George Sher’s version of the expected-consequence account of desert says that properly understood and specified, we deserve the expected consequences of our actions. His version of retributivism says that wrongdoing involves the taking of more than one’s share of liberty, such that the wrongdoer deserves punishment by way of redressing the imbalance caused by that act. One thing that falls between the cracks of both accounts is an aggressor’s deserving the harmful consequences of a justified act of self-defense against his aggression.
Suppose that Smith aggresses seriously against Jones, or makes a serious attempt to. Now suppose that Jones mounts an effective defensive response. Suppose that Smith ends up seriously injured or killed as a result. Suppose ex hypothesi that the force Jones wields is by all reasonable accounts proportionate to the force Smith initiated. In that case, it seems natural to say that Smith deserved his predicament. But it’s not clear which of the two preceding accounts best grounds that claim. In one sense, both do; in another (clearer) sense, neither does.
At first glance, the adverse consequences of justified self-defense might appear to be perfectly explained by the expected consequence account: when Smith attacks Jones, he has to expect that Jones may very well fight back; if Jones fights back, Smith would reasonably have to expect that Jones might prevail. The more serious the attack, the more predictably desperate the self-defensive response. The more desperate the response, the higher the likelihood of serious injury or death for the attacker. So when that happens, it’s tempting to think that the expected consequence account has been vindicated.
And to some extent it has. But victims sometimes surprise us. At least sometimes, aggressors go after victims who might reasonably be predicted not to fight back, or not to do so effectively–much less to put their attackers in the hospital or the morgue. And yet that happens. When it happens, the attacker (ex hypothesi) deserves the consequences just as fully as he would in the cases where the consequences were more clearly predictable. So while one set of cases vindicates the expected consequence account, another equally important set of cases serves as a defeater.*
Retributivism seems, at first glance, to fit the case better. An aggressor, on Sher’s account, takes more than his rightful share of liberty from the victim, depriving the victim of her fair share. An imbalance results that requires redress. And it might seem that self-defense serves that function. But retributivism says that punishment is what serves that function, and punishment is usually thought to be conceptually distinguishable (sharply distinguishable) from justified self-defense. Both are justified; both are justified responses to aggression; both are expressions of justice. But the fact remains that punishment is neither an instance of self-defense nor a species of it. Nor is punishment an instance or species of self-defense. They’re just separate things.
We might at this point produce a revisionary conception of punishment that includes self-defense, or one of self-defense that includes punishment. Locke seems to write that way in the Second Treatise. But that’s a mere conjecture, and probably not a promising or plausible one. In any case, it’s not the line that Sher takes, or that very many other philosophers have taken. So it looks like retributivism fails to handle the deserved consequences on the aggressor of justified self-defense.
Conclusion: it’s an adequacy condition on a theory of desert that it handle the deserved consequences on the aggressor of justified self-defense. So far (five chapters into the book), Sher’s theory doesn’t.
*You might reasonably think that the expected-consequence account fails even in the case where the aggressor predicts that the victim might fight back and harm him–either on the grounds that the probabilities of the expected adverse consequences are usually too weak to ground claims about desert, and/or on the grounds that even when they’re strong, they’re not genuinely explanatory of desert.