Compatibilism can resist prepunishment: a reply to Smilansky

July 5, 2017 | Autor: Stephen Kearns | Categoria: Philosophy, Analysis
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Tel-Aviv University Tel-Aviv 69978 Israel [email protected]

References Bernstein, A. R. and F. Wattenberg. 1969. Non-standard measure theory. In Applications of Model Theory of Algebra, Analysis, and Probability, ed. W. A. J. Luxemburg. New York: Holt, Rinehard and Winston. Lewis, D. 1980. A subjectivist’s guide to objective probability. In Ifs: Conditionals, Belief, Decision, Chance and Time, ed. W. L. Harper, R. Stalnaker and G. Pearce, 1981: 267–97. Boston: Reidel. Williamson, T. 2007. How probable is an infinite sequence of heads? Analysis 67: 173–80.

Compatibilism can resist prepunishment: a reply to Smilansky Stephen Kearns Saul Smilansky argues that ‘compatibilism cannot resist in a principled way the temptation to prepunish people’ (Smilansky 2007: 347). Compatibilism says that free will and moral responsibility are compatible with determinism. Prepunishment is the act of punishing people for crimes they have yet to commit. In order to argue that compatibilists should accept prepunishment, Smilansky asks us to assume that determinism is true and that we are able to completely predict the future. Given compatibilism, then, we are able to find out that people will freely commit crimes. Given this, why should we not prepunish them? As Smilanksy points out, prepunishment is usually considered to be morally abhorrent. Smilansky 1994 (a reply to New 1992) makes the plausible claim that prepunishing people for committing crimes means that we do not give these people the opportunity to change their minds about whether to commit these crimes. Furthermore, in order to properly respect persons, we must allow them the opportunity to remain innocent. This is a commonsense objection to prepunishment. However, Smilansky believes that the compatibilist does not have this objection open to her. He says: Analysis 68.3, July 2008, pp. 250–53. © Stephen Kearns

compatibilism can resist prepunishment 251 014 Compatibilism allows that (a) a person’s committing of a crime is completely determined, and yet (b) he commits it out of his own free will, hence he is morally responsible for it, and liable to blame and punishment. If we perfectly know now that it is completely determined that a person will commit a crime in (say) a week, out of his own (compatibilist) free will, the compatibilist does not have a strong principled objection to prepunishing this person now, before he has actually committed the crime. The common-sense objection, that we must allow him to change his mind, does not apply here; for according to compatibilism it is already determined that he will not change his mind. Thus, there seems to be no point, from a compatibilist perspective, for waiting. (Smilansky 2007: 348) His idea then seems to be this. (1) If compatibilism is true, then the commonsense objection to prepunishment does not apply. (2) If this objection does not apply, then prepunishment is acceptable. Therefore, if compatibilism is true, prepunishment is acceptable. It should be mentioned at this point that Smilansky must have in mind when presenting this kind of argument the type of prepunishment that does not prevent the foreseen crime from occurring. This is because one extremely obvious principled objection a compatibilist might have against the type of prepunishment that prevents the crime from occurring is that one ends up punishing a person who is entirely innocent of the crime for which he is punished. This is a very good reason not to allow such prepunishment. We do not in general think we should punish people for what they would have done in very different counterfactual circumstances. Furthermore, if we are able to predict only our actual future, then we will not be able to both predict crimes and prepunish those crimes in such a way that these crimes never take place. I will thus assume Smilansky is talking about prepunishment of crimes that will occur. Even given this stipulation, I believe both of the premisses of the above argument are false. Consider (1). According to many compatibilists, even if a person is determined to do something, she is still able to decide not to do this thing. Of course, she won’t decide not to do it, but she can. Thus before she commits a crime she is still able not to do so. Even if she firmly intends to commit the crime, she is able to change her mind. Therefore, she still has the opportunity to remain innocent. We must allow her this opportunity out of respect for her. After the crime occurs, this opportunity is lost. Beforehand, however, she is able to refrain from committing the crime. We must give her the chance to refrain. It seems, then, that Smilansky is assuming an incompatibilist reading of ability when he claims that compatibilists cannot appeal to the common-sense objection. This is

252 stephen kearns 014 obviously question-begging against the compatibilist. I will not explore premiss (1) further as I think there is a more interesting objection to premiss (2). Let us now, then, consider (2). This premiss says that we can have no principled objection to prepunishment if we cannot appeal to the commonsense objection. But this is false. To see this, let us imagine the following. Determinism is true. We are able to predict the future perfectly. We foresee that someone, who at present is a fine law-abiding citizen, murders a judge 21 years hence. Thus we prepunish this person by imprisoning him for 20 years. The judge who is to be murdered passes the sentence herself. After the prisoner is released, bitter from his time in prison, he murders the judge who sent him there as revenge. Justice is done! This is a stark example of an extremely large problem with prepunishment. The prepunishment itself may well be a cause of the crime. Even more common, the prepunishment will be counterfactually related to the crime in the following way: had the person not been prepunished, she would have not committed the crime. It is easy to see why both of these things will almost always be true, especially if the punishment is severe enough. If I imprison someone for ten years, she will lead an extremely different life from the life she would have led had I not imprisoned her. Almost all of her actions would have been entirely different had she not been prepunished. In particular, she would not have committed the crime for which she was prepunished. Indeed, this fact about prepunishment can lead to extremely strange consequences. It seems for instance that one person, A, may prepunish another person, B, for post-punishing A for prepunishing B. Thus we may imagine A correctly foresees that B will imprison A for ten years in around ten years’ time. Thus A prepunishes B by imprisoning him for ten years. B reacts to this by postpunishing A by imprisoning him for ten years. It is obvious that the people in the wrong in the above cases are those who instigate the prepunishment. If I know for certain that if I punch someone in the face extremely hard then he will punch me back, I cannot justify my punching him in the face by saying that it is prepunishment for the fact that he will punch me in the face. I started it! If anything, I am the one who deserves to be punched in the face (though that’s not an invitation). There is, then, a very good principled reason for the compatibilist to resist prepunishment. In general, one should not punish someone for a crime if it may be the case that, had this person not been punished, she would not have committed the crime. This is true because in such cases it is the so-called punishment that starts all the trouble in the first place.

compatibilism can resist prepunishment 253 014 The world would go better without the punishment. Indeed, it is difficult to even think of prepunishment as a type of punishment in cases in which, had a person not been prepunished, she would not have committed a crime. If, as in some of the cases I have mentioned, the crime eventually committed is against the prepunisher, then it seems as if it is the ‘criminal’ who is meting out the justice and not the prepunisher. It is the ‘criminal’ who is wronged and who gives the prepunisher what he deserves. Might Smilansky limit himself to the claim that compatibilists should think that prepunishment might be justified in those cases in which a person will commit a crime whether or not she is prepunished for it? I do not think so. Firstly, knowing that a person will commit a crime whether or not she is prepunished involves a lot more knowledge about the world than even a perfect predictor may possess. The kind of predictor we need would be one that knows what happens in many intricate counterfactual situations. Secondly, though a person may commit a crime whether prepunished or not, the reasons for which she commits the crime may be entirely different in each case. Thus if we prepunish her, we may render her reasons to commit the crime innocuous. Thirdly, even if prepunishment is justified in such cases, it is not simply compatibilism that justifies prepunishment. If a person would commit a crime whether or not she is prepunished, it seems that such a person may be in some sense fated to commit this crime. In such cases, a compatibilist can consistently claim that such a person may well not deserve punishment. Determinism may be compatible with free will, but fate is not. I conclude therefore that Smilansky has not shown that compatibilism cannot resist prepunishment. Prepunishment is so bizarre that it can be resisted by just about anybody.1 Florida State University Tallahassee 32306-1500, USA [email protected] References New, C. 1992. Time and punishment. Analysis 52: 35–40. Smilansky, S. 1994. The time to punish. Analysis 54: 50–53. Smilansky, S. 2007. Determinism and prepunishment: the radical nature of compatibilism. Analysis 67: 347–49.

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Thanks to Al Mele and Randy Clarke for discussions on this topic.

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