"no harm, no foul"
Tuesday, December 02, 2003
ARGUING AGAINST THE DEATH PENALTY: Steve Garvey, in a paper recently posted on ssrn.com, argues in favor of the proposition that it was permissible that Gov. George Ryan commute the sentences of all those on death row in the state of Illinois – not that he had to do it, but only that it was with his rights to do so, and not just his legal rights, but his moral rights. It was morally legitimate that he show mercy, though not morally mandatory. The piece is clear, careful. Sometimes it seems that thoughtful philosophy papers are hard to come by in law reviews, but Garvey’s pieces are always of very high quality.

Before commenting on Garvey’s substantive argument, I want to make a point about his strategy. He argues against the death penalty not directly, but by saying that it is incompatible with his favored theory of punishment, in his case punishment as atonement. The idea is that the death penalty doesn’t fit as an appropriate punishment given the aims of punishment. Sometimes retributivists argue this way as well – that the goals of retributive punishment don’t fit with death as a punishment. This is a harder sell than with punishment as atonement, but I’ve seen it offered as a possibility.

I think this strategy is wrong. My sense is that we should argue against the death penalty directly, by saying that it is inhumane, uncivilized, and a form of torture. This means appealing to principles outside principles of punishment, strictly speaking. And I think this is fine. Indeed, thinking about the example of torture, we don’t condemn it by saying it doesn’t fulfill the goals of atonement, retribution, deterrence, etc. That is, we don’t argue against torture by saying it doesn’t fit with our favored theory of punishment. We say torture is wrong because it doesn’t respect the dignity of human beings, etc. It seems to me that we should say the same thing, or some similar thing, about the death penalty.

In any event, Garvey’s argument is that the death penalty cuts off the possibility of atonement, and therefore the commutation of the sentences of those on death row is justified because it keeps open the possibility of atonement. Thus Garvey says, “Extending mercy and remitting an offender’s death sentence reflects a choice to preserve the possibility of reconciliation between victim and offender. In other words, extending mercy to death-sentenced offenders can be justified .. as a way to preserve the chance, however remote it may seem, that offender and victim might some day be reconciled.” (33).

Garvey here wants to justify not just the commutation of particular sentences, but a blanket commutation. But his argument seems to quick to entitle him to this conclusion. I think he needs to take more seriously the possibilities that (a) some crimes may be so bad that only the death of the offender can lead to atonement, and (b) atonement in some cases may be impossible, and not just a remote possibility. For Garvey to get the conclusion that a blanket commutation is permissible, he needs not only to show that these possibilities are remote, he needs to exclude them altogether.

Yet I am not convinced he does so. I don’t see, for instance, why death can’t be some form of real reconciliation between victim and offender (and not merely a “fleeting reconciliation” or one that is not secular, as Garvey argues), nor is it clear to me that there are no crimes which conclusively shut off the offender from the moral community, making reconciliation with him impossible. If either of these two things is possible, then a blanket commutation is not justified, only a commutation of those who are still within the bounds of moral community, and whose death is not required as a means of atonement. And note it is within the theory of atonement that such things might be necessary – perhaps another reason to prefer arguing against the death penalty directly, and not via a theory of punishment.

Monday, December 01, 2003
AGAINST VIRTUE: Larry Solum over at the legal theory blog has another “legal theory lexicon” entry – this time on virtue ethics. Solum repeatedly emphasizes that his entries are “quick and dirty” and “rough and ready.” Still, I think Solum gives us enough of a sketch of virtue ethics to raise some serious questions about it: questions I’m not sure a less rough and ready or quick and dirty sketch might answer, though I may be wrong.

First, the way Solum presents virtue ethics it seems excessively formal. For example, he writes that a virtue-centered theory of judging would “contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision.” I’m not exactly sure what type of guidance this is supposed to give: how, for example, does it differ from saying that a virtuous judge makes good decisions? Don’t we need to know a little more about what the good is?

A similarly excessive formalism seems to infect the definition Hursthouse gives as well. She writes that an action is right if and only if it is one that a “virtuous moral agent would characteristically perform under the circumstances.” OK: so a virtuous agent acts virtuously. But what does that mean? And how (by what criteria) are we supposed to be able to identify the virtuous agent? This reminds me of the time when a philosopher professor of mine in college, a dyed in the wool Aristotelian, spoke of the virtuous act being the one the phronimos (the practically wise person) would make. I asked him, “But how do we know who the phronimos is?” And he shot back, “c’mon, you know.” Is there any better answer we can give to this question?

Let me try to put my first worry in a little less rhetorical form. My worry is that any definition of what a virtuous act consists in might be theory-dependent – that is dependent on a prior understanding of what is good, around which we define what the virtuous agent is. And this seems to get us right back into the think of traditional moral theory. After all, what stops a law and economics theorist from defining the virtuous judge in terms of what would maximize utility (I’m simplifying here)? Couldn’t the Kantian virtuous judge just be the one who judges according to the moral law? So again, the worry is that virtue talk, unless spelled out further, is too formal: and that leaves us to supply the content, and that means going back to substantive moral theorizing. Even worse, virtue talk has seemed an unnecessary detour on the way. If we are just going to define the virtues according to our favorite moral theory anyway, why not just start by debating the merits of that theory?

Of course, we could take the virtue ethicist’s point to be more of a deflationary one. This gets me to my second question. Solum writes that “contemporary virtue ethics is distinctive … because it denies something that both deontology and utilitarianism seem to affirm – that there is a decision procedure for ethics.” The idea here is that utilitarianism and deontology deny the wrong of judgment in ethical theorizing, and that paint a distorted picture of the moral life as being solely about rules.

By now, though, this is far too crude of a dismissal of Kantianism and utilitarianism – especially given Barbara Herman’s sensitive and probing work on Kant and moral judgment. More broadly, there seems to be no barrier to utilitarians and Kantians admitting a role to be played by judgment, i.e., that there will be hard cases which are underdetermined by the moral rules. So the good moral agent will have to use his judgment to determine what the best application of the moral rules is in this case. Life is complex: nobody has to deny that.

At the same time, it would be wrong to deny that there are any moral rules at all, which is what an extreme version of the “no decision procedure” point might claim. Solum may not be making this point, and if he’s not, that’s good. We would go wrong if we denied that there were any moral rules, just as we would go wrong if we said that correctly applying those rules was never a matter of good judgment. The point here is that this is a matter of both/and, not either/or – we need both rules and judgment to get an accurate picture of the moral life. Moreover, this strikes me as a point any sensible Kantian or utilitarian would and should concede.

Finally, there is what Solum writes about “virtue politics,” which “might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence.” My question here doesn’t have to do with Solum’s definition of virtue politics, or whether it makes sense. My question is whether is jibes with Solum’s other big interest, i.e., public reason. Could a person who favored virtue politics be a political liberal? Ideas of human excellence, or so goes the line, are contested, and reasonably so – the state should presind from endorsing any one of them, in favor of promoting a shared “core morality.” At this level, it seems to me a virtue politics can’t be politically liberal. I wonder, further, whether a politically liberal society could endorse certain judges or politicians on the basis of their supposed virtue. This strikes me as a much more subtle and interesting question (of course, we would need a more detailed spelling out of what the virtues of particular offices are; my sense is that Solum has done this elsewhere, though I haven’t had the chance to read his work on the subject).

Virtue ethicists seem to come in two main flavors. There are those who do virtue theory, and talk about the kind of things Solum canvasses in his post. Most of the work here gets done at the abstract, meta-level. But there are also those who talk about particular virtues, about courage, honesty, fidelity, etc., and even occasionally about certain vices (contempt). From my experience, the latter group is the more interesting and ultimately more important group of virtue theorists – they do a good job of what virtue theorists say we need to do but don’t seem to do themselves: explore the rich texture of our moral lives.

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