2 David Hume, Inquiry Concerning the Principles of Morals, Section III, ‘Of Justice,’ Part I, paragraph 10

3 Quinn, Warren ‘The Right to Threaten and the Right to Punish,’ Philosophy & Public Affairs 14 (1985) 327Google Scholar

4 The Philosophy of Law, co-authored with Jules Coleman (Totowa, NJ: Rowman & Allanheld 1984), emphasis added, 113

5 Quinn,328

6 Not everyone — e.g., utilitarian proponents of deterrence—will accept this. I shall simply assume, for the standard reasons, that such theories do not give romplete accounts of punishment.

7 The reason for formulating the first condition in terms of punishment being not unjust, rather than just, is that I shall understand these expressions as contraries, not as contradictories. My reasons for this will become clear when I explain the theoretical account of the moral status of wrongdoers that will be the basis for my argument.

8 This fairly standard characterization of punishment is provisional, as it will turn out to be incompatible with the account I develop. I am indebted to Alex Rosenberg for drawing my attention to this. I shall not, however, pursue these issues further in this essay.

9 See Foot, Philippa ‘Virtues and Vices,’ in Virtues and Vices (Berkeley & Los Angeles: University of California Press 1978), 1-18.Google Scholar For scepticism about standard ways of drawing the distinction, see Buchanan, Allen ‘Justice and Charity,’ Ethics 97 (1987) 558-75CrossRefGoogle Scholar.

10 More frequently benevolence may tempt us to violate the constraints of justice protecting one individual for the good of another. We may, however, decide not to count an act for another’s well-being as benevolent if it involves treating a third party unjustly. See Foot, ‘Utilitarianism and the Virtues,’ Mind 94 (1985) 205-6.

11 A Theory of Justice (Cambridge, MA: Harvard University Press 1971), 16; see also 172. It is clear from his most recent writings, if not from some of the elements of A Theory of Justice, that Rawls does not really endorse the view of moral theory expressed by his remark. The same is true of Harsanyi. David Gauthier’s theory best fits Rawls’s remark; see his Morals by Agreement (Oxford : Clarendon Press 1986).

12 Foot, ‘Moral Belief,’ reprinted in Virtues and Vices, 125. Foot no longer accepts the suggestion just quoted, as she now rejects the assumption make by contractarians and others that justice requires of us only that which we have reason to accept. See especially her ‘Introduction’ to Virtues and Vices, xiii.

13 Hypothetical choice and agreement here has only a heuristic value. That is, it is a discovery procedure. It is not to be confused with commitment, promising, and the like, which is one of the reasons why the ‘social contract’ label may mislead. This point will be important later when I address some of the criticisms made of forfeiture accounts of punishment.

14 For Gauthier’s controversial version of this reply, see Gauthier, Chapter 6. See also Robins, Michael Promising, Intending, and Moral Autonomy (Cambridge: Cambridge University Press 1984)Google Scholar; McClennen, Edward F. ‘Prisoner’s Dilemma and Resolute Choice,’ in Campbell, Richmond and Sowden, Lanning eds., Paradoxes of Rationality and Cooperation (Vancouver: University of British Columbia Press 1985), 94-104,Google Scholar as well as Rationality and Dynamic Choice (Cambridge: Cambridge University Press 1990); and Bratrnan, Michael Intention, Plans, and Practical Reason (Cambridge, MA: Harvard University Press 1987).Google Scholar

15 See Rawls, 126ff. The classical accounts are to be found in Hobbes and Hume. See also Hart, H. L.A. The Concept of Law (Oxford: Clarendon Press 1961), 189-95.Google Scholar

16 The notion of moral standing I borrow and adapt from Sumner, L.W. Abortion and Moral Theory (Princeton: Princeton University Press 1981CrossRefGoogle Scholar), 26ff.

17 The distinction here between benevolence that is owed others and benevolence which is not should not be confused with the distinction between self-regarding and other-regarding virtues. Benevolence, like justice, is an other-regarding virtue. It is simply that sometimes it may be owed others, other times not.

18 For typically only things that are capable of being benefited or harmed in the ways that humans are— or more controversially, non-human animals— can have moral rights or are owed considerations of justice. Since such things (e.g., humans) are sentient, they are also the sort of thing that can be the proper objects of considerations of benevolence. Thus, typically beings that are owed considerations of justice will also be owed considerations of benevolence, and will thereby have full moral standing. Perhaps this is not always true. We may owe considerations of justice to Scrooge, but not considerations of benevolence. This seems to have been Shakespeare’s view of Shylock.

19 It should not be thought that mere indirect moral objects lack moral value. Moral standing may be understood as a species of moral value; the set of objects with moral value typically will be larger than that of objects with moral standing. Thus the Rocky Mountains or Chartres, while lacking moral standing, have moral value. Note that the moral value that such objects have, while not ‘inherent,’ can be ‘intrinsic’ in the sense of non-instrumental or ultimate value. The confusion between different senses of ‘intrinsic value’ (e.g., inherent, non-instrumental), as well as between moral value and moral standing, as I have characterized these notions, is prevalent in ethics, especially in discussions of environmental issues.

20 A complete contractarian account of moral standing would have to discuss a second way in which something can acquire it, namely by being the object of the preferences of someone who has moral standing. For instance, Daphne may care sufficiently for Emil, who is not an agent, that she will not cooperate with Frederica unless the latter accords moral standing to Emil. My account of moral standing in this essay is importantly incomplete. I discuss this second way of acquiring moral standing in ‘Moral Standing and Rational Choice Contractarism,’ in Contractarianism and Rational Choice: Essays on Gauthier, Vallentyne, Peter ed. (Cambridge: Cambridge University Press 1991), 76-95.Google Scholar

21 It is Hume’s view, as expressed by the passage quoted at the beginning ofthis essay. I think it is also implicit in, that is, entailed by Hobbes’ account, but that may be controversial. See Leviathan, Chapter 28, especially paragraph 2: ‘the subjects did not give the Sovereign that right [to punish]; but onely in laying down theirs … ’ see as well Jean-Jacques Rousseau, Du Contrat social, Book II, Chapter V, paragraph 4.

‘[T]he offender, by violating the life or liberty or property of another, has lost his own right to have his life, liberty, or property respected, so that the state has no prima facie duty to spare him … It is morally at liberty to injure him as he has injured others … ’ (Ross, W.D. The Right and the Good [Oxford: Clarendon Press 1930Google Scholar), 60-1). Alan H. Goldman endorses ‘the possible claim that a condition of having specific rights is that one honours those rights of others (when one is able to do so). When a person violates the rights of others, he involuntarily loses his own rights … ’ (‘The Paradox of Punishment,’ Philosophy & Public Affairs 9 [1979] 44). See also Rachels, James The Elements of Moral Philosophy (New York: Random House 1986), 130Google Scholar: ‘But why is it permissible to punish? The answer [of the social contract theory of morals] is that … by violating the rule with respect to us, criminals release us from our obligation toward them and leave themselves open to retaliation.’

22 I am especially indebted here to Geoffrey Sayre-McCord, as well as to Martin Golding, for comments and suggestions leading to my distinguishing more clearly the two ways in which rights may be lost by wrongdoers.

23 Hume, of course, emphasized the shorts;ghtedness of humans. For a Humean reading of Hobbes, see Hampton, Jean Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press 1986Google Scholar), Chapter 3.

24 ‘If rights are grounded in our rational nature, how can they be lost or forfeited except by our ceasing to share in that nature?’ (Sumner, 110)

25 This is especially clear in, say, the literature on abortion, where it is debated whether mere life, or sentence, or rationality (actual or merely potential) suffice for possession of a moral right to life.

26 More precisely, rationality is necessary only for one of two contractarian ways of acquiring moral standing. See the essay mentioned in note 20.

27 Gauthier defends this claim in a stronger form in Morals by Agreement, especially Chapter 6. If, contra Gauthier, we allow (non-moral) interests in the interests of others in the premises of our contractarian account of justice, the formulation of claims about exploitation becomes more complicated.

28 In the case that these (undefended) claims about positive duties be controversial, I should note that nothing in this essay depends on their truth.

29 Carl may lack full moral standing and still be protected by justice insofar as he is the beneficiary of Albert’s obligations to Beatrice. Carl’s status in such a case would be that of an indirect moral object (and third-party beneficiary) with regard to these obligations to Beatrice. What Carl could not be is the direct object of (these) obligations of justice.

30 Goldman, 45

31 For instance, the loss of procedural rights when one violates the procedural rights of others.

32 I owe this suggestion to Jacob Adler.

33 Given that justice is a derived virtue for utilitarians, the concept of loss of full moral standing, as I have characterized it, should not be especially problematic for the theory. What utilitarians cannot accept is the idea of complete loss of moral standing for sentient beings.

34 The expression ‘retributive sentiments’ comes from Mackie, J.L.. See his ‘Morality and the Retributive Emotions,’ Criminal Justice Ethics 1 (1982) 3-10CrossRefGoogle Scholar. Of course, retributive accounts of punishment, such as the classical theories of Kant and Hegel, that seek to understand punishment as an acknowledgement of the moral standing (and agency) of wrongdoers, will be unable to avail themselves of my full account.

35 See Morris, Herbert ‘A Paternalistic Theory of Punishment,’ American Philosophical Quarterly 18 (1981) 263-71Google Scholar; and Hampton, Jean ‘The Moral Education Theory of Punishment,’ Philosophy & Public Affairs 13 (1984) 208-38.Google Scholar Hampton argues that on her account punishment is not paternalistic in any objectionable sense; it remains, nonetheless, that the justification of the deprivations involved in punishment is the wrongdoer’s good.

36 Hobbes says of the ‘Foole’ that ‘He therefore that breaketh his Covenant, and consequently declareth that he thinks he may with reason do so, cannot be received into any Society … but by the errour of them that receive him … ’ ﹛Hobbes, Chapter 15).

37 The analogy to exile is interesting. Consider the ancient practice of banishment. Someone violates certain fundamental norms of society (or displeases the rulers) and is stripped of citizenship and banished from the land. Socrates was offered this fate; more recently Solzhenitsyn was exiled from his native country. In these and other cases, banishment can be understood as punishment. As such it appears to be very severe: Socrates preferred death. In 1958 the U.S. Supreme Court found exile and banishment to be violations of the constitutional prohibition of ‘cruel and unusual punishment.’ See Trop v. Dulles, 356 U.S. 86. However, exile need not be thus understood. Instead one can think of it as loss of a certain status and consequent expulsion form one’s society. Now banishment or exile have not historically been thus understood, or at least not entirely. Exile traditionally has been the fate reserved for those it would be politically inappropriate to execute, for instance because of their royal blood or former political status. Rarely have ordinary criminals or the poor and powerless been banished. If we focus on the elements of withdrawal of membership and expulsion that are implicit in involuntary exile, we may understand punishment in part as withdrawal of membership in society and, on occasion, as consequent expulsion. Someone who is not a member (or citizen) of a society lacks a certain legal and political standing with respect to that society. Someone who is exiled or banished from his or her society may be understood to have had that legal and political status taken away. Similarly, something that is neither the direct object of considerations of justice nor of benevolence lacks moral standing. And someone who is unwilling to abide by certain moral constraints thereby loses his or her moral standing, either partially or completely. It is noteworthy that Chief Justice Warren rejected exile, or denationalization, as ‘the total destruction of the individual’s status in organized society … In short, the expatriate has lost the right to have rights’ (Trop v. Dulles at 101, 102). Making allowances for rhetoric, this is the consequence of wrongdoing on the account I am offering.

38 Feinberg, Joel ‘The Expressive Function of Punishment,’ in Doing and Deserving (Princeton: Princeton University Press 1970) 95-118Google Scholar

39 Defenders of alternatives to punishment (e.g., rehabilitation, restitution) might also avail themselves of a forfeiture account such as mine to explain how we might be justified in imposing alternative treatment on wrongdoers.

40 Though the reasons could appeal to justice. Some may hold that justice requires that certain criminals be punished. Such an account would provide reasons for punishment of a particular sort and of particular force.

41 It is often argued that execution of former tyrants makes it harder to topple present and future tyrants.

42 Of course, if one builds into the characterization of these rights certain scope requirements — e.g., that they be held by all humans— rational choice moral theory will not be able to generate them. Note, however, that such a theory may be able to generate something analogous to indefeasible or absolute moral right, that is, rights that may never be overridden, whatever the consequences. It may be that the only cases where contractarian justice does not prohibit the intentional killing of an adult human are those where the latter possesses no moral right to life to be overridden. However, the semantics of ‘absolute’ and ‘defeasible’ must be carefully worked out. See note 7.

43 Nor does anything in this essay tum on acceptance of this belief.

44 I should note that I am sceptical that we generally have such reasons. Thus it could be that we rationally or prudentially ought not to do what we are not morally forbidden to do.

45 This objection was made to me in discussion.

46 This may also have been Hobbes’ view, as he endorsed helping the poor who could not help themselves (Hobbes, Chapter 30). He also says that ‘When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself any other way, but by some fact against the Law … he is totally Excused … ’ (Chapter 27). The redistribution I mention is defended in my ‘A Non-Egalitarian Defense of Redistribution,’ In Social Justice, Bowling Green Studies in Applied Philosophy IV, Michael Bradie and David Braybrooke, eds. (Bowling Green, OH: Bowling Green State University 1982), 68-84, and ‘A Hobbesian Welfare State?’ Dialogue 27 (1988) 653-73. Marilyn Friedman and Gregory Kavka have independently expressed concern about the implications of my account for acts of wrongdoing that violate unjust laws or that take place in contexts of imperfect compliance. Addressing these concerns would require considerably more space that I have here.

47 David Falk has criticized my account for its silence regarding mercy. A fuller exposition of my forfeiture theory would have to discuss, and make room for, mercy. For a recent discussion, see Murphy, Jeffrie G. and Hampton, Jean Forgiveness and Mercy (Cambridge: Cambridge University Press 1988CrossRefGoogle Scholar).

48 Quinn, 332

49 Ibid. 332-3