Should we think that punishment, because it involves intentionally inflicting harm without consent, is defeasibly impermissible (much like it is defeasibly impermissible, at least in private life, to initiate coercion against other people)? I suspect not, for a very simple reason: not intentionally inflicting harm on others (without their consent) might well not be the relevant sort of basic, defeasible duty that would play this role. Here, then, is another, better candidate: people having a basic moral right not to be gratuitously harmed by others. Why is this candidate better? That is a complicated question, but I’ll say two things. First, for me — and maybe for you — it is more intuitive (brutely, but also because it covers more ground, more cases). Second, it better comports with the following principle (based loosely on what Thomas Scanlon says in the first two or three chapters of his MORAL DIMENSIONS): the essential basis for the moral-permissibility-status of actions does not include the intentions or motivations of the agent (though in special cases such features are included).

If my suggestion here is right, then the Boonin-style sweeping argument against punishment does not work. One would have to argue something like this: the harms of punishment are — or perhaps usually are and should be presumed to be — gratuitous. That is a tall order. My conclusion is that there is no “problem of punishment” (or, if there is, it is really not much of a problem, at least not until someone demonstrates either a strong-enough thesis about punishment and gratuitous harm or that the fundamental duty here is definitely one of not intentionally harming others without their consent).

When someone (or something) deserves something, what sort of normative fact (property, condition) is this? Is this sort of normative fact determined by other sorts of normative facts (and, if so, which ones)? Is this sort of normative fact something that determines other sorts of normative facts (and, if so, which ones)? Here is something of a live issue in political philosophy to provide motivation (beyond mere curiosity) for asking and answering these questions: if I deserve more money or prestige than you do, this might be considered the basis for it being fair or just that I get more (or for my having normative claim or right to have more). Alternatively: it might be that standards of fairness or justice (or for relevant normative claims or rights) come first, the facts about who deserves what in society being merely a result of this. (This is the issue of whether desert of the relevant sort is “pre-justicial,” not whether it is “pre-institutional.” The former feature seems more important to me.) However we answer my questions in the distributive justice case, the answers might be different in other cases: perhaps in some cases desert-facts “come first” and in others they “come last” (or maybe things are more complicated and they “come in the middle” in some or all cases).  

I want to try to make some progress on these issues (at the general level) by examining a particular sort of case of desert: the case of a person deserving not to be wronged. Though we might or might not be able to generalize from this sort of desert to other cases, my inkling is that aspects of the order or structure of the different normative features here is pretty clear with this particular sort of desert, making it a good (or at least easier) case to start with.

I’ve been playing around with this analysis or account of a certain central sort of desert, one form of which is covered in Sher’s Desert, chapter 4 (concerning one deserving success due to diligent effort, hard work, etc.; other sorts of desert in the same family would include deserving credit — admiration or honors perhaps — for achievement):

Desert (Earning)  M deserves (in the earning sense) X for having feature F = it is appropriate for anyone to have (the relevant sort of) positive-attitude response to M getting benefit X as reward for M having feature F, where M (or anyone similarly situated) having F is desirable in a particular sort of way (mutatis mutandis for X being harmful to A, this constituting sanction for M, and M failing to have desirable feature F).

One question that came up in our discussion last night was whether, on this sort of approach — still of course too schematic and unspecific in important ways — this kind of desert-property comes to (or is in some way closely-associated with) a kind of value property. Sher seems to have a view like this (though his precise view, even at this sort of schematic level, is hard to pin down).

[CONTINUING A BIT OF THE MTSP ZOOM DISCUSSION OF CH. 1 OF SHER’S DESERT]

I had developed a view of desert-basis (the fact or facts in virtue of which a deserver deserves something) and how it determines desert that went like this: (a) true desert basis, at least in a certain important sense, is the full set of conditions that make it such that the deserver deserves something, (b) in the standard formula (from Kleinig, adopted by Sher), “M deserves X for A” (or “M deserves X because of A”), the ‘for A’ (or ‘because A’) part functions like ‘the cause’ does in our language specifying the cause of events, viz., by picking out a salient (cognitively, pragmatically, conversationally salient) element from the full set of determiners that stands in for the full set, (c) this is evidenced by the case of my wronging you making it such that you deserve an apology because the cited property is different from the sorts usually cited (and not, not in the relevant sense of ‘property’, a property of the deserver, the thing that the standard view takes to be the sole or special determiner). I now think that all of this is basically wrong: [a] if true misses the point, [b] is flat-out wrong, and [c] is also wrong.