Begin with the principle:
- It is impermissible to harm others (other things being equal).
I intend ‘harm’ in a very broad sense. Certainly you harm someone if you physically injure them , but also if, without injuring them, you prevent them from doing something they would have preferred to do, or coerce them to choices they would rather not make. You may also think you do someone a harm if you wound their pride or disappoint them; if so , I won’t quarrel with you here: count injured feelings in as well. Some readers may– for sophisticated philosophical reasons– feel uncomfortable with the word ‘harm’. If you find (1) more obviously true if you replace ‘harm’ with ‘make unhappy’ or ‘diminish the utility of’ or ‘interfere with’ or ‘act contrary to the long term rationally revealed interests of’ … feel free make the substitution. 1 You are reading me right if you construe (1) as an obvious truism.
Assuming we agree about (1), we turn to the question of what these other things are that that must be equal? In what circumstances is it permissible to harm another?
Self-defense is an obvious example. Other things being equal, if someone is physically attacking you, you are entitled to do them harm. How much harm is an interesting question. It is not a matter of strict proportionality. If the attacker just wants to cut off your arm to add to his collection you are not constrained to do no worse than amputate his. But if all he aims to do is push ahead of you in a ticket queue, disemboweling him might be excessive. Roughly speaking, it seems that if you are the victim of an attack, you are permitted to do your attacker only as much harm as is required to thwart the attack and, perhaps, a bit more to discourage its being renewed.
Details aside, “The Right of Self Defense” obviously means nothing if it does not include permission to do appropriate violence to your attacker.
My next question is this: does it mean anything more? Is there something more you must have — something beyond the moral permission to forcefully defend yourself — before you enjoy the right of self-defense in full?
I think it is clear that there is not. And I take this to show that having the right of self-defense is constituted by– is nothing but– the moral permissibility, ceteris paribus, of doing (appropriate) harm to those who attack you.
The view I am going to call “Retributive Ethics” is the doctrine that all rights are like this. It holds that all moral rights are merely provisos in the general prohibition against harming others and that what is morally impermissible is always and only the infliction of harms without right.
Retributivism is a reductive claim. If you like your philosophical theses to be framed as analyses2, you may take it as proposing a certain form of analysis of “morally impermissible”, viz. :
RE) It is morally impermissible for x to do A =df x’s doing A harms someone else & ~F1 & ~F2 & …~Fn.
RE) x has the right to do A =df x’s doing A does not harm anyone else or F1 or F2 or… Fn.
Where the “F”s name those factors that must be equal for harmings to be impermissible: factors like self-defense. Clearly, for the analysis to succeed the list of “F’s” — the enumerated list of moral rights– must be finite. And, on pain of circularity, the Retributivist is committed to saying that the relevant senses of “harm” and the relevant “F”s can be spelt out in non-moral terms3.
If the Retributivist holds, as I do hold, that these can be spelt out in naturalistic terms– e.g. in terms of what causes pain or who hit who first or … — then Retributivism promises a naturalistic account of morality.
In this, Retributivism is like Utilitarianism but whereas the Utilitarian views all moral discourse as reducible to talk about aggregate human happiness, the retributivist treats moral talk as entirely about the varieties and occasions of interpersonal violence.
Because they are both reductive claims, Retributivism like Utilitarianism promises an all-encompassing and exhaustive account of the differences between right and wrong. Clearly this is too big a promise to keep in one blog post, but we can here advance the Retributivist program a few more steps.
What are some of the other Fs?
Well, another circumstance which renders it permissible to harm another is if that person has given their permission to be harmed. Boxers do this when they step into the ring. Within the limits of the rules and for the duration of the match each gives the other permission to inflict as much harm as he can. If the fight is a mismatch and the stronger fighter has nothing to fear from the weaker, the strong fighter cannot claim to be acting in self-defense but he has the right to hurt the lesser fighter to the extent that his abilities allow; the lesser fighter has given him that right.
The example is extreme but illustrates that x can give y permission to harm x. That principle has important consequences.
Suppose I need $100 dollars. I don’t have it, but you do. I make a prediction. I tell you.
“If you give me $100 dollars today, I will give you $110 next week.”
Taken as a simple prediction of my future behavior my claim may seem very unlikely. You’ve done favors for me in the past and I’ve never done anything nice for you. And I am notoriously stingy. But I know you won’t give me the money unless I can convince you that this prediction is true. So what can I say to get you to believe me?
I can say this.
“If you give me $100 dollars today then I give you permission to do (an appropriate kind and amount of) harm to me next week if I do not then give you $110.”
Now I have not just made a prediction that I will pay you. I have made you a promise.
The Retributivist analysis of promising is :
x promises y to do a =df x gives y permission to do appropriate harm to x if x fails to do A.
I cannot compare the Retributive analysis of promises against other analysis because, so far as I know, there are no other philosophical analyses of what it is to make a promise. There are accounts of why promises should be kept which take the form of explanations of why the keeping of them is utility maximizing or rational or virtuous. There are fanciful stories about why we all might have contracted (which is to say, promised) in general to keep our particular promises. And there are careful discussions of how promises differ from other sorts of vouchings safe. But there is no other account, that I am aware of, of what a promise is.
On the Retributive view, a promise just is a conditional permission to inflict certain sorts of harm and nothing more.
There are two ways one might argue against this position.
The first would be to say that no permissions to harm are granted by promising. That would be to claim that when x promises y to do A and x breaks that promise, that does not make it permissible for y to do x any harm that would not have been permissible had x kept, or not made, the promise.
To see how implausible this claim is return to our example. Suppose that you give me the $100 and I say to you:
“I promise to give you $110 next week.”
A week has passed. You arrive at my house to collect your $110 dollars. I am not at home but on my door step you find two things.
The first is a note from me addressed to you that makes it clear that I have no intention of paying you back any amount of money and thanking you for being such a sucker.
The second thing you find is my wallet. You can see that it must have fallen out when I was putting the note on the door step. You cannot help but notice that the wallet contains $110 dollars.
Clearly, if you had never lent me any money it would be morally impermissible for you to take my $110. The position we are currently considering is one which says that it still is. It is the position that the fact that I broke my promise to you makes no difference ; that it is still as morally impermissible for you do anything to harm me in any way that would have been impermissible if the promise had been kept or never made at all.
This does not seem to me to be correct. It seems to me that it would be permissible for you to take the money. It is owed you. I owe it to you. I have an obligation to give you that money whether I like it or not. And even if I am greatly harmed by the loss of that $110, I cannot claim to be wronged by your taking it. I gave up my rights not to be harmed by you at least in this manner and to this extent, when I promised to pay you the money.
If you agree with this then you concede that x’s promising y to do A entails that x grants permission for y to harm x in certain ways if x does not do A.
Now if you still wish to resist the Retributivist analysis you must argue that the entailment does not run in the other direction. That is you must argue that even if x gives y permission to harm him if x does not do A, there is still a difference — a moral difference– between this situation and the one in which x promises y to do A.
But what could that be?
Return to our original scenario. You have just agreed that there are some kinds of harm that you are entitled to do to me given that I made a promise. Let us not worry just now about what sorts of harms those are. Let us trust your intuitions and call those the “appropriate harms”. I take your $100 and give you a conditional permission:
“I give you permission to do me appropriate harms next week if I do not then give you $110.”
Now there are some who will boringly insist that this cannot be a promise because it does not use the word ‘promise’. Very well. My question is this: given that (on your understanding) giving the promise would have entailed granting just this conditional permission, what additional moral difference would it make — what extra moral oomph would be added — by my incanting the words “… and I also promise to give you the $110″?
I can’t think of anything, but I cannot prove a negative. I leave it as a challenge to anyone who rejects the Retributive account to say what that extra oomph is. Then, at least, there will be two philosophical theories of promising.
I hear the impatient reader’s protest,
“You owe us an account of ‘appropriate harm’! In this particular case, perhaps you may take that money from the step. But we aren’t always that lucky. What else may you do?”
A good question. I have an answer but before I give it, three points.
The first is that it is a question that anyone — be they Retributivist or not — must be prepared to answer if they concede that it is permissible to harm the promisor in ways that arise from his having made a promise. And as we have seen everyone should concede that.
The second point is that, for the analysis to work, there must be a minimum level of violence permitted else no promise has been made: You give me your life savings. In return, I tell you that, if I don’t pay you back, you may call me a rude name. In that case, I have done something less than promise to return your money.
The third point is that someone might give a different answer than mine– and many will think I am (wildly) wrong about what harms, at maximum, are appropriate — and be a Retributivist nevertheless.
That said, here is my answer: If x is able to fulfill his promise to y, then y is permitted to do as much harm to y (but no more) as is necessary to force x to do so.
So now the story is this. I did not drop my wallet. I have the $110 dollars but I have no intention of paying you back. What may you do?
May you sneak into my house and take the money?
May you push me down and grab my wallet?
May you hire a mercenary to wring it out of me?
If I’ve hidden the money away, is it permissible for you to water-board me until I tell you where?
Is it permissible for you to shoot me and pry the money from my cold dead hand?
My answer in every case is “yes”, provided that it is, in its circumstance, the least force necessary for you to recover your debt.
Even with that limitation in place, enforcing your promise could turn out to an ugly business. Retributive Ethics is not for sissies. But remember that I contend that these measures are permitted only because I gave you permission to use whatever force necessary to get your money.
Why would I have given you permission, even conditionally, to hurt me so badly ? Because anything less would have left you with no reason take me at my word. Anything less amounts to, “I will repay you unless I really don’t want to.” and that is no promise at all. Remember too that the permissions I gave you were wholly conditional on something which, in this scenario, is wholly within my control. I have the money. I can make all the unpleasantness go away just by paying what I owe.
Then too you don’t have to insist on what was promised. It is on the cards for me to offer you another deal. If I don’t want to give you the money, I can offer some other good or service instead. (You can have my watch! How about a back rub?) What I am offering you are goods or services in return for your relinquishing your right to harm me. If you accept my offer then we may all be happy, but I will still have broken my promise. Ex Hypothesi, what was promised was the money, not the money or something else.
Still, the idea that anything might legitimate such extreme measures may seem farfetched. Why so?
There are two reasons, I think. The first is the less interesting but needs to be noted: in the story as told the stakes are too small for it to be plausibly worth your while to take such strenuous measures. If you imagine the debt small enough, the returns on shooting me may not be worth the price of a bullet. Then too there are psychic costs: you may find even the thought of such violence distasteful. Or then again you may be weak while I am strong and well-armed. (Though, if we let the debt be your life savings, or the vaccine you need to save your child’s life and equip you with superior fire power, you may find yourself less squeamish.)
In any event, such considerations, while prudentially reasonable, do not affect the moral point. It may not be worth your while to torture me to submission and you may not have the stomach for it, but that does not show that you are not entitled to do so if that is the only way you could overcome my stubborn unwillingness to keep my word.
The second reason all this will sound farfetched, and one that does affect the moral point, is in the matter of what means will be available to you, in the real world, to recoup your loss. You may, remember, inflict only the least harm necessary to make me keep my word. We are not in a state of nature. In the real world, the law would punish you for attempting to collect your debt by any of these violent means no matter how high the stakes even while it recognized the legitimacy of your claim. At the same time, and not coincidently, the law would also provide you with other means to get what you are owed: A court could order my wages be garnisheed, my house foreclosed, my car repossessed… All of these are harms to me but ones so gentle and genteel they don’t count as violence at all. And both you and I — the promissee and the promise breaker– have reason to be grateful that the state has this monopoly on force. You can be grateful that the state can spare you the burdens and risk of committing real violence. Wading through the courts is better than wading through blood. And even when the courts find against me, I too can be grateful that it is not up to you– but to a disinterested third party– to decide what harms I have let myself in for.
In this we can see the beginnings of a Retributivist account of the origins and legitimacy of the state and how it will differ from what has gone before. Political theorists from Hobbes to Nozick have sought to justify the state as a way for citizens to protect themselves against the immoral violence of their neighbors. The retributivist can agree but also argue for the state as a device to moderate the morally permissible violence that can stem from bargains struck in a state of nature.
Nor does the Retributivist have to construct fantasies wherein thugs– because under amnesiac spells– forget that they are thugs and unwittingly give the state permission to use violence against thugs like themselves. In the Retributivist story, you have permission to enforce the promise against me, thug that I am, because I have, in full knowledge and with good reason, given it to you and you may, without my further permission, enlist the help of others to exercise that right.
Retributive Political philosophy is a topic for another time. Let us bring things back on track by remembering that all of the forgoing assumes that my promise can be kept.
What if I have made you a promise that I cannot keep?
Suppose that what I promised you wasn’t cash but a pony, and not just any fungible pony but a special, irreplaceable horse; the last in a long line of Derby winners. I was sincere in my promise, but now the wretched animal has died. What am I to do? More to the present point, what may you do to me?
After what has gone before you may dread to hear my answer. Be not afraid: I think that it is possible that, in this event, there is nothing you are now permitted to do to me.
My promise gave you conditional permission to harm me only to the extent required to get me to give you that animal. But given that is now impossible, no amount of force or violence is appropriate. Any harm you might inflict on me now would be gratuitous . You have no right to harm people simply for breaking promises, if the promises can’t be kept.
So you may not, in this case, harm me because of my broken promise. That does not mean I’m relieved of my debt. If the pony were now miraculously revived and you suddenly conceived a desire to have it, you would be entitled use all necessary force to take it from me. My permission to do so still stands and so my promise still stands, because the promise is that permission.
And I am not yet off the hook. You may still have warrant to harm me depending on whether, in breaking my promise, I have wronged you in some way.
Note that, for all we have said so far, it is possible for someone to break a promise and yet have done nothing wrong. Remember that for the Retributivist the only way to do wrong is to harm another and it is possible to break a promise without harming anyone. 4
Suppose you did not want the pony. You don’t like animals, disapprove of horse racing and would be just as happy if I kept the damn thing. You would have given me the $100 anyway, you just accepted my promise to keep from hurting my feelings.
In that case, I don’t harm you by breaking my promise, whether or not the pony is alive. My breaking of the promise is permissible. I have done no wrong.
Very well, but suppose you did want it. You had made plans assuming I would keep my word. You booked stable space, paid race fees, hired jockeys, sold shares, took bets… you were counting on it.
Now my failure to produce the pony has done you a harm. Don’t I now owe you something– something other than the now notional pony?
Of course. You have a right to some sort of compensation.
Note though that you are owed compensation not because I broke my promise but because I caused you harm by leading you– by promising– to believe something false: viz. that you were going to get a pony. If I had deliberately led you to this false belief by some other means– other than promising– then you would have exactly the same rights to precisely the same compensation whatever that is. Saying what you are owed (and how much harm you may still do to me) thus belongs not to the analysis of promising but to the more general theory of compensation for harms done.
Other things being equal, you acquire a right to compensation whenever and however another harms you. For the Retributivist a right is always a permission to harm. So x’s acquiring a right to compensation from y, because y has harmed x, is a matter of its becoming permissible for x to do harm to y.
How much harm? As much , I would say, as may be required to force y to perform a compensating act.
What should that act be?
How we should calculate what compensation is owed is a complicated question. Answering it would be to give, in full, the Retributivist understanding of ‘Justice’.
That is a project for another day.
1 With one caveat. See below.
2 I myself do not like to talk about “analysis”. I don’t believe in it . I prefer to think of projects like Retributivism and Utilitarianism as attempts to identify the referents of moral words. But for present purposes we may keep all these worms in the can.
3 This being the caveat I mentioned on understandings of ‘harm’.
4 Which is why the Retributivist gives short shrift to the old chestnut, “Is it morally wrong to break promises confidentially given to promissees now dead?” Of course not, though it might reveal bad character.
Thanks to Kadri Vihvelin and David Gordon for helpful comments.