The irrelevance of responsibility

Social Philosophy and Policy

Volumn 16, Issue 2, 1999, Pages 118-145

  Long, Roderick T ^a  

^a NONE

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EID: 0039598784     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0265052500002417     Document Type: Article

References (95)

1. "It was in this sphere then, the sphere of legal obligations, that the moral conceptual world of 'guilt,' 'conscience,' 'duty,' 'sacredness of duty' had its origin...." Friedrich Nietzsche, On the Genealogy of Morals, trans. Walter Kaufmann and R. J. Hollingdale (New York: Vintage Books, 1989), 65.
2. It does not necessarily follow, however, that a particular moral code's emphasis on responsibility will be proportional to the extent to which that moral code follows a legal model. Ancient Jewish literature (e.g., the Torah) famously embraces a more law-centered conception of morality than does ancient Greek literature, which is more virtue-centered; yet the concept of moral responsibility plays at least as central a role in the latter as in the former, if not more so; think of Agamemnon's and Oedipus's disavowals of responsibility (in Homer's Iliad and Sophocles' Oedipus at Colonos, respectively), or the examination of the conditions of voluntary wrongdoing in Gorgias's Encomium of Helen, Plato's Socratic dialogues, and Aristotle's Ethics.
3. It does not necessarily follow, however, that a particular moral code's emphasis on responsibility will be proportional to the extent to which that moral code follows a legal model. Ancient Jewish literature (e.g., the Torah) famously embraces a more law-centered conception of morality than does ancient Greek literature, which is more virtue-centered; yet the concept of moral responsibility plays at least as central a role in the latter as in the former, if not more so; think of Agamemnon's and Oedipus's disavowals of responsibility (in Homer's Iliad and Sophocles' Oedipus at Colonos, respectively), or the examination of the conditions of voluntary wrongdoing in Gorgias's Encomium of Helen, Plato's Socratic dialogues, and Aristotle's Ethics.
4. It does not necessarily follow, however, that a particular moral code's emphasis on responsibility will be proportional to the extent to which that moral code follows a legal model. Ancient Jewish literature (e.g., the Torah) famously embraces a more law-centered conception of morality than does ancient Greek literature, which is more virtue-centered; yet the concept of moral responsibility plays at least as central a role in the latter as in the former, if not more so; think of Agamemnon's and Oedipus's disavowals of responsibility (in Homer's Iliad and Sophocles' Oedipus at Colonos, respectively), or the examination of the conditions of voluntary wrongdoing in Gorgias's Encomium of Helen, Plato's Socratic dialogues, and Aristotle's Ethics.
5. It does not necessarily follow, however, that a particular moral code's emphasis on responsibility will be proportional to the extent to which that moral code follows a legal model. Ancient Jewish literature (e.g., the Torah) famously embraces a more law-centered conception of morality than does ancient Greek literature, which is more virtue-centered; yet the concept of moral responsibility plays at least as central a role in the latter as in the former, if not more so; think of Agamemnon's and Oedipus's disavowals of responsibility (in Homer's Iliad and Sophocles' Oedipus at Colonos, respectively), or the examination of the conditions of voluntary wrongdoing in Gorgias's Encomium of Helen, Plato's Socratic dialogues, and Aristotle's Ethics.
6. It does not necessarily follow, however, that a particular moral code's emphasis on responsibility will be proportional to the extent to which that moral code follows a legal model. Ancient Jewish literature (e.g., the Torah) famously embraces a more law-centered conception of morality than does ancient Greek literature, which is more virtue-centered; yet the concept of moral responsibility plays at least as central a role in the latter as in the former, if not more so; think of Agamemnon's and Oedipus's disavowals of responsibility (in Homer's Iliad and Sophocles' Oedipus at Colonos, respectively), or the examination of the conditions of voluntary wrongdoing in Gorgias's Encomium of Helen, Plato's Socratic dialogues, and Aristotle's Ethics.
7. For the Law Merchant, see Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton: Fred B. Rothman, 1983); Bruce L. Benson, "The Spontaneous Evolution of Commercial Law," Southern Economic Journal 55 (January 1989): 644-61; W. Mitchel, Essay on the Early History of the Law Merchant (New York: Burt Franklin, 1904); Harold J. Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); and William C. Wooldridge, Uncle Sam, the Monopoly Man (New Rochelle: Arlington House, 1970).
8. For the Law Merchant, see Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton: Fred B. Rothman, 1983); Bruce L. Benson, "The Spontaneous Evolution of Commercial Law," Southern Economic Journal 55 (January 1989): 644-61; W. Mitchel, Essay on the Early History of the Law Merchant (New York: Burt Franklin, 1904); Harold J. Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); and William C. Wooldridge, Uncle Sam, the Monopoly Man (New Rochelle: Arlington House, 1970).
9. For the Law Merchant, see Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton: Fred B. Rothman, 1983); Bruce L. Benson, "The Spontaneous Evolution of Commercial Law," Southern Economic Journal 55 (January 1989): 644-61; W. Mitchel, Essay on the Early History of the Law Merchant (New York: Burt Franklin, 1904); Harold J. Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); and William C. Wooldridge, Uncle Sam, the Monopoly Man (New Rochelle: Arlington House, 1970).
10. For the Law Merchant, see Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton: Fred B. Rothman, 1983); Bruce L. Benson, "The Spontaneous Evolution of Commercial Law," Southern Economic Journal 55 (January 1989): 644-61; W. Mitchel, Essay on the Early History of the Law Merchant (New York: Burt Franklin, 1904); Harold J. Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); and William C. Wooldridge, Uncle Sam, the Monopoly Man (New Rochelle: Arlington House, 1970).
11. For the Law Merchant, see Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton: Fred B. Rothman, 1983); Bruce L. Benson, "The Spontaneous Evolution of Commercial Law," Southern Economic Journal 55 (January 1989): 644-61; W. Mitchel, Essay on the Early History of the Law Merchant (New York: Burt Franklin, 1904); Harold J. Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); and William C. Wooldridge, Uncle Sam, the Monopoly Man (New Rochelle: Arlington House, 1970).
12. For other examples, see Bruce L. Benson, The Enterprise of Law: Justice without the State (San Francisco: Pacific Research Institute, 1990); Tom W. Bell, "Polycentric Law," Humane Studies Review 7, no. 1 (1991-92); and Albert S. Loan, "Institutional Bases of the Spontaneous Order: Surety and Assurance," Humane Studies Review 7, no. 1 (1991-92).
13. For other examples, see Bruce L. Benson, The Enterprise of Law: Justice without the State (San Francisco: Pacific Research Institute, 1990); Tom W. Bell, "Polycentric Law," Humane Studies Review 7, no. 1 (1991-92); and Albert S. Loan, "Institutional Bases of the Spontaneous Order: Surety and Assurance," Humane Studies Review 7, no. 1 (1991-92).
14. For other examples, see Bruce L. Benson, The Enterprise of Law: Justice without the State (San Francisco: Pacific Research Institute, 1990); Tom W. Bell, "Polycentric Law," Humane Studies Review 7, no. 1 (1991-92); and Albert S. Loan, "Institutional Bases of the Spontaneous Order: Surety and Assurance," Humane Studies Review 7, no. 1 (1991-92).
15. Roderick T. Long, "Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism," Social Philosophy and Policy 10, no. 1 (Winter 1993): 166-91. The right under discussion here is explicated somewhat more rigorously there.
16. I leave open the question of the extent, if any, to which rights-holders should be required to renounce the personal exercise of this liberty in favor of delegation to a particular agent, the state.
17. I have elsewhere distinguished an A component as well: the moral permissibility of exercising one's right. This is distinct from the moral permissibility of enforcing respect for one's right. It would be legitimate to defend one's right to promulgate Nazi ideology, for example, yet not legitimate to exercise the right one is defending.
18. Bear in mind that we are still operating with the narrow conception of "legal" here. Claims not legitimately enforceable might nevertheless count as "legal rights" under a system of voluntary law like the Law Merchant.
19. Long, "Abortion," 170-76.
20. Note that one can be used as a means without being used as a mere means; it is only the latter that constitutes a rights-violation. Some such distinction is necessary, if the prohibition on using people as mere means is not to forbid most human interactions. Crossing someone's boundary counts as using that person as a means, but one uses someone as a mere means just in case one's boundary-crossing transgresses principle (2). For more discussion, see ibid.
21. I previously wrote only that "I shall not argue for the truth of (1), but I take it to be a plausible moral principle..." ("Abortion," 166 n. 2).
22. An action need not actually be performed from virtue in order to express virtue, i.e., in order to be the kind of action that someone with the virtuous attitude would perform. For discussion, see Rosalind Hursthouse, "Virtue Theory and Abortion," Philosophy and Public Affairs 20 (Summer 1991): 223-46.
23. Aristotle, Nicomachean Ethics (hereafter NE), 1097b25-1098a4.
24. NE, 1177b26-1178a4.
25. NE, 1178b5-7, 1178b33-1179a1.
26. NE, 1159a6-12.
27. Aristotle, Politics, 1253a1-5, 27-33 (translation mine).
28. NE, 1104a20-25 (translation mine).
29. NE, 1118a23-1119a7 (translation mine).
30. Diogenes Laertius, Lives and Opinions of Eminent Philosophers, V.i.20 (translation mine). The point, once again, is that people who fall short of virtue place either too much or too little value on their own vulnerable embodiedness.
31. Aristotle, Politics, 1253a7-28 (translation mine).
32. NE, 1097b20-1098al8, 1168b29-1169a6.
33. For a fuller presentation of this argument, see Roderick T. Long, "Aristotle's Conception of Freedom," Review of Metaphysics 49 (June 1996): 781-84.
34. Aristotle, Politics, 1324b23-34.
35. Cf. Lysias on the founders of Athenian democracy: "They believed that it was the way f wild beasts to be forcibly ruled by one another, but that the proper way for men was to define justice by law, to convince by reason, and to serve both by their actions..." (quoted in Kathleen Freeman, ed., The Murder of Herodes, and Other Trials from the Athenian Law Courts [Indianapolis: Hackett Publishing, 1991], 236). Both Aristotle and Lysias are thinking primarily of the choice of persuasion over force in the management of collective affairs, but the same principle seems to me to apply in the case of one-on-one interactions as well. (Cf. John Locke, Second Treatise of Government, II, 4-6.)
36. Cf. Lysias on the founders of Athenian democracy: "They believed that it was the way f wild beasts to be forcibly ruled by one another, but that the proper way for men was to define justice by law, to convince by reason, and to serve both by their actions..." (quoted in Kathleen Freeman, ed., The Murder of Herodes, and Other Trials from the Athenian Law Courts [Indianapolis: Hackett Publishing, 1991], 236). Both Aristotle and Lysias are thinking primarily of the choice of persuasion over force in the management of collective affairs, but the same principle seems to me to apply in the case of one-on-one interactions as well. (Cf. John Locke, Second Treatise of Government, II, 4-6.)
37. Even in cases of actions committed through negligence, the application of legal sanctions presupposes that the agent is responsible for being negligent.
38. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
39. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
40. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
41. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
42. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
43. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
44. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
45. My thoughts on this subject have been influenced by Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," in Randy E. Barnett and John Hagel, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Philadelphia: Ballinger, 1977); Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power versus Liberty," Criminal Justice Ethics 4, no. 2 (Summer/Fall 1985): 50-72; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998); Richard A. Epstein, A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: Cato Institute, 1980); Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Walter Kaufmann, Without Guilt and Justice (New York: Dell Publishing, 1973); Thomas Szasz, Ideology and Insanity: Essays on the Psychiatric Dehumanization of Man (Garden City: Doubleday, 1970); and Benson, Enterprise of Law. None of these authors should be associated with the precise views I defend here; the conclusions I defend are closest to those of Barnett, but my case for those conclusions comes from a significantly less consequentialist perspective than does his. 28 Notice that this principle rules out victimless-crime laws as impermissible. (Or at least, it rules out the enforcement of such laws.) I regard this as an advantage rather than a defect of my view.
46. Cf. Long, "Abortion," 188 n. 46.
47. By whom? Once again, I leave open the question of whether, and under what conditions, this right may be exercised by the victim (or third parties) or must be delegated to a particular institution.
48. I take it that a person's property consists in objects whose relation to that person is such that one cannot use the objects as means without thereby using the person as a means. This might be because the products of our labor are an extension of ourselves (a proposition dear to the hearts of both Lockean defenders of capitalism and Marxist theorists of alienated labor), or because, as Robert Nozick argues (Anarchy, State, and Utopia [New York: Basic Books, 1974], 169-70), my seizing the products of your labor is tantamount to forcing you to labor for me. If the stereo is the product of Juanita's labor (either directly, because she built it, or indirectly, because she bought it with money she earned), then Anita's appropriation of the stereo counts as an indirect appropriation of Juanita herself, and thus as a boundary-invasion.
49. Or if one commits a tort-but one implication of the theory developed here is that the crime/tort distinction may be untenable. For a critique of that distinction, see Benson, Enterprise of Law; Barnett, "Restitution"; and Barnett, Structure of Liberty. The crime/tort distinction is the exception, not the rule, in legal history.
50. Or if one commits a tort-but one implication of the theory developed here is that the crime/tort distinction may be untenable. For a critique of that distinction, see Benson, Enterprise of Law; Barnett, "Restitution"; and Barnett, Structure of Liberty. The crime/tort distinction is the exception, not the rule, in legal history.
51. Or if one commits a tort-but one implication of the theory developed here is that the crime/tort distinction may be untenable. For a critique of that distinction, see Benson, Enterprise of Law; Barnett, "Restitution"; and Barnett, Structure of Liberty. The crime/tort distinction is the exception, not the rule, in legal history.
52. It might be objected that this solution violates the liberal principle of equality before the law. But demanding a million dollars from a billionaire and demanding a million dollars from a pauper do not strike me as cases of equal treatment. In any case, liberal jurisprudence has traditionally recognized the concept of bankruptcy, i.e., a limitation on the claims creditors can make on someone whose resources have been exhausted; and tailoring damages to a defendant's ability to pay seems to me an application of the same principle.
53. This claim needs to be qualified somewhat. In the exercise of defensive force, I may keep striking you because I know my blows cause you disutility and I hope they will accordingly motivate you to desist; or if I imprison you I may set up a device to give you electric shocks if you attempt to climb the prison walls, once again hoping that the disutility caused by the shocks will motivate you to stop trying to escape. In such cases the disutility is intended, not merely foreseen. In both cases, however, your discomfort is a means of controlling you, not an end at which the controlling process is aimed. For example, I cause you disutility in order to keep you imprisoned; I do not imprison you in order to cause you disutility.
54. Barnett, "Pursuing Justice," 65-66.
55. Long, "Aristotle's Conception of Freedom," 787-92. Aristotle himself did not take the value of liberty to rule out coercive paternalism, because he thought that the requirements of liberty (eleutheria) were satisfied by allowing consent to a political framework, even when very little freedom of choice (exousia) was permitted within that framework (ibid., 792-98).
56. Long, "Aristotle's Conception of Freedom," 787-92. Aristotle himself did not take the value of liberty to rule out coercive paternalism, because he thought that the requirements of liberty (eleutheria) were satisfied by allowing consent to a political framework, even when very little freedom of choice (exousia) was permitted within that framework (ibid., 792-98).
57. For a criticism of this view, see Roderick T. Long, "Immanent Liberalism: The Politics of Mutual Consent," Social Philosophy and Policy 12, no. 2 (Summer 1995): 1-31.
58. On the Aristotelian view, self-directed activity is crucial to eudaimonia (human flourishing). As Jennifer Whiting observes: A heart which, owing to some deficiency in its natural capacities, cannot beat on its own but is made to beat by means of a pacemaker is not a healthy heart. For it, the heart, is not strictly performing its function. Similarly a man who, owing to some deficiency in his natural capacities, cannot manage his own life but is managed by means of another's deliberating and ordering him is not eudaimôn - not even if he possesses the same goods and engages in the same first order activities as does a eudaimôn man.... Aristotle's general identification of what it is to be human with rational agency is not altogether implausible - at least not to those of us who would prefer to trust our hearts to pacemakers than our deliberations and the pursuit of our ends to another, no matter how benevolent and wise he happens to be. Jennifer Whiting, "Aristotle's Function Argument: A Defense," Ancient Philosophy 8, no. 1 (Spring 1988): 43-46.
59. At least, the sorts of legal punishments we are concerned with are boundary-invasions, since they involve forcible impositions of various kinds. Peaceful, private sanctions like boycotts, ostracism, and the like can be punishments of a sort, but are not boundary-invasions, and thus may be imposed for retributive, deterrence, or rehabilitative reasons without violating principle (2).
60. It might be objected that my position, since it denies any legal jurisdiction over people's mental states, cannot countenance treating wrongdoers as "ongoing threats," since such a judgment makes reference to the wrongdoers' mental states. But my position is that any causes predisposing people to violate others' rights may be considered as grounds for restraining such people, be those causes mental states or epileptic seizures. It is not the fact of the mental state itself, but its tendency to issue in action, that brings it within the law's purview. "The liberal conception of justice prohibits not only the unjustified use of force against another, but the unjustified threat of force as well.... It is the right of self-defense that permits persons to use force to repel a threat of wrongful harm before the harm occurs" (Barnett, Structure of Liberty, 185). If I point a gun at your head and start to play Russian roulette, you do not have to wait till a shot is fired before taking defensive action. To impose on others a sufficiently high risk of boundary-invasion is itself a boundary-invasion. Hence, preventive restraint can be justified. Needless to say, given the potential for mistake and abuse, the scope for preventive restraint should be narrow. As Barnett writes, "I would limit the use of preventive detention to those persons who have communicated a threat to others by their past criminal behavior.... I would wager that the odds of a crime being committed by someone who has already committed a crime greatly exceed the odds of a crime being committed by one who has never committed a crime" (ibid., 213).
61. It might be objected that my position, since it denies any legal jurisdiction over people's mental states, cannot countenance treating wrongdoers as "ongoing threats," since such a judgment makes reference to the wrongdoers' mental states. But my position is that any causes predisposing people to violate others' rights may be considered as grounds for restraining such people, be those causes mental states or epileptic seizures. It is not the fact of the mental state itself, but its tendency to issue in action, that brings it within the law's purview. "The liberal conception of justice prohibits not only the unjustified use of force against another, but the unjustified threat of force as well.... It is the right of self-defense that permits persons to use force to repel a threat of wrongful harm before the harm occurs" (Barnett, Structure of Liberty, 185). If I point a gun at your head and start to play Russian roulette, you do not have to wait till a shot is fired before taking defensive action. To impose on others a sufficiently high risk of boundary-invasion is itself a boundary-invasion. Hence, preventive restraint can be justified. Needless to say, given the potential for mistake and abuse, the scope for preventive restraint should be narrow. As Barnett writes, "I would limit the use of preventive detention to those persons who have communicated a threat to others by their past criminal behavior.... I would wager that the odds of a crime being committed by someone who has already committed a crime greatly exceed the odds of a crime being committed by one who has never committed a crime" (ibid., 213).
62. My position entails that an offender like Karla Faye Tucker Browne (an axe murderer who was executed in Texas in 1998) should not have been kept in prison, let alone executed, since (to all appearances) she had become rehabilitated, and so neither imprisonment nor execution could pass the test of principle (2). More controversially, it entails that a participant in genocide like Adolf Eichmann should not have been imprisoned or executed, because despite an apparent lack of rehabilitation, he still posed no ongoing danger to others. Browne and Eichmann would still owe compensation to the families of their victims, however. The notion of compensation in the case of Eichmann in particular may seem ludicrous. First, even those who accept the notion of partial compensation to the families of homicide victims may wqnder how an individual of average means could make any substantial compensation to the survivors of the millions of victims to whose deaths Eichmann contributed. Second, even if Eichmann were the richest man on Earth, it may seem grossly insulting to the victims of so great an evil as the Holocaust to ask them to accept payment in lieu of the perpetrator's punishment. But consider: Even on the retributive theory, there is no punishment for Eichmann that would not be ludicrously inadequate to his crime. We cannot execute Eichmann six million times. And even if such a sentence were physically possible, we could not carry it out without becoming monsters ourselves. For that matter, as a purely pragmatic point, we must recognize that if there were no legal provision for punishing Eichmann, that would not mean that he could live in happy impunity. Someone like Eichmann, once his identity and location became known, would almost certainly be the victim of private revenge; and the perpetrator of that revenge, if unlikely to kill anyone else, would also have to be released. As Sade wryly suggests: Let us never impose any other penalty upon the murderer than the one he may risk from the vengeance of the friends and family of him he has killed. "I grant you pardon," said Louis XV to Charolais who, to divert himself, had just killed a man; "but I also pardon whoever will kill you." Donatien-Alphonse-François de Sade, "Yet Another Effort, Frenchmen, If You Would Become Republicans," in The Marquis de Sade: The Complete Justine, Philosophy in the Bedroom, and Other Writings, ed. and trans. Richard Seaver and Austryn Wainhouse (New York: Grove Press, 1966), 296-339. To some it may seem paradoxical that, after being so highly critical (too critical, many will think) of public retribution, I should offer private retribution as in some instances a salutary corrective. Let me clarify. I am not recommending retribution, either public or private. (I do think private retribution is often more excusable than public retribution, but that does not make it just.) My point is simply that, given human nature as it is, the threat of private retribution would be a genuine one under the system I advocate, and that some of the consequences of this fact are not unwelcome (as a deterrent, for example).
63. A still weaker case for retribution, in my view, is the idea that punishment is needed to send a "message." "The act of punishment constitutes symbolic condemnation of the offender for his offense. As such it serves to uphold and enforce collective moral norms violated by the criminal." See Franklin G. Miller, "Restitution and Punishment: A Reply to Barnett," Ethics 88, no. 4 (July 1978): 359. I find the notion of symbolic or expressive violence a rather disturbing one. In any case, the need to express symbolic condemnation is hardly weighty enough to overcome the presumption against force, given the numerous other methods available for expressing symbolic condemnation.
64. It should be noted, however, that our own legal system's commitment to mens rea is not unambiguous: Frequently, in the modern era, the Anglo-American criminal law has imposed liability without requiring the showing of a mens rea or guilty mind.... Criminal statutes are frequently silent on what sort of mens rea, if any, must be shown.... Although Sir William Blackstone, writing in the 18th century, asserted that the mens rea is an indispensable element of a crime, developments that have occurred largely since that time have created a considerable body of penal offenses in which no intent or other mental state need be shown. Absence of the mens rea requirement characterizes a few offenses like statutory rape, in which knowledge that the girl is below the age of consent is not necessary to liability, and bigamy, which in most jurisdictions may be committed even though the parties believe in complete good faith that they are free to marry. For the most part, however, absolute liability has been created by statutes defining offenses to which only slight or moderate penalties are attached. These offenses, sometimes called "public-welfare offenses," are most frequently concerned with economic regulation or with protection of the public health and safety.... The maxim ignorantia facti excusat ("ignorance of fact excuses") represents one aspect of the mens rea doctrine.... On the other hand, the Anglo-American law recognizes the maxim ignorantia legis neminem excusat ("ignorance of the law excuses no one").... The doctrine that mistakes of law do not excuse seems reasonably supportable when the offense involves conduct which would be recognized as dangerous and immoral by any responsible adult. The matter is much less clear, however, when the case is one of a statutory offense prohibiting conduct that is not obviously dangerous or immoral. Francis A. Alien, "Criminal Law," in Encyclopedia Britannica, vol. 6 (Chicago: William Benton, 1970), 765.
65. Roger Pilon, "Criminal Remedies: Restitution, Punishment, or Both?" Ethics 88, no. 4 (July 1978): 350-52.
66. I would disagree, however, with Pilon's contention that in the case of intentional injury, no amount of restitution could make the victim whole. If Bill Gates were to empty a bucket of Jell-O over my head, and then sign over to me half his fortune by way of restitution, I would regard myself as more than adequately compensated for his action. (Bill Gates, if you're reading this, please take note.)
67. Pilon, "Criminal Remedies," 355-56.
68. One is reminded of the character Asineth in the novel Hart's Hope, a victim of terrible injustice who takes a nevertheless excessive revenge. When told that vengeance is justified only "if you avenge yourself on those who harmed you [and not, say, their loved ones], and only if your vengeance is equal to the wrong done" (two conditions she is violating), Asineth responds, "I was unjustly treated, and unless my vengeance is monstrously unjust I won't be satisfied." Orson Scott Card, Hart's Hope (New York: Tor Books, 1983), 43-44.
69. Pilon, "Criminal Remedies," 355.
70. Barnett, Structure of Liberty, 205, 228.
71. One of the concerns of virtue is the public welfare; and one component of the public welfare is the adherence to virtue. Thus, to my mind, neither the requirements of virtue nor the requirements of public welfare can be defined in complete independence of one another. To be sure, each has some independently definable content; but a full specification of both will be a matter of coherence and mutual adjustment. The requirements of virtue put some constraint on what can be regarded as genuinely in the public interest; but the reverse is also true.
72. Barnett (in Structure of Liberty, 234) offers additional reasons for regarding the restitu-tion system as an adequate deterrent: Full compensation includes compensation for the costs of detection, apprehension, and prosecution.... In such a case it is likely that the subjective cost of making restitution will often exceed the subjective benefit gained from the crime.... Pure restitution can also increase the certainty of sanctions and their proximity to the offense. Restitution increases incentives for victims to report offenses and to cooperate with law-enforcement authorities.... Moreover, since the cost of making restitution increases as time passes [because enforcement costs continue to accumulate], even offenders will have an incentive to avoid prolonging the proceedings.
73. Barnett, Structure of Liberty, 181-83.
74. I may seem to have solved one problem only to create another. Doesn't my position, by licensing this kind of private retaliation, open the door to a reemergence of the bloodfeud? I don't think so. First, my position does not license such retaliation; it remains a crime (or tort) against which the victim can legitimately defend himself. And second, Europe's actual experience with restitution-based systems suggests that the prospect of collecting compensation tends to tame the bloodfeud: [T]he fact that they would have to give up the restitution they had received as reparations would cause victims to consider long and hard whether they really want a reprisal.... I suggest that a less retributivist state of mind would likely result from a system in which victims and their families had to choose between accepting complete restitution or arranging for a reprisal as compared with a system in which governmentauthored punishment is the victim's only option. That the right of restitution - or composition - largely supplanted the blood feud in medieval Europe tends to support this suggestion. (Barnett, Structure of Liberty, 183-84) Cf. David Friedman, "Private Creation and Enforcement of Law: A Historical Case," Journal of Legal Studies 8 (March 1979): 399-415; and Benson, Enterprise of Law.
75. I may seem to have solved one problem only to create another. Doesn't my position, by licensing this kind of private retaliation, open the door to a reemergence of the bloodfeud? I don't think so. First, my position does not license such retaliation; it remains a crime (or tort) against which the victim can legitimately defend himself. And second, Europe's actual experience with restitution-based systems suggests that the prospect of collecting compensation tends to tame the bloodfeud: [T]he fact that they would have to give up the restitution they had received as reparations would cause victims to consider long and hard whether they really want a reprisal.... I suggest that a less retributivist state of mind would likely result from a system in which victims and their families had to choose between accepting complete restitution or arranging for a reprisal as compared with a system in which governmentauthored punishment is the victim's only option. That the right of restitution - or composition - largely supplanted the blood feud in medieval Europe tends to support this suggestion. (Barnett, Structure of Liberty, 183-84) Cf. David Friedman, "Private Creation and Enforcement of Law: A Historical Case," Journal of Legal Studies 8 (March 1979): 399-415; and Benson, Enterprise of Law.
76. I may seem to have solved one problem only to create another. Doesn't my position, by licensing this kind of private retaliation, open the door to a reemergence of the bloodfeud? I don't think so. First, my position does not license such retaliation; it remains a crime (or tort) against which the victim can legitimately defend himself. And second, Europe's actual experience with restitution-based systems suggests that the prospect of collecting compensation tends to tame the bloodfeud: [T]he fact that they would have to give up the restitution they had received as reparations would cause victims to consider long and hard whether they really want a reprisal.... I suggest that a less retributivist state of mind would likely result from a system in which victims and their families had to choose between accepting complete restitution or arranging for a reprisal as compared with a system in which governmentauthored punishment is the victim's only option. That the right of restitution - or composition - largely supplanted the blood feud in medieval Europe tends to support this suggestion. (Barnett, Structure of Liberty, 183-84) Cf. David Friedman, "Private Creation and Enforcement of Law: A Historical Case," Journal of Legal Studies 8 (March 1979): 399-415; and Benson, Enterprise of Law.
77. Jesse L. Byock, Medieval Iceland: Society, Sagas, and Power (Berkeley: University of California Press, 1988).
78. Miller, "Restitution and Punishment," 359.
79. Does the presumption against force and in favor of persuasion extend to our relations with animals? I am inclined to answer along the following lines: In the case of animals with whom some cooperation is possible, where the choice between cooperation and compulsion is accordingly a meaningful one, there is a sense, albeit an attenuated one, in which animals count as conversation partners, and this probably licenses the extension to them of some rights, consistent with the limitations on their capacity that justify certain forms of paternalism. The extent of such rights may depend on the degree of cooperation and communication that is possible. Animals for whom very little along these lines is possible may accordingly be lacking in rights entirely (though this is consistent with our having other -non-rights-based, and therefore nonenforceable - moral obligations toward them).
80. Miller, "Restitution and Punishment," 359.
81. The distinction in ancient Athens between private and public suits was closer to that between ordinary and class-action lawsuits than between civil and criminal cases: To begin with, there was no public prosecutor. The State took no cognizance of any crimes, not even murder, unless committed against itself: that is to say, the State did not prosecute for offences now commonly regarded as committed against the community, but only for offences against the actual administration, such as treason or cheating the public treasury. Until Solon's day, prosecution was allowed only to the person injured or his next of kin; under Solon's reforms, any citizen who wished could bring an indictment against another.... Any Athenian citizen could bring a public action; but a private action had to be brought by the person directly interested, or... by his or her legal guardian. (Freeman, Murder of Herodes, 19-25)
82. The homesteader who receives this compensation could, in turn, be the object of a class-action suit if it transpires that a feasible way of identifying and compensating the group was available but ignored. (A court might also explore the possibility of there being ways to compensate a group without identifying its members.)
83. Miller, "Restitution and Punishment," 359.
84. Ibid., 360.
85. As I am using the term "authority," one can have the authority to do X ivithout necessarily having the authority not to do X.
86. Long, "Abortion."
87. For the purposes of the present discussion, I do not (thank goodness!) have to determine what precisely exploitation consists in or whether every case of exploitation constitutes a violation of principle (2).
88. The proportionality requirement does not mean that a defender must never inflict a greater injury than that threatened by the aggressor, however: It might be objected that killing can never be a proportionate response to any threat short of death. But our concern is with proportionality in moral seriousness, not proportionality in physical effect; to claim that a defensive killing can be morally proportionate only to a threat of death is to assume, between aggressive force and defensive force, a moral symmetry difficult to square with [principle (2)]. (Long, "Abortion," 187)
89. And arguably against innocent shields as well. (For the distinction between innocent threats and innocent shields, see Nozick, Anarchy, State, and Utopia, 34-35.) If I strap a baby to my chest and then go after you with a machete, so that you cannot defend yourself without injuring or killing the baby, it seems to me that in invading your boundary I have brought the baby into your boundary, and you are in your rights to respond; the invader of the baby's boundary is not you but myself.
90. Likewise, I am inclined to think, for the same reason, that the case for force against innocent shields faces even greater obstacles than the case for force against innocent threats, and thus has an even more stringent presumption to overcome. Most instances of "collateral damage" in warfare do not, in my judgment, come anywhere near to passing such a test.
91. The following type of example was suggested to me by David Boonin-Vail. 68 Whether it is also a boundary-violation will depend on whether Brutus and Cassius are right in regarding Caesar as an intolerable threat to Roman freedom.
92. Even so, we may wonder whether it is indeed Cassius's responsibility, rather than the coordination of his action with Brutus's, that is doing the real work. Suppose Cassius had walked through the door innocently, but did so because Brutus had asked him to come through at a particular time (without telling him why); or suppose Cassius had been insane, and so had participated in the assassination plot intentionally, but not responsibly. In these cases the coordination with Brutus seems enough to change the significance of Cassius's act, despite the absence of responsibility.
93. The standard of counterfactual consent will presumably overlap considerably with the standard of the child's welfare, but the two will diverge, especially as the child grows older. Diminished capacity is, after all, a matter of degree, and as the child matures, the case for regarding his expressed will as an accurate reflection of his counterfactual will grows steadily stronger.
94. Cf. Roderick T. Long, "Beyond Patriarchy: A Libertarian Model of the Family," Formulations 4, no. 3 (Spring 1997), 29. This account provides an explanation for why guardianship rights (specifically, the right to make decisions about what happens to the child) and guardianship duties (specifically, the duty to care for the child's welfare) come bundled together as they do. It is because we are justified in acting as a person's agent (and thus substituting our judgment for his) only when the decisions we make are those to which the person would (so far as we can determine) consent if unimpaired.
95. For an argument that enforcing the contract should mean requiring you to pay me, rather than requiring you to mow the lawn, see Randy E. Barnett, "Contract Remedies and Inalienable Rights," Social Philosophy and Policy 4, no. 1 (Autumn 1986): 186-95.