Two Philosophers. Original painting of Gregg Caruso and Daniel Dennett by Andrea Ventura.


Just deserts

Can we be held morally responsible for our actions? Yes, says Daniel Dennett. No, says Gregg Caruso. Reader, you decide

by Daniel C Dennett & Gregg D Caruso + BIO

Two Philosophers. Original painting of Gregg Caruso and Daniel Dennett by Andrea Ventura.

Caruso: [Dan,] you have famously argued that freedom evolves and that humans, alone among the animals, have evolved minds that give us free will and moral responsibility. I, on the other hand, have argued that what we do and the way we are is ultimately the result of factors beyond our control, and that because of this we are never morally responsible for our actions, in a particular but pervasive sense – the sense that would make us truly deserving of blame and praise, punishment and reward. While these two views appear to be at odds with each other, one of the things I would like to explore in this conversation is how far apart we actually are. I suspect that we may have more in common than some think – but I could be wrong. To begin, can you explain what you mean by ‘free will’ and why you think humans alone have it?

Dennett: A key word in understanding our differences is ‘control’. [Gregg,] you say ‘the way we are is ultimately the result of factors beyond our control’ and that is true of only those unfortunates who have not been able to become autonomous agents during their childhood upbringing. There really are people, with mental disabilities, who are not able to control themselves, but normal people can manage under all but the most extreme circumstances, and this difference is both morally important and obvious, once you divorce the idea of control from the idea of causation. Your past does not control you; for it to control you, it would have to be able to monitor feedback about your behaviour and adjust its interventions – which is nonsense.

In fact, if your past is roughly normal, it contains the causal chains that turned you into an autonomous, self-controlling agent. Lucky you. You weren’t responsible for becoming an autonomous agent, but since you are one, it is entirely appropriate for the rest of us to hold you responsible for your deeds under all but the most dire circumstances. As [the American country singer] Ricky Skaggs once put it: ‘I can’t control the wind, but I can adjust the sails.’ To suppose that some further condition should be met in order for you or anyone else to be ‘truly deserving’ is to ignore or deny the manifest difference in abilities for self-control that we can observe and measure readily. In other words, the rationale or justification for excusing someone, holding them not deserving of criticism or punishment, is their deficit in this competence. We don’t try to reason with bears or babies or lunatics because they aren’t able to respond appropriately. Why do we reason with people? Why do we try to convince them of conclusions about free will or science or causation or anything else? Because we think – for good reason – that in general people are reasonable, are moved by reasons, can adjust their behaviour and goals in the light of reasons presented to them. There is something indirectly self-refuting in arguing that people are not moved by reasons! And that is the key to the kind of self-control which we are justified in treating as our threshold for true desert.

Caruso: I don’t disagree with you that there are important differences between agents who have the kind of rational control you highlight and those who lack it. Such a distinction is undeniable. A normal adult who is responsive to reasons differs in significant ways from one who is suffering from psychopathy, Alzheimer’s or severe mental illness. I have no issue, then, with acknowledging various degrees of ‘control’ or ‘autonomy’ – in fact, I think you and other compatibilists have done a great job highlighting these differences. My disagreement has more to do with the conditions required for what I call ‘basic desert’ moral responsibility. As a free-will skeptic, I maintain that the kind of control and reasons-responsiveness you point to, though important, is not enough to ground basic-desert moral responsibility – the kind of responsibility that would make us truly deserving of blame and praise, punishment and reward in a purely backward-looking sense.

Consider, for example, the various justifications one could give for punishing wrongdoers. One justification, the one that dominates our legal system, is to say that they deserve it. This retributive justification for punishment maintains that punishment of a wrongdoer is justified for the reason that he/she deserves something bad to happen to them just because they have knowingly done wrong. Such a justification is purely backward-looking. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible to consequentialist considerations that try to maximise good outcomes in the future, nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. I contend that retributive punishment is never justified since agents lack the kind of free will and basic-desert moral responsibility needed to ground it.

While we may be sensitive to reasons, and this may give us the kind of voluntary control you mention, the particular reasons that move us, along with the psychological predispositions, likes and dislikes, and other constitutive factors that make us who we are, themselves are ultimately the result of factors beyond our control. And this remains true whether those factors include determinism, indeterminism, chance, or luck. This is not to say that there are not other conceptions of responsibility that can be reconciled with determinism, chance or luck. Nor is it to deny that there may be good forward-looking reasons for maintaining certain systems of punishment and reward. For instance, free-will skeptics typically point out that the impositions of sanctions serve purposes other than punishment of the guilty: it can also be justified by its role in incapacitating, rehabilitating and deterring offenders. My question, then, is whether the kind of desert you have in mind is enough to justify retributive punishment? If not, then it becomes harder to understand what, if anything, our disagreement truly amounts to since forward-looking justifications of punishment are perfectly consistent with the denial of free will and basic-desert moral responsibility. And if you are willing to reject retributivism, as I think you might be, then I’m curious to know exactly what you mean by ‘desert’ – since it’s debatable whether talk of giving agents their just deserts makes any sense devoid of its backward-looking, retributive connotations.

Dennett: You grant that the distinction I make between people who are autonomous and those who are not (because of various limits on their abilities to control themselves) is important, but then say that it is not enough for ‘the kind of desert’ that would ‘justify retributive punishment’. I too reject retributivism. It’s a hopeless muddle, and so is any doctrine of free will that aspires to justify it. But that doesn’t mean there is no ‘backward-looking’ justification of punishment.

It’s quite straightforward. On Monday you make me a promise, which I accept in good faith, and rely on when I adjust my own activities. On Friday, I discover you have broken your promise, with no excuse (what counts as an excuse has been well-explored, so I will take that on without further notice). I blame you for this. My blaming you is of course backward-looking: ‘But you promised me!’ Autonomous people are justly held responsible for what they did because all of us depend on being able to count on them. It is for this reason that among their responsibilities is preserving their status as autonomous agents, guarding against the usurpation or manipulation of their own powers of discernment and decision. So we can blame them for being duped, for getting drunk, etc. When we blame them, we are not just diagnosing them, or categorising them; we are holding them deserving of negative consequences. If this isn’t ‘basic desert’ then so much the worse for basic desert. What is it supposed to add to this kind of desert?

The fact is – and I invite you to consider whether it is a fact – that autonomous people understand that they will be held to account and have tacitly accepted this as a condition for their maintaining their freedom in the political sense. I take this to be all the grounds we need for justifying the imposition of negative consequences (under all the usual conditions). The difference between the madman who is physically restrained and removed to quarantine for the sake of public safety, and the deserving culprit who is similarly restrained and then punished, is large, and it is a key feature of any defensible system of government. The culprit has the kind of desert that warrants punishment (but not ‘retributive’ punishment, whatever that is).

There is no incompatibility between determinism and self-control

As I have argued before, we can see this rationale in a simpler domain of human activity: sport. The penalty kicks and red cards of soccer, the penalty box of ice hockey, the ejection of players for flagrant fouls, etc, all make sense; the games they enable would not survive without them. The punishment (consider the etymology of ‘penalty’) is relatively mild because ‘it’s only a game’, but if the transgression is serious enough, large fines can be assessed, or banishment from the game, and, of course, criminal prosecution for assault or cheating also lurks in the wings. Free-will skeptics should consider if they would abolish all these rules because the players don’t have real free will. And if they would grant a special exemption for such penalties in sport, what principle would they cite for not extending the same policies to the much more important game of life?

You also say ‘the particular reasons that move us, along with the psychological predispositions, likes and dislikes, and other constitutive factors that make us who we are, themselves are ultimately the result of factors beyond our control’. So what? The point I think you are missing is that autonomy is something one grows into, and this is indeed a process that is initially entirely beyond one’s control, but as one matures, and learns, one begins to be able to control more and more of one’s activities, choices, thoughts, attitudes, etc. Yes, a great deal of luck is involved, but then a great deal of luck is involved in just being born, in being alive. We human beings are well designed to take advantage of the luck we encounter, and to overcome or deflect or undo the bad luck we encounter, to the point where we are held responsible for not taking foolish chances (for instance) that might lead to our losing control. There is no incompatibility between determinism and self-control.

Caruso: Well, I’m glad to know that you reject retributivism along with ‘any doctrine of free will that aspires to justify it’. This point of agreement is significant since it entails that major elements of the criminal justice system are unjustified. I’m curious to know, however, what exactly you would replace retributive legal punishment with, and to what extent you reject the status quo. I ask because, though you claim to reject retributivism, you go on to defend a backward-looking conception of blame and punishment grounded in the idea that offenders are ‘deserving of negative consequences’. Isn’t this just retributivism by another name?

Retributivism is the view that we ought to punish offenders because they deserve to be punished. Punishment is justified, for the retributivist, solely by the fact that those receiving it deserve it. And while punishment may deter future crime, incapacitate dangerous criminals, educate citizens, and the like, for a retributivist these are a happy surplus that punishment produces, and form no part of what makes punishment just – ie, we are justified in punishing deserving offenders even if the punishment produces none of these other surplus good effects. How does your view differ from this? Do you think the forward-looking benefits of punishment are what justified it? If so, then what role does desert play? If not, aren’t we left with the retributivist claim that backward-looking desert is sufficient to justify blame and punishment?

As for your sports example, I don’t see why this would be a problem for free-will skeptics. There are good instrumentalist and forward-looking reasons for maintaining penalties even if we reject free will and basic-desert moral responsibility. First and foremost, penalties deter players from breaking the rules. This keeps the game fair, prevents injuries, and serves all kinds of non-punitive purposes. The 24-second clock in basketball, for instance, was introduced to make the game more exciting. Without it, the game was dull, all too often played at a snail’s pace with one team opening up a lead and freezing the ball until time ran out. The only thing the trailing team could do was foul, thus games became rough, ragged, boring free-throw contests. Penalties for unnecessarily aggressive physical play, on the other hand, protect players, reduce injuries, and deter future bad behaviour. All of this can be explained without appeal to free will and just deserts.

Lastly, you say that ‘autonomy is something one grows into, and this is indeed a process that is initially entirely beyond one’s control, but as one matures, and learns, one begins to be able to control more and more of one’s activities, choices, thoughts, attitudes, etc’. You acknowledge that ‘a great deal of luck is involved’ in this, but I would go further and argue that ‘luck swallows everything’ (to borrow a phrase from [the British analytic philosopher] Galen Strawson). Consider the significant role luck plays in our lives. First, there is the initial ‘lottery of life’ or ‘luck of the draw’, over which we have no say. Whether we are born into poverty or affluence, war or peace, abusive or loving homes, is simply a matter of luck. It is also a matter of luck what natural gifts, talents, predispositions, and physical traits we are born with. Beyond this initial lottery of life, there is also the luck of what breaks one encounters during one’s period of self-formation, and what environmental influences are most salient to us.

Combined, these matters of luck determine what Thomas Nagel famously calls constitutive luck – luck in who one is and what character traits and dispositions one has. Since our genes, parents, peers and other environmental influences all contribute to making us who we are, and since we have no control over these, it seems that who we are is at least largely a matter of luck. And since how we act is partly a function of who we are, the existence of constitutive luck entails that what actions we perform depends on luck.

In Elbow Room (1984), your first book on free will, you acknowledge all this, but then go on to say that luck in initial conditions need not ‘lead to something hideously unfair’. You proceed to give the example of a footrace where some are given a head start based on when they were born (an arbitrary fact). You argue that this would be unfair if the race were a 100-yard dash but not if it’s a marathon. ‘In a marathon,’ you write, ‘such a relatively small initial advantage would count for nothing, since one can reliably expect other fortuitous breaks to have even greater effects.’ You conclude: ‘A good runner who starts at the back of the pack, if he is really good enough to deserve winning, will probably have plenty of opportunity to overcome the initial disadvantage.’ On your analogy, then, since life is more like a marathon than a sprint, ‘luck averages out in the long run’.

It’s a mistake to think that luck averages out in the long run – it does not

While this example has folksy appeal, it is demonstrably false. Luck does not average out in the long run. Those who start from a disadvantaged position of genetic abilities or early environment do not always have offsetting luck later in life. The data clearly shows that early inequalities in life often compound over time rather than average out, affecting everything from differences in health and incarceration rates to success in school and all other aspects of life. To use another sports example, in his book Outliers (2008), [the Canadian journalist] Malcolm Gladwell documents the rather strange fact that there are more players in the National Hockey League born in January, February and March than any other months. His explanation is that in Canada, where children start playing hockey at a very young age, the eligibility cutoff for age-class hockey programmes is January 1. At the ages of six and seven, being 10 or 11 months older gives one a distinct advantage over one’s competitors. Since the older players tend to do better, they end up getting more playing time, and as they progress through the ranks they are selected for better teams and more elite programmes, receive better coaching, and play more games against better competition. What begins as a small advantage, a mere matter of luck, snowballs and leads to an ever-widening gap of achievement and success.

This kind of phenomenon can be found throughout society. Studies show, for instance, that low socioeconomic status in childhood can affect everything from brain development to life expectancy, education, incarceration rates and income. The same is true for educational inequity, exposure to violence, and nutritional disparities. It’s a mistake, then, to think that luck averages out in the long run – it does not.

In addition to constitutive luck, there is also present luck – luck at or around the moment of a putatively free and morally responsible action or decision. Present luck can include an agent’s mood, what reasons happen to come to her, situational features of the environment, how aware she is of the morally significant features of her surroundings, and the like. It is a matter of present luck, for instance, whether our attention wanders at just the right/wrong moment or whether chance features of the environment prime our deliberation. I contend, following my friend [the British neuroethicist] Neil Levy, that the one-two punch of constitutive luck (luck that causes relevant properties of agents, such as their beliefs, desires and predispositions) and present luck completely undermine basic-desert moral responsibility.

The problem with constitutive luck is that an agent’s endowments (ie, traits and dispositions) result from factors beyond the agent’s control. Now, I’m sure you will say that as long as an agent takes responsibility for her endowments, dispositions and values, over time she will become morally responsible for them (and perhaps even gain some control over them). The problem with this reply, however, is that the series of actions through which agents shape and modify their endowments, dispositions and values are themselves significantly subject to luck – and, as Levy puts it: ‘We cannot undo the effects of luck with more luck’. Hence the very actions to which compatibilists point, the actions whereby agents take responsibility for their endowments, either express that endowment (when they are explained by constitutive luck) or reflect the agent’s present luck, or both. Either way, responsibility is undermined.

Dennett: The sense of ‘deserve’ that I defend is the everyday sense in which, when you win the race fair and square, you deserve the blue ribbon or gold medal; and if you wrote the novel, you deserve the royalties, and if you plagiarised it, you don’t; and if you knowingly parked in a ‘No Parking’ zone, you deserve a parking ticket; and if you refuse to pay it, you deserve some escalated penalty; and if you committed premeditated murder, you deserve to go to prison for a very long time – provided, in all cases, that you are a responsible agent, a member in the Moral Agents Club, as I have called it. Of course it is the ‘forward-looking benefits’ of the whole system of desert (praise and blame, reward and punishment) that justifies it, but it justifies the system while ruling out case-by-case consideration of the specific benefits or lack thereof accruing to any particular instance of blame or punishment – which is not true of therapy, for instance. The system specifically prohibits even raising the issue of whether, in this instance, more good than harm would result from abandoning the verdict and the penalty.

People understand that. They would be incensed by a baseball umpire who took it upon himself to call strikes balls in order to bolster the ego of the depressed batter whose dying mother was watching from the stands, and they would be incensed – and properly so, I claim – by a judge who set aside damning evidence because the defendant had suffered enough already. Jury nullification is, of course, an example of the sort of bending of the rules which we all understand, and we understand it should be reserved for very special circumstances in which the laws, as they are written, fail to treat defendants fairly. The reason is that upholding the law and respect for the law is a key ‘forward-looking’ policy. It is the maintenance of the credibility of the law and support for its provisions that governs all adjustments and limits all exemptions, for a straightforward reason: people are not angels, and will be clever (rational) and self-interested enough to explore for loopholes and ways of gaming the system. That is why the burden of proof of moral incompetence must rest on the defendant.

So is the concept I am defending any kind of desert? It is not ‘basic desert’ – a chimera fantasised by philosophers, apparently. Praise (or royalties, or your paycheck) is not just encouragement or reinforcement, and blame (or fines or incarceration) is not just deterrence or therapy. You are entitled to the praise you get for your good deeds and to the paycheck you get for your doing your job; and the criticism, the shame, the blame you get if you offend common decency or violate the laws is quite justly and properly placed at your doorstep. That is not ‘retributive’ punishment, I guess, but it hurts, and so it should.

You think my parallel with rules in sports ‘can all be explained without appeal to free will and just deserts’. I disagree. The rules of sports have exclusionary clauses for events outside the control of the players, and also rules obliging players to maintain self-control. (There are cases where a player gets excused if he ‘could not have done otherwise’, and cases where this is no excuse, in exact parallel to the moral cases. No player has ever raised the issue of being exempt from blame because of the truth of determinism!) Players must be capable of understanding the rules, and agreeing to play by them, so they are considered to be autonomous, reasoning agents. Rules are composed to make games fair, and as [the American political philosopher] John Rawls noted long ago, justice is a kind of fairness.

You claim that adopting my non-retributive defence of punishment would require that ‘major elements of the criminal justice system’ would need to be abandoned. I don’t see it. What would be jeopardised? I myself have urged all along that we need major reform of our penal policies, drastically reducing sentences, eliminating the death penalty, and instituting many programmes to help prisoners prepare for the resumption of their full rights of citizenship, but it would still be a system of punishment, not just enforced rehabilitation processes or quarantine. If a magic pill were invented that would turn any convict into a safe honest citizen, it would not obviate the need for punishment, for instance.

When we screw up, we’d rather be punished than institutionalised as morally incompetent

Strawson may have said that ‘luck swallows everything’ but, if so, he was wrong. Luck sets the stage, but even you note that – according to Nagel – ‘who we are is at least largely a matter of luck’. Largely, not all. Yes, what actions we perform depend (trivially) on luck, but not entirely on luck. Skill comes into it (and, yes, as I discussed in Elbow Room, how good you are at acquiring skill is itself largely – not entirely – a matter of luck). (See the discussion in [my 2003 book] Freedom Evolves, pp276ff, where I deal with the marathon case and your objection.) When I said that luck averages out in the long run, I was speaking of those of us who (lucky us) are competent moral agents. There are manifest differences, of course, between those of us who barely make the grade and those who are fortunate enough to find being moral quite easy, all things considered, and our policies and practices allow for this by setting a ‘ceiling effect’ (FE, p291). We also take steps to improve the moral competence of all, with practices that amount to compensatory ‘special ed’ instruction and therapy.

In effect, you are stuck on the wrong side of a sorites puzzle: if I am born without moral responsibility, utterly dependent on the luck of genes and environment, then how can adding a smidgen of competence ever lead me to be responsible? When does a pile become a heap? When does a man lose enough hair to be bald? The gradual accumulation of the grounds for being held responsible, and holding oneself responsible, has no natural moment when ‘a bell rings’ and you acquire free will, but we have devised defensible and adjustable thresholds that measure what matters. Since the benefits of political freedom in a well-governed state are so great, most people aspire to moral competency, and for good reasons. And when they screw up, they would rather be punished than institutionalised as morally incompetent. ‘Thanks, I needed that!’

Caruso: I don’t doubt that the sense of ‘desert’ you defend is the everyday sense. Keep in mind, though, that it is exactly this sense of desert that is used to justify retributivism. And nothing you have said suggests that you reject either of the two main tenets of retributivism – its backward-looking-ness (at least internal to the moral responsibility system) and its appeal to just deserts. Quite the opposite, you explicitly state that the premeditated murderer really does ‘deserve to go to prison for a very long time’, irrespective of future consequences in specific instances. I’m confused, then, why you continue to deny that you are a retributivist. It seems to me that your view is indistinguishable from retributivism. Yes, you support sentence reform and eliminating the death penalty, but that’s doesn’t make you a non-retributivist. But rather than get into a debate over your membership in the Retributivist Party, I think it would be more helpful to focus on specifics.

I disagree with you that people deserve to be praised and blamed in the everyday cases you discuss. Consider the case of Albert Einstein. He too was a free-will skeptic who believed that his scientific accomplishments were not of his own making. In a 1929 interview in The Saturday Evening Post, he said: ‘I do not believe in free will … I believe with Schopenhauer: we can do what we wish, but we can only wish what we must.’ He goes on to add: ‘My own career was undoubtedly determined, not by my own will but by various factors over which I have no control.’ He concludes by rejecting the idea that he deserves praise or credit for his scientific achievements: ‘I claim credit for nothing. Everything is determined, the beginning as well as the end, by forces over which we have no control.’

Side note: my own free-will skepticism is agnostic about determinism. I maintain that whether or not the Universe is governed by deterministic laws, Einstein’s general point remains true, since indeterminate events are no more within our control than determined ones. This is why, following [the Dutch-born moral philosopher] Derk Pereboom, I call myself a hard-incompatibilist rather than a hard-determinist.) Of course we can attribute various accomplishments to Einstein – free-will skepticism is perfectly consistent with attributability. We can also say that Einstein was extremely intelligent, gifted and creative. What we cannot say, if we are free-will skeptics, is that Einstein deserves praise (in the ‘basic desert’ sense) for his attributes and accomplishments.

For the free-will skeptic, it is never fair to treat anyone as morally responsible

I know this sounds counterintuitive, but that’s only because internal to the moral responsibility system, desert-based praise and blame, punishment and reward come naturally. The problem with appealing to our everyday practices, however, is that it takes for granted the very thing in need of justification. To paraphrase my friend and fellow skeptic [the American ethicist] Bruce Waller, if we start from the assumption of the moral responsibility system, then the denial of moral responsibility is absurd and self-defeating. But the universal denial of moral responsibility does not start from the assumption that under normal circumstances we are morally responsible, and it does not proceed from that starting point to enlarge and extend the range of excuses to cover everyone (so that everyone is profoundly flawed). That is indeed a path to absurdity. Rather, those who reject moral responsibility reject the basic system which starts from the assumption that all minimally competent persons are morally responsible. For the free-will skeptic, it is never fair to treat anyone as morally responsible, no matter how reasonable, competent, self-efficacious, strong-willed and clear-sighted that person may be. Since skeptics like myself, who globally challenge moral responsibility, do not accept the rules of that system, it is question-begging to assume our ordinary moral responsibility practices are justified without refuting the various arguments for global skepticism.

Now, in fairness, you do provide a forward-looking justification for backward-looking blame and punishment. That is, you argue that the whole moral responsibility system is justified in terms of its forward-looking benefits, but once we adopt the ‘system of desert’ we need to reject case-by-case judgments of what would produce the best outcomes. Internal to the system, you maintain, we need to adopt backward-looking, desert-based practices and policies. But I see at least two problems with this. First, it’s an open question whether the moral responsibility system has the forward-looking benefits you maintain. The notion of just deserts, for instance, is too often used to justify punitive excess in criminal justice, to encourage treating people in severe and demeaning ways, and to excuse and perpetuate social and economic inequalities. Additionally, resentment, indignation, moral anger and blame are often counterproductive on the interpersonal level when it comes to the goals of safety, moral formation and reconciliation.

Rather than argue the point further here, however, I will simply note that it remains an empirical question whether, on balance, we would be better off without a system of desert. I believe we would be. My second concern is that blame and punishment, especially legal punishment, can cause severe harm. If you want to justify the harm caused by blame and punishment on the assumption that agents are free and morally responsible, hence justly deserve to suffer for the wrongs they have done, then it would seem you need good epistemic reasons for thinking agents actually are free and morally responsible in the sense required. But I don’t see how a pragmatic or consequentialist justification of the ‘whole system of desert’ can provide such a justification. Pointing to the benefits of adopting a system of desert seems orthogonal to the core question.

Lastly, regarding luck, I go further than Nagel, and maintain that every morally significant act is either constitutively lucky, presently lucky, or both. Your antidote to luck seems to be skill or moral competency. But, as I argued earlier, the series of actions through which agents develop various skills and competencies are themselves either the result of constitutive luck (when they stem from an agent’s endowments), present luck, or both.

Dennett: You find my view ‘indistinguishable from retributivism’. This baffles me, since I have all along stressed the ‘forward-looking’ justification I have presented. There are non-retributive, non-deontological, consequentialist justifications of punishment. See, for instance, the excellent entry on punishment in the Stanford Encyclopedia of Philosophy by my late friend and [Tufts University] colleague Hugo Bedau. The ‘liberal justification’ of punishment he offers there is one with which I, along with many others, concur. As Bedau notes, after making proper hash of retributivism: ‘But the basic insights of retributivism cannot be merely brushed aside. There is a role for desert in a liberal theory of punishment, but its scope needs careful restriction.’

A key feature of that careful restriction is an appreciation of its role in preserving and enhancing respect for the law. You describe my view as holding that ‘once we adopt the “system of desert we need to reject case-by-case judgments of what would produce the best outcomes’. Not quite right; you must add ‘in the immediate circumstances’. The point is that a policy of case-by-case judgments of what would produce the ‘best outcome’ considered locally would threaten both the effective administration of justice (by inviting special pleading on behalf of either the perpetrator or the injured party or society as a whole) and respect for the law. That is the point of my examples of the biased umpire and the judge who suppresses evidence. Accepting bad outcomes in specific cases is only justified by the long-run protection of respect for the law, and whenever evidence mounts for adjustments to general policies, laws can be revised, a demonstrably better policy than ‘taking the law into your own hands’.

Bedau usefully lists four requirements for any justification of punishment:

Accordingly, to justify punishment we must specify, first, what our goals are in establishing (or perpetuating) the practice itself. Second, we must show that when we punish we actually achieve these goals. Third, we must show that we cannot achieve these goals unless we punish (and punish in certain ways and not in others) and that we cannot achieve them with comparable or superior efficiency and fairness by nonpunitive interventions. Fourth, we must show that striving to achieve these goals by way of the imposition of deprivations is itself justified.

You say ‘it’s an open question whether the moral responsibility system has the forward-looking benefits you maintain’ (Bedau’s point two) and ‘it remains an empirical question whether, on balance, we would be better off without a system of desert. I believe we would be’ (Bedau’s point three). Indeed, these are open empirical questions, but not very open! I cannot see how you can think we would be better off without a system of desert – unless you are granting me my kind of desert and merely saying we’d be better off without some as yet undescribed sort of ‘basic’ desert (and I am quite sure we are better off without that). For without my kind of desert, no one would deserve to receive the prize they competed for in good faith and won, no one would deserve to be blamed for breaking solemn promises without excuse, no one would deserve to have their driver’s licence revoked for drunk-driving, no one would deserve punishment for lying under oath, and so forth. There would be no rights, no recourse to authority to protect against fraud, theft, rape, murder. In short, no morality.

I was astonished by your sentence: ‘For the free-will skeptic, it is never fair to treat anyone as morally responsible, no matter how reasonable, competent, self-efficacious, strong-willed and clear-sighted that person may be.’ Do you really want to return humanity to [the 17th-century English philosopher Thomas] Hobbes’s state of nature where life is nasty, brutish and short? If you have some other vision of how a stable, secure and just state can thrive without appeal to moral responsibility, you owe us the details. Waller, in The Injustice of Punishment (2018), makes a brave attempt to do that, but even he concedes that you cannot have such a society without punishment, as announced by the title of his Chapter 2: ‘The Unjust Necessity of Punishment’. Well, if punishment is a necessity, it isn’t a logical or physical necessity; it’s a necessity for a viable state in which as much justice as practically possible might be achieved. In what way would such a necessity be ‘unjust’? In the same way, it seems to me, that it is ‘unfair’ that everyone can’t be above average – in beauty, strength, intelligence, whatever. Life is tough, but not ipso facto unjust, and we can use our reason to make life, and its institutions, more and more just, more and more fair, a better world for all.

Caruso: Thank you for clearing some things up for me. You say that my confusion over whether you reject retributivism ‘baffles’ you, since you ‘have all along stressed the “forward-looking” justification [you] have presented’. I guess my confusion stemmed from the fact that earlier in the conversation you said that rejecting retributivism ‘doesn’t mean there is no “backward-looking” justification of punishment’. You then went on to defend what looked to be a backward-looking justification of blame and punishment grounded in desert. If, instead, you adopt a forward-looking consequentialist account of punishment, then I’m happy to retract my earlier charge that you are a retributivist in all but name. That said, by adopting a forward-looking consequentialist justification, your view comes much closer to that of the skeptic. The main difference, it seems, is that you want to retain the language of desert while the skeptic wants to consign it to the flames – along with libertarian free will, retributivism, and the idea of being self-made men and women (all of which you reject as well).

You go on to say: ‘I cannot see how you can think we would be better off without a system of desert.’ Well, for me, the notion of basic desert, which has been my target all along, is a pernicious one that does more harm than good. If that is not the sense of desert you have in mind, then so be it. But my claim is that basic-desert moral responsibility, and with it the notion of just deserts, is too often used to justify punitive excess in criminal justice, to encourage treating people in severe and demeaning ways, and to excuse and perpetuate social and economic inequalities. Consider, for example, punitiveness. Researchers have found that stronger belief in free will is correlated with increased punitiveness. They also found that weakening one’s belief in free will makes them less retributive in their attitudes about punishment (for details, see here.)

These empirical findings concern me.

Who we are and what we do is ultimately the result of factors beyond our control

There are additional concerns as well. As I argue in my Public Health and Safety (2017), the social determinants of criminal behaviour are broadly similar to the social determinants of health. In that work, and elsewhere, I advocate adopting a broad public-health approach for identifying and taking action on these shared social determinants. I focus on how social inequities and systemic injustices affect health outcomes and criminal behaviour, how poverty affects brain development, how offenders often have pre-existing medical conditions (especially mental-health issues), how homelessness and education affects health and safety outcomes, how environmental health is important to both public health and safety, how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, and how a public-health approach can be successfully applied within the criminal justice system. I argue that, just as it is important to identify and take action on the social determinants of health if we want to improve health outcomes, it is equally important to identify and address the social determinants of criminal behaviour. My fear is that the system of desert you want to preserve leads us to myopically focus on individual responsibility and ultimately prevents us from addressing the systemic causes of criminal behaviour.

Consider, for example, the crazed reaction to [the then US president Barack] Obama’s claim that, ‘if you’ve got a [successful] business, you didn’t build that’ alone. The Republicans were so incensed by this claim that they dedicated the second day of the 2012 Republican National Convention to the theme ‘We Built it!’ Obama’s point, though, was simple, innocuous, and factually correct. To quote him directly: ‘If you’ve been successful, you didn’t get there on your own.’ So, what’s so threatening about this? The answer, I believe, lies in the notion of just deserts. The system of desert keeps alive the belief that if you end up in poverty or prison, this is ‘just’ because you deserve it. Likewise, if you end up succeeding in life, you and you alone are responsible for that success. This way of thinking keeps us locked in the system of blame and shame, and prevents us from addressing the systemic causes of poverty, wealth-inequality, racism, sexism, educational inequity and the like. My suggestion is that we move beyond this, and acknowledge that the lottery of life is not always fair, that luck does not average out in the long run, and that who we are and what we do is ultimately the result of factors beyond our control.

Finally, I do not agree that rejecting free will and basic-desert moral responsibility will ‘return humanity to Hobbes’s state of nature where life is nasty, brutish and short’. You write: ‘If you have some other vision of how a stable, secure and just state can thrive without appeal to moral responsibility, you owe us the details.’ First, let me reiterate that the kind of moral responsibility I reject is basic-desert moral responsibility. Of course, there are other conceptions of moral responsibility that are perfectly consistent with free-will skepticism – such as Waller’s notion of take-charge responsibility, the attributability responsibility I referenced in the Einstein example, and Pereboom’s forward-looking notion of responsibility that focuses on three nondesert-invoking desiderata: future protection, future reconciliation, and future moral formation. Second, I agree that I owe you and others an account of how to maintain a stable, secure and just society without basic-desert moral responsibility. Fortunately, my good friend Derk Pereboom has already provided most of the details for such an account in his two books Living Without Free Will (2001) and Free Will, Agency, and Meaning in Life (2014). And I have further developed a detailed account of how to address criminal behaviour without basic-desert moral responsibility – it’s called the public health-quarantine model. While I wish we could debate the merits of it here, it unfortunately looks like we have run out of time. The details of my account, however, are readily available for anyone who is interested (see here, here, and here).