herman and others) greatly under the influence o f - - a n d perhaps distorted by—a certain Protestant vision of Christianity. For an example o f Barbara Herman's way o f interpreting Kantianism, see her "Agency, Attachment, and Difference," Ethics, Volume 101, Issue 4. July 1991, pp. 775797. Hampton's thoughts on the retributive centrality o f victim vindication, first suggested in Forgiveness and Mercy, received their final and fullest statement in her "Correcting Harms Versus Righting Wrongs: The Goal o f Retribution." U. C.L.A. Law Review, Volume 39. Number 6. 1992, pp. 1659-1702. 10

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the crosswalk when he speeds through it. In the first scenario, the person may spend a lifetime searching in vain for self-forgiveness, whereas in the second scenario the person would hardly see the point o f even raising the issue. T h e difference here can only be explained by the presence o f harm in the one case and the absence o f harm in the other; the element of defiance—if it is present at a l l — i s the same in both. Our reactive attitudes simply are what they are, and any theory that purports- as Hampton's d o e s — t o "explain the kinds o f reactive attitudes w e have towards wrongdoers as [these attitudes] function in our everyday judgments and practices" must explain them as they are not as they would be i f w e were programmed in a more Protestant-Kantian way. Let m e sum up m y critique o f Hampton to this point: I think that the kind o f self-hatred that Hampton calls moral hatred (a kind o f hatred in need o f self-forgiveness) cannot be explained by her defiance v i e w of immorality W e typically hate ourselves, not because o f such abstract and formal violations o f moral rules, but because w e see vividly the harm that we have inflicted on others by such violations. Indeed, although some Kantians hale to admit it, the nature o f the harm often enters into the explanation o f the severity o f the violation. Robust defiance o f major rules will often, in the absence o f injury, leave us free—if not o f all negative emotions o f selfassessment—at least o f such heavy ones as self-loathing and self-hatred. K n o w i n g or even merely thoughtless neglect of lesser rules, however, will often generate self-hatred if w e see that such neglect inflicts injury—particularly injury on those with whom w e are intimately involved and about whom we care deeply. T h e writer A . N . Wilson captures this point nicely in the following passage from his novel Incline Our Hearts:

It is only on those whom I have loved that I have ever knowingly inflicted pain. The guilt of it remains for ever, my words selected with such malice and the startled expression on the victim's face as the effect went home. These are the faces which return during nights of insomnia, forever hurt in my memories, and inconsolably so. It is said that time is a healer, but it is not necessarily so. Memory has the power to encapsulate moments of pain, to freeze them, sothatthough the person who suffered has drifted on into other worlds and other states of feeling or non-feeling, the remembered moments of pain can stay. Sometimes in spells of profound depression, it is these moments alone which surface in the memory. Everything else is a bland, misty background against which these figures stand out sharp and clear—women in tears. or my uncle, drawing

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backthecorner of his lips and sticking a pipe in his mouth, trying to conceal the extent to which I was hurting him. 11

Wilson here captures perfectly at least m y sense of the paradigm cases where self-hatred is likely to arise and thus where self-forgiveness may be needed. And these cases have, so far as I can see, almost nothing to do with defiance - either of the moral law or o f some other notion o f an authoritative command. How, then—if not in terms of defiance—are w e to conceptualize a foundation for the kind o f moral self-hatred that might be cleansed by selfforgiveness? Jean Hampton herself has pointed us in a better direction not in her " o f f i c i a l " theory o f immorality as defiance, but in the victim-centered theory presupposed in her writings on retribution. Here she makes harms of a certain sort—harms she calls "moral injuries" - central and writes o f them in a way that is both eloquent and profound. Here is a sample passage: If moral injury is not [harm of the kind acknowledged in tort law), and if it is not [merely] the psychological painthatone might feel after the wrongful treatment, then what is it? As I shall explain, it is a particular kind of injury to the person's value....Wrongful actions that merit retributive punishment carry meanings that effect injuries to a person's value in one of (wo ways: cither they can damage what I will call the person's "realization of his value." or they can damage "the acknowledgment of his value." [Such wrongful actions are thus] an affront to the victim's value or dignity (supra note 10. pp. 1672, 1666). I do not have space here to spell out the details of this account and do not really need to for present purposes but let me make t w o general points about it. (I will have to make these points so briefly that they may be more cryptic than helpful.) The first point concerns Hampton's Kantianism. In her "official" account o f immorality as defiance, Kant's universal law formulation o f The Categorical Imperative seems uppermost in her mind. The account of immorality presupposed by her retributive theory, however, seems to employ the second, or Respect for Persons, formulation o f that imperative. Since, as I have argued elsewhere, the second formulation is the really important one.

11

Penguin Books, 1988/1990. pp. 143-144.

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this change o f emphasis strikes me as all to the

good.

12

I also sus-

pect—though I am merely a guessing outsider here—that the respect for persons emphasis may capture another important aspect of Jean's particular Christian commitments because it may represent an attempt to state, in secular terms, something o f the idea that each human being has a precious worth or dignity because created in the image o f God. The second general point I want to make lays bare, i f I am correct, a certain irony. It seems to me that her defiance theory has serious shortcomings as a theory o f immorality (its intended purpose) but contributes a great deal to the theory o f retributive punishment. Indeed, it can be viewed as a complex and profound elaboration of Herbert Fingarette's idea that criminals, voluntarily defying the rules that have authority over them, should have their wills humbled through the suffering of punishment.

13

On the other hand, her

powerful idea that one o f the gravest o f all wrongs is moral injury that affronts the dignity o f a person has, in my view, less to contribute to the retributive theory o f punishment (the purpose for which she introduces it) than to our understanding o f immorality—at least immorality of the kind that might occasion talk of self-hatred and self-forgiveness. (Surely the stranger who, at night, steals my car from the street in front o f my house deserves to be punished. But—assuming normal psychology and social norms—there will be little affront to my dignity or worth in that particular criminal act.) Let us return then to self-hatred or self-loathing.

Applying again my

introspective test—I do not know what other test to apply—I find that the idea o f immorality as affront to the worth or dignity of persons (the idea of immorality presupposed in Hampton's treatment of retribution) does at least partly capture many of those acts from my own past that I can only recall with pain and some degree of self-hatred—shame that I could have been the sort of person who performed the acts for the reasons that I did and fear that the seeds o f such a person might still remain within me.

(I regret being

autobiographical again, but I do not see how one can profitably discuss these issues in the abstract.) I recall cases such as these: revealing that I was ashamed o f my father in front o f my college roommates and deeply hurting

See my "Human Decency and the Limitations o f Kantianism." Rechtstheorie. Beiheft 15, 1993, pp. 215-222. Herbert Fingarette, "Punishment and Suffering," Proceedings of the American Philosophical Association, Volume 51, 1977, pp. 499-525. 12

13

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his feelings, betraying a high school friend and shunning him because o f parental pressure—a shameful act of the kind so painfully and eloquently portrayed in William M a x w e l l ' s novel So Long, See You Tomorrow, and at a later stage in life—abandoning a vulnerable junior colleague in circumstances where my support was expected and needed. (J. L. Austin once queried: " H o w many o f you keep a list o f the kinds o f fool you make o f yourself?" Apparently,I keep such a list.) The list I have presented contains merely three (and by no means the most serious) o f the many moral failures that I will never get fully out o f my memory; and, i f I wanted to group them under one heading, Hampton's concept o f failing to accord m y various victims their proper respect would. I think, be a better start than some abstract notion o f defying the moral law. (This would only be a start and not the whole story, o f course, since recalling even disrespectful treatment would probably not occasion much self-hatred if it had gone unnoticed and these people had not actually been hurt by it the problem o f moral luck again.) But wait a minute, someone might now say. Is there not an easy way to qualify Hampton's original defiance claim and make it work for the cases just presented? Is not at least one moral law the one that reads "treat all people with proper respect" and are not the cases that I have painfully recounted from my own past (cases like the ones portrayed by W i l s o n and M a x w e l l ) simply cases where I have defied that moral law? I do not think that this will work. Hampton, you will recall, conceptualizes immorality as defying the moral law because one wants to satisfy one or more o f o n e ' s " w i s h e s " — b y whichI assume she means some selfish aim. But in the cases I have described I was not aware o f any defiance or rebellion—what I did in these cases being too base and weak to merit such heroic and assertive words. (Rebellious defiance seems more likely to generate pride—improper pride o f course—than guilt and shame.) In the cases described I was merely an ordinary human bad actor;I was not Milton's Satan. Neither wasI clearly driven by the claims o f what Kant calls "the dear self." Kant tends to overestimate the role o f selfishness and e g o i s m in explaining immorality, andI think that Hampton is tempted to follow him in this mistake. The moral failings for whichI retain some self-hatred, however, have rarely been so motivated. They have rather been motivated by such things as weakness and thoughtlessness, the insecure desire to fit in and not stand out in front o f a peer group, flawed ideas o f such virtues as

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friendship and professionalism and family loyalty, misplaced allegiance to law and other rules, petty and ill-tempered vanity, moral cowardice, and occasionally even outright cruelty and malice—none o f these (as Bishop Butler taught us) being selfish or mere wishes in any ordinary sense. (Again, I So where are w e in understanding moral hatred—self-loathing on moral grounds?

If I am right, this is often to be found in the injury w e bring to

others by our disrespectful treatment o f them—a kind o f injury that Jean Hampton does a splendid j o b of explaining in her writings on retributive punishment. Do we then have a complete grasp of the kind o f moral self-hatred that seeks self-forgiveness? Not quite,I think, and I would be inclined to add at least four additional discussions to what has been said thus far. (1) Sometimes w e may experience self-hatred where there is no responsible wrongdoing on our part at all—e.g., the guilt one might feel over being a survivor o f the Holocaust or of a battle where many o f one's friends died. This, sometimes called "survivor guilt," has been labeled as an instance o f "non-moral guilt" by Herbert Morris—non-moral because it does not involve culpable wrongdoing.

14

However, since this kind of guilt—as Morris himself

points out -rests upon the morally relevant and admirable property o f human solidarity, it seems to have at least one important moral dimension. Thus when Hampton says that such guilt is simply "inappropriate" ( " T h e Nature o f Immorality," p. 26), I think that she is being hasty. ( 2 ) One might also experience self-hatred in cases where one has done the right or even the morally obligatory thing. There is an old World War II movie—the title of which I have forgotten—that portrays a submarine captain (played, almost certainly, by John W a y n e ) who is forced to crash d i v e his submarine to save it from aircraft attack—leaving a couple o f his sailors on deck where they drown. H e surely did, all things considered, the right thing. Even the dead sailors, if asked in some "original position," would surely have agreed to the principle o f saving the ship and the majority o f the crew even at the cost of a few lives. However, the captain is eaten out with guilt, selfloathing, and begins to engage in heavy drinking and other self-destructive

Herbert Morris, "Nonmoral Guilt," in Responsibility, Character and the Emotions, ed. FerdinandSchoeman,Cambridge University Press, 1987, pp. 220-240. 14

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behavior. H e did not defy any moral rules—indeed he consciously acted on the moral rule that was controlling in the situation—and he did not treat anyone with a lack o f respect. And yet his feelings here seem very human and understandable—and even moral to the degree that feelings o f solidarity with our fellows count, as I think they do, as moral feelings. He needs selfforgiveness—something he is more likely to get from acceptance by the friends and families o f the dead sailors (an acceptance that is at least very like forgiveness) than by some intellectual argument that, all things considered, he did the right thing. After all, he knows this already and still aches with self-hatred simply because he was the causal instrument o f the deaths o f his sailors and would not be surprised, human beings being what they are, if the friends and families o f those sailors viewed him with aversion—as tainted—simply because o f that instrumental connection. Although w e would surely want this captain, eventually, to overcome his self-hatred, it strikes me as a point in favor o f his character that he for a time experiences such a feeling. I thus resist regarding the feeling as merely inappropriate or irrational or neurotic. (It is not, for example, like the selfhatred that is sometimes felt by totally innocent incest victims.) Strong feelings o f solidarity with our fellow human beings are to be commended; but—and here is the downside—such feelings preclude one's easily avoiding all guilt and self-hatred merely by noting "It was not my fault" or even " I did the right thing." I f I am correct about this, then perhaps w e need to be skeptical about any simple attempt to draw a sharp contrast between moral feelings and non-moral feelings. Perhaps even Nancy Snow's case o f the football player w h o drops the pass merits a reconsideration. ( 3 ) Self-haired is sometimes felt over what might be called failures o f virtue or excellence—cases where the failures have no victim except perhaps oneself. Thus a person w h o cannot overcome an addiction to heroin or alcohol might feel self-loathing—even if no harm comes to others—simply because o f a weakness o f character he regards as shameful. Although he might seek self-forgiveness, it is hard to see how he could coherently secure it through forgiveness from others—since, given there is no other person he has wronged, there is no other person to forgive him. He might, o f course, be aided in his journey toward self-forgiveness by the love or compassion o f others; but not all acts o f love are acts o f forgiveness. (4) Self-hatred surely admits o f degrees—a point that may be obscured by the very strong language Hampton uses in her discussion. She speaks—in

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passages I quoted earlier—of the wrongdoer as seeing himself as "cloaked in e v i l , " "infected with moral rot," "[having] nothing good or decent in him," and experiencing the "hell o f self-loathing." This language strikes me as, in most cases, excessive. T h e self-hatred I experienced in the cases noted above—though genuine and aptly, perhaps, described as self-hatred—never led me to believe that there was "nothing good or decent in m e " or that I was "cloaked in evil." This language may be appropriate for the Nazi ethnic cleanser but is too extreme to be applied nonneurotically to ordinary human venality. In cases where this language is literally appropriate, perhaps the persons involved really are in rebellion against morality itself and—having inflicted unforgivable wrongs—should never be forgiven by others or themselves. Perhaps, if they do not relish the lifetime of self-loathing they have earned, they should simply kill themselves. Or perhaps such persons are best left to God. I really do not know what to say about cases this extreme. 15

Whatever one may counsel for such moral monsters, however, it would be highly misleading in my judgment i f w e took the reactive attitudes appropriate to these cases of extreme evil and tried to apply them intact to the more ordinary cases that Hampton is, I think, trying to illuminate. A t the very least, such application would introject into our moral lives a greater degree of high drama than is typically appropriate. So: Let us leave Nazis, persons who fee! self-loathing solely because of a lack of virtue, and persons who feel survivor guilt. These cases must be mentioned in a complete survey o f self-loathers seeking self-forgiveness, but they are not the cases that were o f central focus in Hampton's discussion. For what she wanted, you will recall, was a kind o f self-loathing that might properly be overcome through forgiveness by others; and the cases just discussed, for a variety o f reasons, do not fall neatly into that category. Our primary focus, therefore, must here be on cases where victims o f wrongdoing might, by their acts o f forgiveness, generate self-forgiveness in wrongdo-

The more I think about it, the moreI want to consider the possibility that even Hampton's preferred phrases "self-hatred" and "self-loathing" may be too strong for some of the ordinary cases she is concerned to illuminate. Wilson (in the passage quoted) spoke of the feelings of guilt that will remain with him all his life. Is it correct to say (is anything important added by saying) that he also feels (some) self-hatred or self-loathing, or is talk of guilt and shame enough? 15

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ers—such self-forgiveness being, according to Hampton, "perhaps the greatest good that forgiveness can bring." I have up to this point been trying to identify a concept o f self-hatred that could both be a legitimate target of self-forgiveness and could be accounted for on a plausible theory of immorality. I have rejected Hampton's defiance view o f immorality in favor of an account (drawn from her writings on punishment) o f immorality as a failure to respect the value incarnate in persons. With this background, we are now—at long last—ready to m o v e to a discussion o f the other two questions I promised to explore: Under what circumstances is self-forgiveness a good? H o w might forgiveness from another (one's victim o f earlier wrongdoing) bring about self-forgiveness? Given the shortness o f remaining space, my discussion here will be very compressed and will probably even seem dogmatic. Self-forgiveness strikes me as a good only in cases where the wrongdoer has inflicted an injury for which repentance and atonement are appropriate and where that wrongdoer has in fact sincerely repented and atoned. Absent the requisite change of heart, self-forgiveness is hasty and is a sign o f nothing more than moral shallowness. Listen to the comfortable state to which killer Richard Herrin brought himself after undergoing some Christian counseling about the need for selfforgiveness. After a mere three years in prison on an 8-25 year sentence for "heat of passion" manslaughter, Herrin thought that he had suffered enough for brutally beating his former girlfriend Bonnie Garland to death with a hammer. He is being interviewed by psychiatrist Willard Gaylin: HERRIN: I feel the sentence was excessive. GAYLIN: Let's talk about that a little. HERRIN: Well, I feel that way now and after the first years. The judge had gone overboard.... Considering all the factors that I feel the judge should have considered: prior history of arrest, my personality background, my capacity for productive life in society—you know, those kinds of things—I don't think he took those into consideration. He looked at the crime itself and responded to a lot of public pressure or maybe his own personal feelings. I don't know. I'm not going to accuse him o f anything, but I was given the maximum sentence. This being my first arrest and considering the circumstances, I don't thinkI should have been given eight to twenty-five years. GAYLIN: What do you think would have been a fair sentence? HERRIN: Well, after a year or two in prison. I felt that was enough....[Bonnie's dead] but there's nothing I can do about it....She's gone—I can't bring her back. I would rather

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that she had survived as a complete person, but she didn't....I'm not saying that I shouldn't have been punished, but the punishment I feel is excessive.I feel I have five more years to go, and I feel that's just too much....I don't see any purpose in it. It's sad what happened, but its even sadder to waste another life. I feel I'm being wasted in here. GAYLIN:....Are you saying two years of prison is a very serious punishment considering what you did? HERRIN: For me, yes. H e r r i n ' s e x e r c i s e in s e l f - f o r g i v e n e s s has, in m y v i e w , been aptly described b y M i c h a e l M o o r e as s i m p l y " s h a l l o w , easily o b t a i n e d s e l f - a b s o l u t i o n for a horrible violation o f a n o t h e r . "

1 6

B e i n g in this state is surely not a g o o d ; and

b r i n g i n g another to this s t a t e - - b y an act o f f o r g i v e n e s s o r in a n y other w a y — i s surely not a g o o d thing t o d o . It is nice to be able t o g e t o n w i t h o n e ' s l i f e and not b e c r i p p l e d o r

destroyed

b y too m u c h s e l f - h a t r e d — b u t

o n l y , in m y v i e w , in cases w h e r e o n e has earned the right to g o on by appropriate repentance and atonement. T h e r e are also, o f course, d i f f e r e n t w a y s o f g o i n g on. T h e fact that, after r e p e n t a n c e , w e s h o u l d retain e n o u g h a f f e c t i o n for o u r s e l v e s t o g e t o n w i t h o u r l i v e s d o e s not h a v e t o mean that w e should not carry s o m e burdens o f guilt and s h a m e — e v e n a little bit o f self-hatred-—forever.

T h e s e burdens

may properly h u m b l e us without crippling us. It i s . after all, p o s s i b l e to h a v e a s o m e w h a t tragic v i e w o f human l i f e — i n c l u d i n g o n e ' s o w n — w i t h o u t b e i n g d e s t r o y e d or d e f e a t e d b y that v i e w — a n insight often missed in p o p u l a r w r i t ings

on self-forgiveness

where

terminally

upbeat

cheerfulness

is the

insufferable o r d e r o f the day. It s h o u l d b e o b v i o u s from what I have said a b o v e ( a n d h a v e argued for e x t e n s i v e l y in the b o o k Forgiveness and Mercy)

that I a m i n c l i n e d to think

that f o r g i v i n g others should g e n e r a l l y be c o n d i t i o n a l upon the w r o n g d o e r ' s repentance. H a m p t o n says that f o r g i v i n g w r o n g d o e r s m a y " e n a b l e [ t h e m ] to f o r g i v e t h e m s e l v e s b y s h o w i n g them that there is still e n o u g h d e c e n c y in t h e m t o warrant r e n e w e d associations w i t h t h e m . "

B u t h o w can they be

s h o w n this i f it is not true; and h o w can it b e true i f the w r o n g d o e r is unrepentant? I f the w r o n g d o e r is unrepentant, h e d o e s not (in m y v i e w ) merit

Michael Moore. "The Moral Worth o f Retribution," in Responsibility, Character, and the Emotions, ed. Ferdinand Schoeman, Cambridge University Press, 1987. p. 214. The Gaylin-Herrin interview is quoted by Moore from Gaylin's book The Killing of Bonnie Garland, Simon and Schuster, 1982. pp. 325-7. 16

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forgiveness. I f h e is already repentant, the f o r g i v e n e s s m a y b e appropriate but can aid little in his moral rebirth since, given his repentance, he is already w e l l d o w n the road toward moral rebirth. A t most f o r g i v e n e s s can support and reinforce what is already there. Jean thinks that f o r g i v i n g w r o n g d o e r s contributes greatly to both their moral rebirth and to their reacceptance.

I

think that she is right about the latter, b u t — f o r the reasons n o t e d — I have s o m e skepticism about the former. T h e differences b e t w e e n Jean and m e on this topic m a y be a result o f the fact that she has a particular Christian perspective that I d o not share. strands o f Christianity—though

not, o f course, a l l — m a k e

Many

forgiveness

unconditional—a free gift or act o f grace. M y o w n v i e w is m o r e cautious and s t i n g y . Jean, for e x a m p l e , d o e s not f o l l o w m e in d e m a n d i n g repentance as a precondition o f forgiveness and w r i t e s as f o l l o w s : Even if the wrongdoer hasn't separated himself from the immoral cause, forgiving him is warranted if the forgiveness itself would effect the separation by softening his hardened heart and thus breaking his rebellion against morality (Forgiveness and Mercy, p. 84). O f course, w e have all heard stories w h e r e repentance and rebirth have been generated

from

a free gift o f forgiveness without awaiting repen-

tance—the rebirth o f Jean Valjean in Les Miserables b e i n g the most famous literary e x a m p l e .

I w o u l d not for a m o m e n t deny the possibility o f these

stories. I w o u l d , h o w e v e r , suggest that there m i g h t b e other stories that are equally or more c o m m o n — s t o r i e s where rebirth w a s generated b y the desire to earn, through repentance, the thus far withheld forgiveness and l o v e o f the person v i c t i m i z e d . I am reminded here o f the famous story o f L o r d B a c o n w h o , w h e n he asked a priest the meaning o f a large painting in a seacoast church, w a s told that it represented all o f the sailors w h o had b e e n s a v e d through prayer.

from

drowning

" A n d w h e r e , " asked B a c o n , " d o y o u hang the picture o f

those w h o w e r e not s a v e d ? "

I fear that, when H a m p t o n and others w r i t e

uncritically o f the redemptive p o w e r o f receiving forgiveness, they are b e i n g a bit like this priest. L e t m e n o w bring to a close this rambling set o f free associations on Jean Hampton on immorality, self-hatred, and self-forgiveness. I have argued that she has generally pointed us in the right direction on these topics w h e n she

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has emphasized the dignity and worth o f victims, but I have expressed skepticism both about her use in this context o f a defiance theory o f immorality and about her optimistic assumptions about the propriety and the efficacy o f aiding wrongdoers' self-forgiveness through our forgiveness o f them.I

hope that it has been obvious that, even where I have disagreed with

her, I have learned enormously from her. She has advanced our thinking on an important and rarely discussed set o f issues at the intersection o f philosophy, psychology, and religion by bringing to bear on those issues a rare combination o f intellectual brilliance and moral

seriousness—a

combination that runs throughout all o f her philosophical work. One final personal note: In the years since the publication of Forgiveness and Mercy, I have received numerous compliments for the wisdom and profundity o f m y thoughts on forgiveness—most recently from theologian Donald W . Shriver Jr., author o f the book An Ethic for Enemies, Forgiveness in Politics.

17

In well over half o f these cases—including Shriver's—I have

made the humbling discovery that the part o f the book that was really being admired and cited was the part written by Jean Hampton, a part for which I was receiving credit solely because m y name appears on the book as first author. What can I say?

I endorse the wisdom o f these judgments and will

continue to bask, however unjustly, in the reflected

glory o f Jean

Hampton—my valued and missed co-author and friend.

17

Oxford University Press, 1995.

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FORGIVENESS IN COUNSELING: A PHILOSOPHICAL PERSPECTIVE 1.

INTRODUCTION

There is, in the contemporary world o f counseling, an increasingly visible movement called "philosophical counseling" a movement that seeks to make the discipline o f philosophy more central to counseling than the discipline o f psychology. Although this movement has just started to gain attention in America, it has already attained some prominence in other countries—e.g. Israel, Germany and Holland. It seems that the influence o f philosophy on the practice o f counseling is currently o f sufficient weight that even some who would not identify themselves as philosophical counselors now impose philosophical constraints on their psychological research and practice. For example: A recent essay by psychologist Robert D. Enright on forgiveness in counseling, an essay to be discussed in more detail later, explicitly makes "philosophical rationality" a condition o f appropriateness in counseling. 1

A s a professional philosopher, I greet this entry o f m y discipline into a new and practically important field with mixed feelings: delight that m y discipline might be put to use in helping those with problems in living and fear that my discipline might be used in irresponsible ways -either by psychologists who do not understand philosophy well enough or philosophers who do not understand psychology well enough. Some careful thinking is surely in order here, and the purpose o f this essay is to make a start toward such thinking in a limited area of counseling practice: counseling forgiveness. I should begin by noting that I am not a counselor, philosophical or otherwise, and that I have no expertise in the practice o f counseling. I have become interested in the present topic because my wife, who is a professional counselor, recently brought to m y attention the great emphasis that

For a detailed discussion of the nature o f philosophical counseling and its increasing presence in the world of counseling, see the collection Essays on Philosophical Counseling, edited by Ran Lahav and Maria da Venza Tillmanns (University Press of America. NewYork, 1995). 1

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forgiveness—both of self and others—now receives in counseling literature and practice. In particular she brought to my attention the work o f psychologist Robert D. Enright and his Human Development Study Group at the University o f Wisconsin at Madison. Since Enright is, in effect, the "guru" o f forgiveness in counseling, my remarks here will be directed in the main at his work—particularly at his recent essay "Counseling Within the Forgiveness Triad: On Forgiving, Receiving Forgiveness, and Self-Forgiveness." 2

Both on my own and in collaboration with the late Jean Hampton, I have written on forgiveness as an issue in moral, political and legal philosophy; and it is my hope that these studies might allow me to bring to bear a useful perspective on the role o f forgiveness in another area: counseling. Since I am painfully aware that this a new area for me, and one in which I totally lack expertise, my remarks here will be extremely tentative—mainly raising questions rather than providing theories and answers o f my own—and aimed primarily at generating discussion. Perhaps counselors can have their thoughts and practices about forgiveness enriched by philosophers; and perhaps philosophers can have their speculations about forgiveness enriched by learning how forgiveness works (or does not work) in a context that is generally unfamiliar to them. Or perhaps not. W e will not know until we try some cross-disciplinary discussions and see how they go. This essay is an attempt to generate one such discussion. 3

Before passing to the specific discussion o f forgiveness and counseling, however, let me raise one general question about philosophical counseling. I assume that counseling in general has as its goal improving the lives and functionings of clients—making them more viable in the primary arenas ( i f Freud was right) o f work and love. The ideal, I suppose, is that they should become happy—or at least, to cite Freud again, that their neurotic incapacitating anxieties should be replaced by ordinary unhappiness. I would assume that philosophical counseling, if it is truly philosophical, will be to some degree guided not merely by such therapeutic values as anxiety reduction, but also by the value that is arguably intrinsic to philosophy itself: the value o f rationality in the realms o f belief and morality.

Counseling and Values, Volume 40. Number 2, January 1996. pp. 107-126. All pages references for Enright quotes are to this essay. See especially Forgiveness and Mercy, by Jeffrie G. Murphy (Chapters 1, 3, and 5) and Jean Hampton (Chapters 2 and 4), Cambridge University Press. 1988. 2

3

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Could, for example, a philosophical counselor welcome therapeutic improvement in a client that results from that client's coming to embrace a religious view that the philosopher might find irrational even superstitious? I fear a possible dilemma here: If the intellectual merits of the comforting and therapeutic views of the client are irrelevant, then why call this form o f counseling "philosophical"? If the intellectual merits are relevant, then will not the philosophical counselor at least sometimes experience a tension between the desire to support whatever will move the client toward viability and the desire to give no support to—and perhaps even to challenge—worldviews that (in the view of the philosophical counselor) cannot survive philosophical skepticism? In his Introduction to the book Essays on Philosophical Counseling, Ran Lahav suggests that philosophical counseling should avoid the "dogmatic approach" found in traditional philosophical systems. Philosophical counseling, he writes, "does not provide philosophical theories, but rather philosophical thinking tools." 4

Unfortunately, this claim by Lahav raises—at least for me more questions than it solves. Most systematic philosophers have not been dogmatic in the sense o f simply asserting views to be accepted as articles of faith. They have rather offered arguments or reasons for those views; and. if these are persuasive reasons, what is wrong with bringing the views to bear on counseling? If something is wrong, then one needs to argue for this and not merely hurl the insult "dogmatism." If counseling requires only the "thinking tools"—the methods of analysis and critical thinking—characteristic of philosophy, and not any o f the conclusions that philosophers have reached using those methods, then how does philosophical counseling differ from the cognitive approaches (using such techniques as cognitive restructuring) that have been around in psychotherapy for a long time? Consider an example germane to our present inquiry. Suppose a philosophical counselor believes that a particular client will never achieve his sought after happiness or even viability unless he forgives himself. But suppose, on philosophical grounds—perhaps through reading and being persuaded by Kantianism in moral theory—this same counselor is persuaded

Supra note 1, p. XI

4

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of the retributive theory of punishment and suffering—persuaded that justice demands that culpable wrongdoers suffer in proportion to their evil or iniquity. N o w finally suppose that this counselor believes that her client has done something so culpably evil that he ought to suffer for a long time—perhaps even unto death. Would such a counselor want to lead her client toward self-forgiveness (and its potentially cleansing and restorative healing) or might she instead think—and, given her philosophical views, quite understandably think—that this client should—absent deep repentance and atonement perhaps—never attain self-forgiveness but should forever suffer the self-hatred he so richly deserves? Martin Buber (thinking perhaps of former Nazis who might seek therapeutic help?) once cautioned therapists that, in their desires to help clients overcome neurotic guilt, they should not do anything that might prevent clients from dealing properly with what he called their "authentic" or "existential" guilt. Contemporary counselors do not get too many former Nazis these days, of course, but they probably do get their share of those deep in the evil o f their own existential guilt—those who, for example, physically and sexually abuse their own children. Should these children be encouraged by counselors to forgive those who have visited these unspeakable horrors upon them? Should the perpetrators o f those horrors be encouraged to forgive themselves? If so, is this because—in the realm o f counseling—the value o f client well-being gets to trump all other values? Or is it because a background worldview is being tacitly presupposed—a Christian perspective o f love and forgiveness, perhaps—that might not withstand philosophical scrutiny or that might compromise the " d o not impose your values" principle that many counselors recite as a near mantra? These are the questions to which I shall now pass. 5

2. ROBERT ENRIGHT ON FORGIVENESS IN COUNSELING Enright writes of what he calls "the forgiveness triad": forgiveness of others, accepting forgiveness from others, and forgiving oneself. Although I suspect that he would not refer to himself as a philosophical counselor, he appears to

Martin Buber, "Guilt and Guilt Feelings," in his The Knowledge of Man, Harper and Row, 1965. 5

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accept a philosophical constraint upon acceptable counseling with respect to each aspect of his triad when he writes that "each aspect is...presented as philosophically rational and therefore appropriate within counseling....We...make a philosophical case for [forgiveness] as both rational and moral." Unfortunately, Enright does not explain what he means by "philosophical rationality." ( H e does find one philosopher, Margaret Holmgren, who agrees with him; but agreement with one philosopher, even as talented a philosopher as Margaret Holmgren, can hardly be a test for philosophical rationality. ) Neither does Enright explain why philosophical rationality is an acceptable constraint on counseling. These two omissions are importantly related, o f course, since the plausibility o f the constraint will surely to some degree depend upon how the operative concept in that constraint is analyzed. Also, for reasons noted previously, even the most plausibly analyzed concept o f philosophical rationality might be in tension with therapeutic goals if those goals are conceptualized in terms o f making the client feel and function better by, for example, removing anxiety. Though a philosophically rational morality might acknowledge anxiety reduction as a legitimate goal, it surely would not regard it as a dominant or controlling goal. There are clearly some puzzles here that require more thought. 6

It is possible, o f course—although Enright has provided neither an analysis of philosophical rationality (including morality) nor an argument for why such an analysis should constrain counseling—that an answer to both o f these worries will emerge from the details of his discussion. Thus I shall now pass to the triad itself. Because of space limitations, I will focus mainly on forgiveness of others and treat the other two elements in the triad in a much more cursory way. 3. F O R G I V E N E S S O F O T H E R S Enright is aware that some philosophers have argued that resentment o f injuries may be a sign o f self-respect and that therefore a too ready willingness to forgive, rather than being a virtue, may actually exhibit the vice of

Margaret Holmgren, "Forgiveness and the Intrinsic Value of Persons," American Philosophical Quarterly, Volume 30, 1993, pp. 341-352. 6

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servility. (Enright cites Joram Graf Haber for this view, but Haber clearly gets the view from me w h o , in turn, probably got it from combining the views o f Joseph Butler, Peter Strawson and Thomas Hill, Jr.). M y own version o f this view involves the claim that victims may be harmed symbolically as well as physically by those who wrong them. Wrongdoing is in part a communicative act, an act that gives out a degrading or insulting message to the victim—the message " I count and you do not, and I way that a victim may evince, emotionally, that he or she does not endorse this degrading message; and this is how resentment may be tied to the virtue of self-respect. ( A person who forgives immediately, on the other hand, may lack proper self-respect and be exhibiting the vice o f servility.) This does not mean that a self-respecting person will never forgive; but it does mean that such a person might make forgiveness contingent on some change in the wrongdoer—typically repentance—that shows that the wrongdoer no longer endorses the degrading message contained in the injury. Against this view, Enright (following Holmgren) writes as follows: A forgiver who knows that the act was unjust can see his or her own status as equal to the other person, regardless of the other's stance toward the offended person. In fact, resisting the act o f forgiving until the offender somehow changes is giving great power to the offender....An offended person who refuses to forgive until certain contingencies are met suffers twice: once in the original offense and again as he or she is obligated to retain resentment, along with its concomitant negative cognitions and perhaps even negative behaviors....To forgive, then, is to show self-respect (p. 109).

Who is right—Murphy or Holmgren/Enright? I am inclined to say that the answer to this question is probably highly client and context dependent; and that, because o f this, no universal prescription—either "always try to forgive" or "never try to forgive"—is justified. Enright and Holmgren claim that a person who fails to resent can see their status and dignity as not lessened by such a response, andI am happy to concede that this may be so in some cases. I am not concerned to argue that one is obligated to feel resentment or to retain it, only that feeling and retaining such a feeling is not always 7

In correspondence, Enright claims that he does not mean to endorse forgiveness as a universal prescription. I cannot find such restraint in his writings, however. 7

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w r o n g and is sometimes, for s o m e p e o p l e , a mark o f self-respect. W h a t I am concerned to stress is that, w h i l e a failure to resent can b e consistent with proper self-respect, it sometimes is not. T h e r e are, I think, cases that should b e troubling to the uncritical boosters for universal forgiveness—cases where the v i c t i m does not " s e e " his or her moral status and d i g n i t y lessened, not because the victim's self-respect is so w e l l - g r o u n d e d as to b e i m p e r v i o u s to assault but because the v i c t i m had an improperly l o w v i e w o f his or her moral status and dignity in the first place. S o m e p e o p l e , o f course, m a y get their self-respect from c o m p r e h e n s i v e religious v i e w s

e.g., the v i e w that each person is a precious child o f G o d .

G i v e n that such persons have a transcendent source for their s e l f respect, they m a y be less vulnerable to attacks mounted b y their f e l l o w humans and thus less inclined to feel resentment and more inclined to m o v e q u i c k l y to forgiveness. But several questions must be raised here. First, is such a c o m p r e h e n s i v e v i e w rational to b e l i e v e ? S e c o n d , m a y such a v i e w s i m p l y b e presupposed as a g i v e n by a counselor?

T h i r d , and finally, what about those w h o lack

such a religious v i s i o n and instead get their self-respect in m o r e normal secular w a y s

i . e . in w a y s that are dependent to a non-trivial degree on h o w

they are treated by others? (John R a w l s ' treatment o f the social d i m e n s i o n o f self-respect and self-esteem in Part III o f A Theory of Justice is magnific e n t . ) H o w are p e o p l e w h o l i v e their mental l i v e s in the secular, R a w l s i a n w o r l d to b e counseled with respect to resentment and forgiveness? Enright seems to see o n l y g o o d consequences

flowing

from a c o u n s e l i n g

strategy that aims at encouraging v i c t i m i z e d clients ( e v e n such

badly

v i c t i m i z e d clients as incest s u r v i v o r s ) to f o r g i v e those w h o have injured them.

H e writes that those w h o undergo f o r g i v e n e s s counseling manifest

"greater gains in forgiveness, self-esteem, and hope and greater decreases in anxiety and d e p r e s s i o n " than those in a control group ( p .

111).

8

I know nothing about designing experiments, butI wonder if the target group did not do belter than the control group presumably receiving no counseling?—simply because any counseling may be better than none.I would love to see a target group encouraged to retain resentment and take steps (within the limits of law and morality, of course) to get even with those who have wronged them, and see how they do. I am sure that such a group will not make "gains in forgiveness"—a question-begging test anyway—but they might achieve a kind of closure that raises their self-esteem and decreases their anxiety as well or better 8

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I find this passage puzzling for several reasons. First, it seems hopelessly circular to count greater tendencies to forgive as among the gains experienced by those w h o are counseled to forgive. This w i l l , o f course, count as a gain only for someone w h o is already committed to the general excellence o f forgiveness. Second, I would like to know more what counts as a "gain in self-esteem." Is this merely that one feels better about oneself something that could result if one came to think that one's status as a victim is proper, as no more than one deserves or that one has an accurate conception o f what it is to have full worth as a free and equal rational being? Third, and related to this, is a concern about the circumstances in which anxiety and depression reduction are to be counted as goods. What if they come about because one comes simply to accept that one's proper status in the world is that o f victim and thereby slops, as the ancient Greeks used to say, "kicking against the pricks"? In my v i e w slavery and oppression and victimization are made worse, not better, when people are rendered content in their victimization. The counsel to love, forgive and turn the other cheek may be good Christian theology, but I am not at all sure that it is always good advice for counselors to g i v e to victims. When Marx claimed that religion is the opiate o f the masses, he feared that certain religious worldviews might make oppressed people compliant cooperators in their own oppression; and I fear that forgiveness might sometimes function as such an opiate as well. H o w many battered women, for example, have returned to their batterers for more (and perhaps fatal) abuse because some counselor, inspired perhaps by Christianity, advised them to keep trying to save the marriage out o f love and forgiveness? I do not know what the answer to this question is, but I am worried (hat the boosters for universal forgiveness do not seem even to raise such issues. O n e possible consequence o f premature forgiveness is that one adopts a strategy that makes one's further victimization more likely. Such a consequence would have to be counted as a negative, surely. This is a negative consequence for the victim, but I can also imagine negative consequences for

than forgiveness. Also.I would like to know how many people in the forgiveness group came into it with an antecedent belief based in their Christianity perhaps that they ought to forgive.

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the wrongdoer. What i f confronting resentment gives some wrongdoers incentives to repent and reform? If this is so, then a hasty forgiveness might contribute to their further moral corruption by depriving them o f this important incentive. Thus making forgiveness contingent on repentance by the wrongdoer might in part be justified, not merely by the self-respect benefits that such a strategy sometimes confers on the victim, but also by the role that such a strategy might play in the rebirth o f the wrongdoer. W e have all heard Augustine's slogan—quoted approvingly by both Holmgren and Enright—that w e should "hate the sin and not the sinner." It is hard to see how the distinction between sin and sinner can even be drawn, however, so long as the sinner remains psychologically identified with his sin. However, if he breaks the identification through repentance, then the distinction may easily be drawn; and this may be another reason why a strategy o f making forgiveness contingent on repentance might sometimes be rational. 9

O f course, we all know stories where rebirth has been generated from a free gift o f forgiveness without awaiting repentance—the rebirth o f Jean Valjean in Les Miserables being the most famous literary example. I would not for a moment deny these stories. I would, however, suggest that there might be other stories as well—stories where rebirth was generated by the desire to earn, through repentance, the forgiveness and love o f the person victimized. M y point, you will recall, is not to debunk the possible value o f forgiveness in some (perhaps even many) counseling settings; I am rather concerned to express skepticism about it as a general counseling prescription. I am reminded here o f the famous story o f Lord Bacon who, when he asked a priest the meaning o f a large painting in a seacoast church, was told that it represented all those sailors w h o had been saved from drowning through prayer. " A n d where," asked Bacon, " d o you hang the picture o f those who were not saved?"I fear that Enright and his disciples may be a bit like this priest.

Setting out to forgive others as a part of one's own therapeutic agenda has a danger of drawing others in to that agenda in ways that may not be beneficial to them. In a splendid essay. Peter D. Baird describes his own realization that he was wrongfully trying to draw his aged father (who was suffering from Alzheimer's) into a drama of forgiveness when that drama was not consistent with the father's desires or interests. Peter D. Baird. "Remembering LaRoux," Maricopa Lawyer, February 1997, pp. 8-9. The essay originally appeared as the "My Turn" column in Newsweek on December 16, 1996. 9

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I h a v e , o f course, n o idea what E n r i g h t ' s o w n r e l i g i o u s c o m m i t m e n t s are

o r e v e n i f h e has any.

I cannot h e l p suspecting, h o w e v e r , that certain

Christian a s s u m p t i o n s — p e r h a p s acquired s i m p l y dominantly

Christian culture

counseling.

from g r o w i n g up in a

h o v e r behind his approach to f o r g i v e n e s s in

I h a v e already noted s o m e o f these, but let me b r i e f l y m e n t i o n

another: Enright's b e l i e f (a b e l i e f I once shared) that o n e should draw a sharp distinction between ( 1 ) forgiveness as an internal c h a n g e o f heart and ( 2 ) all those external b e h a v i o r s required for social r e c o n c i l i a t i o n .

I w o u l d submit

that this sharp distinction is nearly unintelligible within the Jewish tradition and perhaps in part e x p l a i n s w h y repentance is such an important p r e condition o f f o r g i v e n e s s within that tradition. T h e Christian tradition tends t o e m p h a s i z e purity o f heart as the core o f the virtue o f f o r g i v e n e s s , w h e r e a s the Jewish tradition g i v e s primary place t o the social dimension o f reintegration into the c o v e n a n t e d c o m m u n i t y . Enright c l a i m s that "resisting

the act o f

f o r g i v i n g until

the

s o m e h o w changes is g i v i n g great p o w e r to the o f f e n d e r " ( p . 109).

offender

But surely

this is not a l w a y s the case. If the offender greatly wants to be f o r g i v e n by m e andI

am

not much

interested

in f o r g i v i n g him

at least

until

he re-

p e n t s — t h e n it s e e m s t o m e that in this case the balance o f p o w e r is in m y favor and not in the f a v o r o f the o f f e n d e r .

A g a i n , m y earlier point:

these

matters are highly client and context dependent, and any universal p r e s c r i p tions should p r o b a b l y b e met with skepticism. Let me c l o s e this section with a c o u p l e o f personal stories.

The

first

c o n c e r n s o n e o f m y f o r m e r students, a y o u n g man (let us call him R a l p h ) with w h o m I

d e v e l o p e d a friendship.

10

Ralph o n c e c a m e to m e — b o t h as a

friend and us s o m e o n e w h o had thought about such matters p h i l o s o p h i cally

seeking a d v i c e o n a personal problem. H i s father, w h o had subjected

h i m t o repeated sexual abuse w h e n h e w a s a y o u n g b o y , had recently attempted

after many years o f separation

to

gain reentry into R a l p h ' s life.

T h e father demonstrated no signs o f repentance for his past i n i q u i t y , but s i m p l y seemed his o l d arrogant s e l f — a c t i n g as though, since Ralph w a s his o n l y l i v i n g c h i l d , h e had a right to at least the appearance o f a c o n v e n t i o n a l father-son relationship w i t h him. (It s e e m s that he w a s in part m o t i v a t e d b y

What follows as a single case actually collapses two different cases into one, with enough changes of detail to prevent (I hope) recognition o f either person. 10

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a desire to look normal and respectable in the eyes o f a new wife and family.) Ralph found this very disquieting. He had previously broken all relationships with the father—had even changed his last name so that he would not maintain even that relationship—and had for years felt comfortable with that rejection, with putting the father and all he stood for utterly out o f his life. Ralph's problem was this: His minister, and several o f his friends from church, kept counseling him that he had a duty to forgive the father and to welcome him back into family life—at least on limited terms. This was starting to make Ralph feel both guilty and afraid—guilty because he hated going against the teachings o f his religion and afraid that, if he did not continue to shun his father, the adaptive strategy that had worked so well for so long would collapse and he would suffer psychological damage. In short, for his own wellbeing, Ralph wanted to maintain his strategy o f resentment and rejection but wanted to do so only i f the strategy was validated, conceptualized as rational and morally acceptable (in contrast to having it conceptualized as sinful and unChristian). W e had several conversations and he read some of my writings on forgiveness and resentment—writings where I argue for the legitimacy o f resentment and for making forgiveness generally contingent on repentance. A s a result o f these encounters, Ralph claimed—with what accuracy I do not know—that I had helped him to accept the legitimacy o f his continued resentments. He decided to g o against his minister and retain a posture o f rejection and resentment toward his father. H e seemed comfortable with this—still does—and indeed claims that the only time he was ever uncomfortable about the strategy was when his minister was trying to make him feel guilty about it. The story raises for me some interesting questions: Is there any reason to think that Ralph's strategy o f resentment and rejection was—for him—irrational, immoral, or untherapeutic? Was he lucky that he talked to m e — w a s I, without realizing it, providing him with a kind o f philosophical counseling?—or would it have been better had he listened to his minister and perhaps obtained counseling from an Enright disciple? What would Enright himself say about cases like this—that they d o not occur (and that my understanding o f this case is necessarily superficial) or that they occur so infrequently that counseling forgiveness is still the best general strategy? I do not pretend to know the answer to these questions, but I do think that they are worth asking. Perhaps, as Enright claims, we are "often healed" (p. 111)

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when w e bestow forgiveness as a free, unconditional gift. But the skeptical voice within me wants to say: "Perhaps often not, as w e l l . " This brings me to my second story, one told to me by a colleague whose mother had survived the Holocaust during which she had been personally tortured by Doctor Joseph Mengele in one o f his many cruel medical experiments. This woman, now to all appearances a psychologically viable human being, was once asked by her son—my colleague—what she would want him to do if, after all these years, he ever encountered Mengele. His mother thought for a moment and simply said: " K i l l him." I find it hard to believe that this woman has missed out on something important—philosophically, morally or psychologically—in never attaining a posture of forgiveness toward her torturer. 11

4. RECEIVING FORGIVENESS AND SELF-FORGIVENESS Because of space limitations,I will not be able to discuss in any depth Enright's treatment o f the final two items of his "forgiveness triad": receiving forgiveness and self-forgiveness. The ideal case o f receiving forgiveness, according to Enright, involves a change in attitude and behavior—remorse, respect for the offended person, and a willingness to make amends (p. 113). So long as this does not involve imposing oneself upon an unreceptive forgiver—e.g., by making amends in an improper way or at an improper time—I see little to quarrel with in what Enright says here. Being forgiven in a spirit of arrogance or condescension is not true forgiveness and one might properly resent it rather than accept it. Being truly forgiven as an act o f love, however, might well be a step in the moral rebirth o f some people (the Jean Valjean example) and Enright is instructive and persuasive in describing the details o f how such a forgiveness interaction might be structured. (Recall that my doubts about the universal validity of

It is interesting that in the three James and Alice scenarios offered by Enright (p. 115), the only time the forgiveness process seems to go at all well is in the third scenario where (ifI understand it correctly) Alice is able to forgive James in part because James has reached a stage of repentance—the very thing that Enright claims is not supposed to be a precondition for forgiveness. Rather than making Enright's point, this scenario seems to go against it. 11

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his prescription do not entail doubts about its value for a w i d e variety o f clients in a w i d e variety o f contexts.) I am less happy with what Enright says about self-forgiveness. In selfforgiveness, he argues, the wrongdoer m o v e s

from

a position o f self-

estrangement to being comfortable with himself in the world (p. 117). H e can finally, in the vernacular, get on with his life. But is it morally proper for all wrongdoers to get on with their lives in this way?

Returning to Buber's worries about authentic guilt, w e might w e l l

wonder if certain persons—by their horrible acts—have not forfeited forever their right to be " c o m f o r t a b l e " with themselves. O f course, most ordinary wrongdoers after most acts o f ordinary wrongdoing, clearly have a right (after proper repentance, at any rale) to resume their lives with some affection for themselves.

12

But what about the non-ordinary wrongdoer?—the torturer, the

ethnic cleanser, the abuser o f children? Might w e not want to say o f such a person what Cynthia O z i c k said o f a repentant N a z i m u r d e r e r — " L e t him g o to h e l l . Sooner the fly to G o d than h e " — o r what Elie W e i s e l said in his prayer at A u s c h w i t z — " G o d o f forgiveness, do not forgive those w h o created this place. G o d o f mercy, have no mercy on those w h o killed here Jewish children"? I f we believe in the reality o f e v i l — a n d d o not want to excuse all wrongdoers as themselves helpless victims o f their own terrible childhoods and mental pathologies—might w e not want to say o f those i n v o l v e d in

But perhaps not total affection. The fact that we should generally retain enough affection for ourselves to get on with our lives does not have to mean that we should not cany some burdens of guilt and shame forever. These burdens may properly humble us without crippling us. One can have a tragic view of human life without being destroyed or defeated by the view. Note this wonderful passage from the novelist A. N. Wilson; "It is only on those whom I have loved that I have ever knowingly inflicted pain. The guilt of it remains for ever, my words selected with such malice and the startled expression on the victim's face as the effect went home. These are the faces which return during nights of insomnia, forever hurt in my memories, andinconsolablyso. It is said that time is a healer, but it is not necessarily so. Memory has the power to encapsulate moments of pain, to freeze them, so that though the person who suffered has drifted on into other worlds and other states of feeling or non-feeling, the remembered moments of pain can stay. Sometimes in spells of profound depression, it is these moments alone which surface in the memory. Everything else is a bland, misty background against which these figures stand out sharp and clear—women in tears, or my uncle, drawing back the corner of his lips and sticking a pipe in his mouth, trying to conceal the extent to which I was hurting him." (Incline Our Hearts, pp.143-144). 12

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certain e v i l s that they should be brought to self-hatred, not freed from it, and forever

view

excrement?

themselves

as persons

who

have

made

of

their

lives

13

This deontological/retributive moral v i s i o n — o n e that takes the past v e r y s e r i o u s l y — p r o b a b l y cannot be demonstrated as rationally superior to all c o m p e t i n g v i s i o n s ; but I d o think that it has to b e a c k n o w l e d g e d as at least a respectable candidate for a philosophically acceptable moral w o r l d v i e w . T h e upbeat teleological v i s i o n o f ultimate trust and l o v e that seems to lie behind much o f the literature o f forgiveness is not the only v i a b l e candidate. W h a t bearing might the deontological/retributive v i e w have on the practice o f counseling?

Must a counselor reject the v i e w entirely? ( A r e persons w h o

hold the v i e w simply ill-suited to be counselors?) I f the counselor d o e s h o l d the v i e w , should he or she refuse to take on persons p e r c e i v e d as e v i l as clients? ( I m a g i n e yourself a counselor called upon to help A d o l p h Eichmann find peace with himself before his death. W o u l d y o u accept h i m as a client? W o u l d y o u accept the serial rapists and the abusers and murderers

of

children? W o u l d you accept those w h o brutalize the e l d e r l y ? ) I f counselors d o take on such clients, might they justify the practice in terms o f s o m e doctrine o f role responsibility?

M i g h t they see their role responsibility as

limited simply to serving their clients rather than considering large moral and social i s s u e s — m u c h as a criminal defense l a w y e r might, in d e f e n d i n g a dangerous criminal, seek moral insulation in the role responsibility o f a lawyer? Just as the lawyer might b e l i e v e that matters o f guilt are best left to a j u r y , e v e n a counselor w h o b e l i e v e s in evil and the retribution that evil p e o p l e deserve might feel fallible in making such determinations and b e l i e v e that they are best made by o t h e r s — G o d perhaps—and thus might take on all clients in a spirit o f moral humility. ( T h e counselor might here be guided b y N i e t z s c h e ' s insight that, in doing battle with monsters, w e must b e careful not to b e c o m e m o n s t e r s . )

14

Is such a posture o f caution and moral humility the

proper one for a counselor to adopt, or is it m e r e l y a rationalization that

I have developed my ideas on self-forgiveness at greater length in my "Jean Hampton on Immorality, Self-Hatred, and Self-Forgiveness," Philosophical Studies, Volume 89, 215236, 1998. I examine these cautions in greater detail in my forthcoming "Moral Epistemology, The Retributive Emotions, and the 'Clumsy Moral Philosophy' of Jesus Christ." 13

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allows the counselor to avoid giving evil its due and taking responsibility for a failure to confront it? I have raised many questions here, and I do not pretend to know the correct answers to them. I do, however, believe that these questions must be faced i f counseling—and the role that forgiveness might play in counseling—is to be placed in a genuine philosophical context. Such a context will often reveal complexity and tension a war o f competing values and force us to see that many gains carry with them some non-trivial losses. There might even be a general tension between counseling (as client centered) and philosophy (as truth rationality centered) o r at least a tension between counseling and global moral concerns. If this is so, then it is better to bring this to full consciousness than to pretend that all is well so long as w e practice love and forgiveness. What the Chicago School has taught us about economics may also be true for forgiveness counseling: there is no free lunch.

5. CONCLUSION In his closing argument in the Loeb and Leopold sentencing hearing. Clarence Darrow made a passionate plea for the overcoming o f hate by love and quoted these famous lines from Omar Khayyam: So I be written in the Book of Love. I do notcarethat book above, erase my name or write it as you will, so I be written in the Book of Love. 15

If we could only be written in one book, thenI suppose that all of us would prefer to be written in the Book of Love rather than in the Book of Resentment. Forgiveness, as an outgrowth o f love, is often a wonderful—even blessed thing; and thus I have no quarrel with those who would advocate its power and value in counseling or in a variety o f other contexts. Perhaps it is even reasonable to regard it as the default position. M y only concern is that allegiance to this value should not be blind—that it should be tempered with a consideration of the possibility that, for some people in some

I have taken this quotation, and some of the ideas for this concluding section, from Michael Moore's splendid essay "The Moral Worth of Retribution" in Responsibility. Character and the Emotions, ed. Ferdinand Schoeman, Cambridge University Press, 1987. 15

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contexts, it might not be the course to be recommended by either good philosophy or good counseling.

16

An earlier and much briefer version of this paper was presented at the March 1997 meeting of the American Society for Philosophy, Counseling, and Psychotherapy (held in conjunction with the annual meeting of the Pacific Division of the American Philosophical Association). The paper has benefitted from comments by Robert Enright and Margaret Holmgren, who have threatened to co-author a response ifI ever get around to publishing n 16

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INDEX O F NAMES

A d a m and Eve, 206. 208. 209 A m i s , Martin, 141 Anselm, Saint, 82 Arenella, Peter, 151, 166 Aristotle, 49, 75, 128. 168. 177, 180 Auden, W. H., 183 Austin, J.L., 8 5 , 2 1 4 Bach, Johann Sebastian, 125 Bacon, Lord Francis, 138 Baird, Peter D., 231 Bandes, Susan, x Baumgardt, David, 14 Beck, Lewis White, vii, ix. xiii. 1-4, 8, 12-14, 17 Benhabib, Seyla, 13 Bennett, William, 129 Berryman, John, 141 Bork, Robert, 125 Braithwaite, John, 76 Brandt, Richard, 89 Brien, Andrew, xiii, 6 2 , 70, 87 Broad, C. D., 16 Buber, Martin, 226 Burke, James Lee, 202 Butler, Bishop Joseph, 16, 22. 119, 130, 203, 215, 228 Byrd, B. Sharon, 53 Canacakos, Ellen, xi. 167 Carter, Stephen, 9 Cassell, Sir Earnest, 177 Chekhov, Anton, 134 Chirac, Jacques, 62 Cioran, E. M., 43

Cleese, John, 94, 113 Cohen, Leonard, 148 Coleman, Jules L., xiii. 66. 201 Da Venza, Maria, 223 Daley, Richard, 200 Dallmayr, Fred, 13 Dante. 197 Darrow, Clarence, 237 Davies. Marion, 129 Davis, Michael, 153 DeMarneffe. Peter. 167 Delgado. Richard, 56 Devlin, Lord Patrick, ix, 89-95. 98. 99. 102. 104, 105, 109, 110, 112, 114 Dickinson, Emily, 190 Dolenko, David, 153, 166 Dostoyevski, Fyodor, 205 Dresser, Rebecca, 51 Dressier, Joshua, 46, 98, 144 Duchamp. Marcel. 123 Duff. R. A . , 71, 72, 75-77,87 Durante. Jimmy, 179 Durkheim. Emil, 93 Dworkin, Gerald, 26 Dworkin, Ronald, 27, 96, 99, 100, 112, 113, 127. 132-135. 137 Eichmann, Adolph. 236 Ellman. Ira, 167 Enright. Robert D., 223, 224. 226-229, 231-235. 238 Epstein, Jeremy G., 188 Estrich. Susan. 142

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Feinberg, Joel, ix. xiii, 46, 89, 91.92. 99-102. 114-117.154. 157. 166. 201

Hearst, William Randolph. 129 Hegel, Georg Wilhelm. 98 Helms, Jesse, 131

Fingarette, Herbert. 53, 75, 81,

Henrich. Dieter, 7 Herman. Barbara, 15,47,209. 210 Herrin, Richard, 218,219 Hijuelos, Oscar, 87 Hill, Thomas E. Jr., v, x, 228 Hitler, Adolf, 39 Hobbes, Thomas, 5, 16. 22-24. 197

213 Finley, Karen, 119 Fiss. Owen M., 120-122 Foot. Philippa, 11-13. 189 Franklin, Benjamin, 142. 143 Freud. Sigmund. 2,20, 50, 56, 149. 205. 224 Gandhi, Mohandas. 22 Garland, Bonnie, 218.219 Garve, Christian. 5, 7 10,14-17. 19.21.22 Gauthier, David, 201 Gaylin, W i l l a n t 218, 219 Gentz, Friedrich, 7, 14 George- Robert P., 117, 141 Gillespie, Cynthia K., 160 Golffing, Francis. 65 Goodin, Robert E.. 181 Gregor, Mary, 13 Grey, Betsy, 72 Gross, Hyman, 46,154 Haber, Joram Graf, 228 Habermas, Jurgen. 8, 25 Haksar, Vinit, 104 Hampton, Jean, vii, ix, x. xiii, 2, 43. 56. 6 2 . 6 8 . 7 1 . 8 2 . 89. 104. 110-117. 201-208. 210-221, 224.231,234,236 Harding, Tonya, 83, 84 Hart. H. L. A . , ix, 90-92, 9 4 , 9 5 , 100. 102. 105. 110. 112. 114

Holmes, Oliver Wendell, Jr.. 209 Holmgren. Margaret, 227, 228, 231.238 Hruschka. Joachim, 4 3 , 4 5 Hubin, Donald, 166 Hughes. Robert, 63, 122. 129 Hume, David, 2, 57 Humphrey, Ted, 5 James, Elbert, 78 Jefferson. Thomas, 136, 137 Jesus Christ, x. 4 7 , 5 3 , 54, 114, 115. 119. 236 Johnson, Samuel, 72. 107, 124 Jones, Gregory, 2 2 , 6 2 Kamm, Frances, 201 Kant, Immanuel, iii, vii, ix, xiii, 1-41. 43-55. 67, 89, 97, 98, 108, 111. 112. 114. 127. 129. 168. 175, 201,207-214, 225 Kaufmann, Walter, 4 3 , 4 8 Kennedy, Anthony, 60 Kerrigan, Nancy, 83 Khayyam. Omar, 237

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Index o f N a m e s K i e r k e g a a r d , Soren. 4 0 , 6 4

M o r r i s , Herbert, 5 1 , 5 2 , 6 8 ,

K i n g , Martin Luther, Jr.. 7 2 , 1 7 7

8 9 . 9 0 . 9 8 . 1 0 3 . 110. 1 1 1 .

K i n s k i , Natassja, 150

114-117,215

K l i m t , Gustav. 142

71

M o t h e r Teresa, 39, 179

Kolakowski, Leszek, 37, 41 K o r s g a a r d . Christine M . , 1 2 , 1 3

N a g e l , T h o m a s , 5 1 , 57 Narayan, U m a , 72. 152. 166

Lahav, Ran, 2 2 3 . 2 2 5

N e w t o n , Sir lssac, 1, 174

Luther. Martin, 7 2 , 1 5 7

N e w t o n . W a y n e , 1, 174 N i e t z s c h e , Friedrich W i l h e l m ,

M a c K e n z i e . M a r y Margaret, 71

4 3 . 4 4 . 4 7 . 4 8 . 5 4 . 56. 6 5 . 119.

M a c k i e , John. 4 6 , 1 5 3

197.236

M a i l e r , N o r m a n . 141

N i x o n , Richard M . , 81

M a i m o n i d e s . M o s e s . 76

N o z i c k , R o b e r t , 30, 3 1 . 5 2

M a o Tse-tung, 73

Nussbaum, Martha, 83

M a p p l e t h o r p e . R o b e r t , 119-122. 126. 128. 136. 137,139

O z i c k , Cynthia, 6 9 , 2 3 5

M a r x , K a r l . 9, 5 2 , 77, 95, 230 M a x w e l l . W i l l i a m . 214

Parker, D o r o t h y , 6 1 , 129

Meiklejohn. Alexander, 125,127

Pascal, B l a i s e , 74

Mendelssohn. M o s e s , 5 , 2 9 , 3 0 ,

Pateman, C a r o l e , 159 Paul. Saint, 74

32 M e n g e l e . Doctor Joseph, 234

Peli, Pinchas, 76

M i l l . John Stuart. 3 9 , 8 5 , 9 0 , 9 5 ,

Picasso, Pablo, 125

9 8 . 100. 104. 107. 109, 112.

Plato, 5 4 , 7 1 . 7 3 - 7 5

125. 127. 181

Polanski, R o m a n , 150

M i l l e t t . K a t e . 119, 123-126. 137-139

P o p e John Paul. 6 2

M i l o , Ronald D., 206

Prejean, Sister H e l e n , 72

M i l t o n , John. 2 0 7 , 2 1 4

Presley, E l v i s , 133

M i n e l l i . L i z a . 174 Montaigne, Michel Eyquem de,

Quinn, P h i l i p . 3 1 , 4 0

Posner, Richard A . , 8 6

6 4 . 82 M o o r e . D a v i d , 7 8 , 7 9 , 8 2 , 87

Range, Peter R o s s , 139

M o o r e . G.E., 130

R a w l s , John, 1.7. 8. 13. 2 5 . 3 7 .

Moore, Michael.

54,56,68,98

103. 104. 1 1 1 . 1 1 6 . 2 1 9 , 237

4 8 . 53. 54. 175. 176. 229 R a z , Joseph, 103 104

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Rehberg, August Wilhelm, 7 14 Richards, Norvin, 203 Rideau, Wilbert, 9 Rosen, Cathryn Jo, 161 Royce, Josiah, 69 Sanders, George, 141 Saunders, Trevor J., 71 Scanlon, T . M . , 127 Scheffler, Samuel, 11,20 Schippel, Bahar, 87 Schoeman, Ferdinand, 54, 68. 103.215.219.237 Schopenhauer, Arthur. 15 Schulhofer, Stephen, 144 Scott. Dread, 119 Scruton, Roger, 107 Serrano, Andres, 119, 139 Shakespeare, William, 59,60 Shrage. Laurie, 159 Shriver, Donald W . , 63,221 Sigler. Mary. 87 Simpson, O J - , 83,84 Smith, Norman Kemp, 45 Snow, Nancy, 204, 216 Socrates, 137, 154 Stalin, Joseph, 138 Steere, Douglas V., 64 Steiner, Wendy, 121. 122 Stephen, James Fitzjames, 90,

Taylor, Donna, xi Thomas, D. M., 3 1 . 3 9 Thomson. Judith Jarvis, 34,41 Tocqueville de, Alexis, 177 Trevor, William, 71,83 Tsosie, Rebecca, 167 Twain. Mark, 139 Tyson, M i k e , 83, 84 Wagner, Richard, xiii, 108, 123 Walker. Lenore E., 160, 161 Ward. Cynthia, 70 Wasserstrom, Dick, 26, 90 Wayne. John. 215 Weinstein, James, 166 Weisel. Elie, 69,235 White, Michael, 51.74 Whitman, Walt, 55, 108 Wiesenthal, Simon, 69, 70 Wikberg, Ron, 9. Wilde. Oscar, 135 Williams. Bernard, 209 Wilson. A . N , 211,212, 214, 217.235 Winer, Larry, 149.166 Woozley. Tony, 2,202

93,93 Strawson, Peter, 228 Stump, Eleanore, 87 Sunstein, Cass R., 145, 159 Sykes, Charles J., 63 Tavuchis, Nicholas, 65

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Jeffrie G . M u r p h y

Character, Liberty, and Law K a n t i a n E s s a y s in T h e o r y a n d P r a c t i c e

Jeffrie G. Murphy's third collection of essays further pursues the topics of punishment and retribution that were explored in his two previous collections: Retribution. Justice and Therapy and Retribution Reconsidered, Murphy now explores these topics in the light of reflections on issues that are normally associated with religion: forgiveness, mercy, and repentance. He also explores the general issue of theory and practice and discusses a variety of topics in applied ethics, e.g. freedom of artistic expression, the morality of gambling, and the value of forgiveness in psychological counseling. As always, his perspective may be described as Kantian; and, indeed, this collection contains the first extended piece of Kant scholarship that he has done in years: a long essay on Kant on theory and practice.